Com. v. Redding

• Decision Date: 16 December 1980
• Citation: 382 Mass. 154,414 N.E.2d 347
• Parties: COMMONWEALTH v. Darryl E. REDDING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 347

414 N.E.2d 347

382 Mass. 154

COMMONWEALTH v. Darryl E. REDDING.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 9, 1980.

Decided Dec. 16, 1980.

Willie J. Davis, Boston, for defendant.

Leonard J. Henson, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

The defendant, a codefendant with Jamie Cundriff, ante, was found guilty by a jury on seven indictments charging armed robbery while masked (G.L. c. 265, § 17), and one indictment of armed assault with intent to rob (G.L. c. 265, § 18). He was sentenced to serve concurrent terms of from fifteen to twenty-five years at the Massachusetts Correctional Institution at Walpole. We transferred the case to this court on our own motion.

Redding asserts that he was denied a fair trial due to (1) the Commonwealth's late disclosure of a statement made by a codefendant which he claims was exculpatory as to him; and (2) the admission in evidence of an identification made under impermissibly suggestive circumstances, which then tainted the witness's in-court identification of him. We affirm the convictions.

The main facts of this case are set out in Commonwealth v. Cundriff, --- Mass. --- ^a, 415 N.E.2d 172 (1980), the appeal of one of Redding's codefendants. The additional facts relevant to Redding's appeal are as follows. At approximately 2:30 P.M. on the day of the robbery, two Boston police officers saw four males running in the vicinity of the Casa de Hombre hairdressing salon. One officer identified Redding, whom he knew previously, as one of the four. This officer testified that because he knew Redding and his companion, the police decided to follow the other two men (the Cundriff brothers), whose identities the officers did not know at the time. Redding was identified as one of the persons involved in the robbery by one of the patrons in the Casa de Hombre.

At the outset we note that neither issue raised by Redding on appeal was based on an objection or exception properly taken at trial. ¹ Since the defendant has no right of appellate review in the absence of an exception, Commonwealth v. Williams, --- Mass. --- ^b, 399 N.E.2d 1074 (1980), Commonwealth v. Underwood, 358 Mass. 506, 509, 265 N.E.2d 577 (1970), we review his claims only to determine whether there has been a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967).

Late disclosure of exculpatory evidence. Redding argues that the belated disclosure of Jamie Cundriff's statement represents suppression of material evidence favorable to him. ² He alleges that this denied him the right to a fair trial guaranteed by the due process clause of the Fourteenth Amendment to the Constitution of the United States. See generally, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963); Commonwealth v. Wilson, --- Mass. ---, --- ^c, 407 N.E.2d 1229 (1980); Commonwealth v. St. Germain, --- Mass. ---, --- - --- ^d, 408 N.E.2d 1358 (1980); Commonwealth v. Ellison, 376 Mass. 1 ^e, 379 N.E.2d 560 (1978). The question raised is "whether, given a timely disclosure, the defense would have been able to prepare and present its case in such a manner as to create a reasonable doubt that would not otherwise have existed." Commonwealth v. Wilson, supra at --- ^f, 407 N.E.2d 1229. ³ The statement creates no such reasonable doubt. The evidence indicates that one of the officers saw Gregory Wilson (a codefendant) and Redding running with the Cundriff brothers in the vicinity of the Casa de Hombre not long after the robbery. One of the patrons at the Casa de Hombre identified Redding as one of the perpetrators of the various crimes. Thus there is no basis to conclude that the late disclosure of this statement either prejudiced Redding or created a substantial risk of a miscarriage of justice.

The defendant also argues that the delayed disclosure of the statement prevented him from considering other trial strategies. The short answer to this argument is that beyond advancing it, he offers nothing but conjecture on the effect of the delayed disclosure. ⁴ Redding did not seek any continuance from the judge to reconsider his trial tactics. In sum, there is no basis in this record which permits a conclusion "that the delayed receipt of the evidence 'affected the outcome of the trial,' " Commonwealth v. Wilson, supra at --- ^g, 407 N.E.2d 1229, quoting from United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976), or created a substantial risk of a miscarriage of justice.

We again stress that the prosecutor should make every effort to disclose to the defendant exculpatory evidence which is available to the prosecution. "The police are also part of the prosecution, and the taint on the trial is no less if they, rather than the State's Attorney, were guilty of the nondisclosure." Commonwealth v. St. Germain, --- Mass. ---, --- n.8 ^h, 408 N.E.2d 1358 (1980), quoting from Barbee v. Warden, Md. Penitentiary, 331 F.2d 842, 846 (4th Cir. 1964).

The photographic identification. Approximately three hours after the crime, one of the customers who had been inside the Casa de Hombre identified a picture of Darryl Redding as that of one of the robbers. He chose it from a group of twelve to fifteen photographs presented to him at the police station. Redding's name was written on the back of the picture; however, a policeman present at the identification testified that the name was written in a place where a person viewing the photograph from the front would not see it.

The witness subsequently identified Redding at the trial. He testified that while the robbery was in progress and he was lying on the floor, he "kept turning" his head in order to observe the goings-on. The witness stated that at one point he saw the robbery he identified as Redding lift his mask partially off his face, allowing him to see Redding's nose, and to "just barely" see his eyes.

The defendant argues that the photographic identification was improperly suggestive, and therefore neither it nor the subsequent in-court identification of the defendant by the witness should have been admitted into evidence.

According to Redding, several factors combined to render the identification impermissibly suggestive, including the short time the witness had to view the robber's...