Com. v. Santos
| Decision Date | 11 July 1988 |
| Citation | 402 Mass. 775,525 N.E.2d 388 |
| Parties | COMMONWEALTH v. Louis SANTOS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Walter T. Healy, Frank G. Kelleher and James E. McCall, Boston, with him, for defendant.
Judy G. Zeprun, Asst. Atty. Gen. (Ronald Moynahan and Margaret Steen Melville, Asst. Dist. Attys., with her) for Com.
Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and O'CONNOR, JJ.
The defendant, Louis Santos, appeals from his convictions of murder in the first degree on a theory of felony-murder, armed robbery, assault and battery by means of a dangerous weapon, and armed assault with intent to rob. For the reasons stated in this opinion, we reverse and remand for a new trial.
We summarize the facts. At about 5 P.M., on October 28, 1983, Colleen Maxwell, a social worker, was accompanying Charles Bartick, a thirty-two year old man born with Down's syndrome, to the Ashmont subway station in the Dorchester section of Boston. Bartick was a resident of Van Winkle House, a supervised community residence for retarded adults on Van Winkle Street in Dorchester. As Bartick and Maxwell walked along a walkway leading from Van Winkle Street to the subway station, they were confronted by three young black males. One man said, "Give me your fuckin' money," to Bartick and Maxwell. One of the other men pointed a gun at Bartick. Bartick pushed the gun away with his arm, then the third man, who wore a gold ring, hit Bartick on the head with the ring. The three men took Maxwell's money and left. Maxwell ran after them.
Shortly after 5 P.M., Nicola Garofalo, a mental health assistant for the Department of Mental Health, was outside Van Winkle House when he heard screaming and saw Maxwell approaching the house. Maxwell was searching in her purse for her keys and was very upset. She told Garofalo that she had been robbed and that Bartick was hurt. She asked Garofalo to pick Bartick up at the subway station. Maxwell got in her automobile and drove away from the house. Garofalo found Bartick at the subway station. Bartick was bleeding from his head. Garofalo took Bartick to Van Winkle House where a counselor tended to his wound and then took Bartick to a hospital where he received stitches to his head. Garofalo went looking for Maxwell.
Meanwhile, at about 5:30 P.M., William Whall, a resident of nearby Dorchester Avenue, was driving home. At the intersection of Van Winkle Street and Dorchester Avenue, he noticed a lone black male, approximately seventeen years old, standing on the corner of Van Winkle Street hailing a taxicab. The young man was joined by three other young black males, two of whom were fourteen or fifteen years of age and one of whom was about seventeen years of age. Whall saw a woman, later identified as Colleen Maxwell, drive out from Van Winkle Street sounding her horn and pursuing the group of youths down Dorchester Avenue. The woman cut the group off at Mercier Avenue. Whall heard a couple of "pops" which he believed were gunshots. Whall saw the young men running down Dorchester Avenue. He lost sight of them in the area of Sullivan's Confectionery. Whall saw an automobile stopped in the middle of Mercier Avenue with the driver's door open. Colleen Maxwell was sitting on the sidewalk bleeding profusely from her nose and mouth. An ambulance came for Maxwell, who later died of a bullet wound.
At approximately 5:30 P.M., William Marinelli and Kevin Hagberg, two high school students, were in the vicinity of Dorchester and Mercier Avenues when they heard gunshots. About ten seconds later, they saw three black males run down Mercier Avenue onto Dorcester Avenue in the area of Sullivan's Confectionery. One of the young men was wearing a blue windbreaker, another was wearing an orange or red parka and the third was wearing a grey sweatshirt. Hagberg noticed the butt of a gun sticking out of the pocket of the orange or red parka.
Hagberg and Marinelli turned onto Mercier Avenue where they saw Maxwell lying on the ground. When the police arrived, Hagberg and Marinelli told them they had seen three young men fleeing the area. They got into the police car with Officers Egan and Wilson and proceeded to search the area. Hagberg estimated that the three young men were aged fourteen to seventeen, and that the man in the blue jacket was approximately seventeen. While in the police cruiser, Hagberg and Marinelli heard a radio broadcast concerning a foot pursuit. At some point, the police showed Hagberg and Marinelli a suspect. The suspect was not one of the three men Hagberg and Marinelli had observed running near the scene of the shooting.
Meanwhile, Officers Robert Flynn and William Baker were cruising the Codman Square area of Dorchester looking for the suspects. They observed five to eight black males, aged fifteen to twenty, at the entrance to the basketball court in Evans Park. They turned the cruiser around and drove back by the playground. At that time, three of the young men started running. The defendant was wearing a blue jacket, another man was wearing a grey jacket, and the third man was wearing a red parka. Officer Baker pursued the defendant and the man in the grey jacket on foot. The two suspects separated on Stanton Street, at which point they ran onto the street in front of a parked police cruiser. Officer Paul Donahue, who had heard reports of the chase on the police radio, jumped out of the cruiser and chased the defendant. Officer Baker continued to chase the man in the grey jacket. Officer Donahue apprehended the defendant on the porch of a house on Dyer Street.
Officers Egan and Wilson went to the house on Dyer Street. Hagberg and Marinelli were still in the back of the police cruiser. As the defendant emerged from the house, Officer Wilson heard someone in the back seat say, Officer Wilson turned to Hagberg and Marinelli and asked them if they were sure that the defendant was one of the men they had seen earlier. They answered affirmatively. Later that night at the police station, Marinelli and Hagberg also identified the defendant as one of the men they had seen running in the vicinity of Colleen Maxwell's shooting. 1 The defendant was the only black male in the office.
At the police station, the defendant denied shooting Maxwell and he stated that he did not believe that two people had already identified him. He told the police that he had left his house at approximately 4:15 P.M. that day and had played basketball with nine other people for thirty to forty-five minutes. The defendant could only name two other people with whom he had played. The defendant stated that he had run from the police because he possessed some marihuana, and that the other man who ran away was selling it. The defendant possessed no marihuana when booked; he told the police that he discarded it during the chase. Later that evening, the defendant accompanied a police officer to the spot where he said he had dropped the marihuana, but none was found.
The next day, Michelle Bernard, a nine year old girl, found a wallet containing papers belonging to Colleen Maxwell in an uncovered garbage can outside her home along a route from the site of Colleen Maxwell's murder and the park where the police initially saw the defendant.
Prior to trial, the defendant moved to suppress the one-on-one identifications of the defendant. The motion judge declined to suppress the initial identifications Hagberg and Marinelli made outside the house on Dyer Street; however, the judge suppressed the one-on-one stationhouse identifications on the ground that they were not justified by exigent circumstances. The defendant filed a motion seeking to suppress Bartick's stationhouse identification of the defendant. 2 The trial judge denied that motion.
1. The identifications.
a. Bartick's stationhouse identification. The judge found that Bartick was a thirty-two year old man suffering from Down's syndrome. Bartick could be described as moderately retarded with an I.Q. somewhere between thirty-five and forty-nine. Bartick was unable to conceptualize abstractions, could not describe the passage of time (although he knew how to tell time), could not read, and could write only his name.
Four hours after the robbery, Bartick identified Louis Santos as one of Colleen Maxwell's assailants at a one-on-one confrontation at the Area C police station. Bartick had earlier described the assailants as three black males, one of whom had a handgun. During his voir dire testimony, elicited in response to defense counsel's motion to suppress Bartick's stationhouse identification, Bartick stated that the assailants had "brown" faces, yet he identified two white males, a police detective and a member of the defense staff, as two of Maxwell's assailants. 3
We consider whether the judge committed an error of law in admitting the identification because the identification procedure was unconstitutionally suggestive and thus violative of the defendant's due process rights. Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986), quoting Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 1241, 51 L.Ed.2d 424 (1977). See Commonwealth v. Murphy, 362 Mass. 542, 551, 289 N.E.2d 571 (1972) (Hennessey, J.,...
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