Com. v. Ross

• Citation: 282 N.E.2d 70,361 Mass. 665
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 27 April 1972
• Parties: COMMONWEALTH v. James ROSS, Jr. (and eight companion cases 1 ).

Page 70

282 N.E.2d 70

361 Mass. 665

COMMONWEALTH v. James ROSS, Jr. (and eight companion cases ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 6, 1971.

Decided April 27, 1972.

Mary C. Kingsley, Boston (Reuben Goodman, Boston, with her), for Roy Daniels, Jr., and another.

Michael G. West, Cambridge, for James Ross, Jr.

Gerald F. Muldoon, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and CUTTER, REARDON, QUIRICO and BRAUCHER, JJ.

TAURO, Chief Justice.

The defendants Ross, Daniels, and Williams appeal under G.L. c. 278, §§ 33A--33G, from convictions on nine indictments arising out of an armed robbery of Timothy Lehane, a security guard at Boston University. Each defendant was charged with armed robbery, assault with a dangerous weapon, and assault and battery with intent to murder. The principal assignments of error argued on appeal relate to the trial judge's refusal to suppress the in-court identification of the defendant Daniels by the victim Lehane and the incourt identifications of all three defendants by a witness, Howard Lembeck. In addition, the defendant Ross argues that the judge erred in admitting evidence of an inculpatory gesture by him, in admitting certain paper money in possession of the defendant Daniels, and in denying his request that the judge ask certain questions of proposed jurors to determine possible racial prejudice.

From the evidence presented at voir dire and at trial, the following appears: On March 6, 1970, at 4 A.M. a black 1960 Oldsmobile containing three black males pulled up beside the pumps at Silva's Texaco Station, 601 Commonwealth Avenue, Boston. Howard Lembeck, the attendant on duty, conversed with the men, who remained inside the automobile. He sold one of them an inflated plastic rabbit. At one point, he leaned inside the car and passed out cigarettes to each of the men and, at another point, the men asked whether the Boston University radio tower was open, and Lembeck replied, 'I don't know.' Apart from two brief visits to the station office, Lembeck stood next to the Oldsmobile beside the rear window on the passenger's side. Allegedly, the defendant Ross was seated in front on the driver's side, the defendant Williams in front on the passenger's side, and the defendant Daniels in back on the passenger's side. The area in which the vehicle was parked illuminated by floodlights.

After fifteen or twenty minutes, Lehane drove into the pump area of the filling station in an unmarked Boston University security automobile. The man identified as Daniels questioned Lembeck about Lehane, and Lembeck told him that Lehane was a security guard at Boston University. This man then got out of the Oldsmobile and, carrying the plastic rabbit, approached Lehane who, in the meantime, had gotten out of his vehicle. In plain view of Lembeck, the man and Lehane conversed for approximately two minutes in which time the man offered to sell Lehane the plastic rabbit. He also asked whether 'Eddie' was over at the School of Public Communications and Lehane answered that he would go over and find out. Following the conversation, Lehane left the filling station and drove up Commonwealth Avenue to the School of Public Communications. The man identified as Daniels and his two companions followed in the Oldsmobile and parked two car lengths in front of Lehane's car on Hinsdale Street. A brutal and unprovoked attack ensued in which Lehane received serious, multiple stab wounds. The man identified as Daniels was the first to attack but the other men later joined in. At one point an assailant said, 'Get his gun,' and then the victim felt a hand reach into his pocket and take his wallet. The three men then left Lehane bleeding, on the ground. Back at the filling station, five or ten minutes after Lehane and the three men had left, the attendant Lembeck observed the black 1960 Oldsmobile coming down Commonwealth Avenue at a high rate of speed with three black male occupants.

Later the same morning at approximately 6 A.M., two Boston police officers in a patrol car observed a black Oldsmobile turn from Dartmouth Street onto Tremont Street, through a flashing red light, at about fifty miles an hour. The officer driving the patrol car was aware of the assault at Boston University about an hour earlier. After a pursuit on Tremont Street, the police officers stopped the Oldsmobile and took the occupants, four black men, into custody. There was a large pink bunny with visible red stains on the rear deck. At this time a cursory search was made of the men. Later at station 4, while making an inventory of the defendants' possessions, one of the arresting officers removed a wallet, folded in thirds, from the defendant Daniels's outer coat pocket. He slid the wallet across a sloping desk to the booking officer, the fold opened, and out fell a five dollar bill and two ones. Upon observing bloodstains on two of the bills, the police segregated all three bills from the wallet and kept them for further investigation.

Still later in the morning, two police officers interviewed Lembeck at the filling station. Lembeck then went with the officers to the police station, where he made a written statement, and then to the Roxbury District Court, where he observed the defendants Ross and Daniels and a third man in the 'lockup' area and later at the arraignment. On voir dire, Lembeck testified that, without any direction from police he scrutinized about a dozen men in the 'lockup' area and that privately in his own mind he picked out Ross and Daniels. At trial, he was permitted to testify that the defendant Ross gestured to him from within the wire enclosure by raising a finger to his lips suggesting silence. Also on voir dire, he testified that he identified Ross and Daniels for the police after watching the arraignment but that he did not identify the third man arraigned with them. The defendant Williams, the fourth man in the car, was not present at the arraignment.

About a week later, Lembeck identified the defendant Williams after viewing a group of fourteen police photographs of black males the same age as the defendants. These included pictures of Ross, Daniels, and the third man at the arraignment. Lembeck knew at this time that the police held a fourth suspect who had not been present in the District Court. Lembeck first viewed the pictures at the filling station and made his identification of Williams on the second run through the photographs. He also identified Ross and Daniels. He was then taken to the police station where he again looked at the photographs and identified Williams. Approximately three months later, there was a third showing of the photographs, this time at the district attorney's office. On the same day, Lehane also visited the district attorney's office and viewed the photographs separately. He identified only the defendant Daniels.

After the voir dire hearing the judge below denied the motions of all the defendants with respect to in-court identification testimony but did allow the defendants' motions in so far as they might be 'construed as motions to suppress the Commonwealth's offering of the photographic identification procedures by the witnesses Lembeck and Lehane, and the Roxbury courthouse identification procedures by the witness Lembeck.' Later at trial, however, the judge limited his last ruling to the extent that he allowed Lembeck to give testimony concerning the attempt by the defendant Ross to communicate with Lembeck by gesture at the Roxbury District Court.

1. Each defendant contends that the judge erred in permitting Lembeck to identify him at trial. The defendants Ross and Daniels maintain, principally in reliance upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, that Lembeck's in-court identifications were the fruit of impermissibly suggestive pre-trial lineups, conducted in the absence of counsel, in violation of the right of the defendants to counsel, and to a fair trial. In addition, the defendant Ross contends on the basis of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, as does the defendant Williams, that Lembeck's in-court identifications were tainted by prior photographic identification procedures.

The judge after making detailed subsidiary findings on all the issues of identification concluded as follows: 'The circumstances surrounding the identification procedures by Mr. Lembeck at the Roxbury courthouse have not been shown in enough detail before me to demonstrate an illegality in those procedures. Nor has any illegality been demonstrated re the photograph(ic) identifications made by the witness . . . Lembeck . . .. However, even assuming the illegality of these procedures, I find that . . . the incourt identifications of all three defendants by the witness Lembeck are independent of the in-custody procedures and are therefore valid.'

The judge ruled that the Commonwealth had satisfied its burden of proving the independence of the in-court identifications by 'clear and convincing evidence' as United States v. Wade, supra, 388 U.S. at 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149, requires. There was an ample evidentiary basis to support the judge's conclusion.

We deal first with the pre-trial identifications of Ross and Daniels. While there may have been an element of suggestiveness in Lembeck's confrontations with the defendants at the Roxbury court house, we believe that the judge correctly emphasized Lembeck's prior opportunity to observe the men at the filling station earlier the same morning. The pump area of the filling station was well lighted, and Lembeck could see the features of the three occupants clearly. Although he talked mainly with Daniels, he had some conversation with all three men, he was in their presence for...