Com. v. Simmons
| Citation | 417 N.E.2d 1193,383 Mass. 46 |
| Parties | COMMONWEALTH v. Julius SIMMONS. |
| Decision Date | 27 February 1981 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Michael D. Cutler, Boston, for defendant.
W. James O'Neill, Asst. Dist. Atty., for the Commonwealth.
Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and ABRAMS, JJ.
About ten days before the start of the defendant's trial on indictments for rape, armed assault with intent to murder, and assault and battery by means of a dangerous weapon, two police officers took the victim onto private property, owned by the defendant's mother-in-law, to view a motor vehicle that was parked near the driveway. The assistant district attorney in charge of the case instructed the police to make arrangements for the victim to see the motor vehicle because in a pretrial interview she had been unable to identify the model of the motor vehicle driven by her assailant. Without a search warrant, two police officers took the victim to the property where she looked at and in the motor vehicle. At trial, she described the vehicle driven by her attacker and further testified that the vehicle parked on the property was the one driven by the defendant on the night of the attack.
Not more than thirty minutes before the commencement of the trial, the assistant district attorney told defense counsel of the victim's out-of-court identification of the motor vehicle. Defense counsel moved for a continuance in order to prepare and present appropriate motions. He argued that the recent inspection of the motor vehicle violated his client's constitutional rights and so tainted the victim's identification testimony that it should be excluded.
The judge denied the motion for a continuance, no voir dire hearing was held on the admissibility of the identification evidence, and the case went to trial. Because of the suddenness with which the identification issue was presented to defense counsel, in fairness we treat the defendant's objections as presenting both a request for a continuance and a request for a voir dire hearing on the impermissible suggestiveness of the identification procedure and on the claimed unreasonable search of the motor vehicle.
Although a voir dire is not constitutionally required in all instances in which the admissibility of identification evidence is challenged, the better course would have been to have conducted a voir dire on the admissibility of the victim's identification of the motor vehicle. See Watkins v. Sowders, --- U.S. ----, ----, 101 S.Ct. 654, 658, 66 L.Ed.2d 549 (1981). Because no voir dire was held and the case proceeded to trial, we assess the record to see whether there is a reasonable possibility not necessarily a certainty that the defendant may have been unfairly prejudiced by the admission of the identification testimony. 1 We conclude that there is no basis on due process or common law evidence grounds for suppressing evidence of the identification. We do not accept the defendant's argument that constitutional principles concerning one-to-one confrontations between victims and suspects should be applied to "confrontations" between a victim and an inanimate object. Granting that in some instances due process considerations might limit the admissibility of testimony of an identification of an inanimate object, we conclude that this case simply does not present such a situation.
We are not certain, however, that the intrusion on private property to view the motor vehicle was not a violation of the defendant's constitutional right against unreasonable searches. We reject any suggestion that, if there was a constitutional violation, the admission of the victim's testimony of her out-of-court identification of the motor vehicle was harmless error. The defendant was not in a position to present evidence on the warrantless search issue on the day trial started. Therefore, we remand the case for a hearing on this point. If there was a violation of the defendant's constitutional rights, there will have to be a new trial.
Before stating the reasons for our conclusions, we summarize the case presented against the defendant. On a Friday evening, in October, 1977, between 7 P.M. and 7:30 P.M., the victim was walking on a public way in Hyannis and planning to hitchhike to her home. A man driving a light blue Mustang stopped and offered her a ride. She noted that the car had bucket seats, a floor shift, a glove compartment, dents on its black dashboard, and wires hanging down from the radio. The driver of the car took her to a somewhat secluded spot. When she rejected his offer to have sexual intercourse, he stabbed her with a knife, ordered her from the car, and raped her. He strangled her and threatened to kill her if she said anything about the incident and then drove off. A passing motorist took the victim to a fire station.
At trial, the victim identified the defendant as her attacker. There was police testimony that the victim made two photographic identifications of the defendant within two days of the incident in circumstances the defendant does not now challenge. On redirect examination, the victim testified that nine days before trial she had seen the same motor vehicle as that operated by her assailant, a blue Mustang. At the request of and in the company of two detectives she went to see the vehicle. She recognized the front seats and the dents on the dashboard and also the wires hanging out of the radio in front of the dashboard. On recross-examination, she testified that the car was parked in a private yard. No one opened the car door but she looked in through the passenger window. There was police testimony that the motor vehicle was the same one that the defendant had been seen driving the night of the crimes.
A Barnstable police officer testified that, when questioned at a hospital shortly after the incident, the victim, who was in pain and incoherent, stated that her attacker's vehicle was "a small vehicle, a Volkswagen-type of vehicle." She mentioned additionally the bucket seats, and floor shift, and that there were wires hanging down from the radio. It was the victim's reference to her attacker's vehicle as a Volkswagen-type of vehicle that prompted the assistant district attorney to be concerned about her ability to identify the vehicle.
The defendant was found guilty of each of the three crimes. We granted his motion for direct appellate review of his appeal.
1. We consider first the defendant's contention that the circumstances in which the victim viewed the defendant's motor vehicle denied him due process of law and a fair trial because it was an impermissibly suggestive confrontation. Relying on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), he argues that the same constitutional principles that govern a confrontation between a witness and a suspect should apply to the identification of an inanimate object. The defendant notes that, under both the Constitution of the Commonwealth and the Constitution of the United States, one-to-one show-ups, although not per se invalid, are regarded as most susceptible to the influence of suggestion and consequent mistaken identification. See Commonwealth v. Jackson, --- Mass. ---, ---, a 386 N.E.2d 15 (1979); Commonwealth v. Nolin, 373 Mass. 45, 51, 364 N.E.2d 1224 (1977). He notes further that disapproval of one-to-one confrontations has extended beyond in-person identifications to photographic identifications (Simmons v. United States, 390 U.S. 377, 383-384, 88 S.Ct. 967, 970, 19 L.Ed.2d 1247 (1968); Commonwealth v. Gilday, 367 Mass. 474, 494-495, 327 N.E.2d 851 (1975)), and to voice identifications (Commonwealth v. Torres, 367 Mass. 737, 740, 327 N.E.2d 871 (1975)).
No court to our knowledge has applied principles applicable to pretrial identifications of suspects to pretrial identifications of inanimate objects. Those few opinions that have dealt with this issue are unsupportive of the defendant's argument. In Inge v. Commonwealth, 217 Va. 360, 228 S.E.2d 563 (1976), a witness was taken to a parking lot to look at the defendant's truck. Police officers were photographing it as the witness approached. There was no vehicle of similar design nearby. The witness was permitted to testify that the vehicle appeared to be the same truck he had seen on the night of the crime. The Supreme Court of Virginia upheld the admission of the identification evidence, declining "to hold that a lineup is required for the identification of an inanimate object possessed by a suspect" because "the one-on-one identification of (the) vehicle presents questions as to the credibility of the witness and the weight of his testimony rather than an admissibility question of constitutional dimension." Id. at 365, 228 S.E.2d 563.
A Pennsylvania court upheld the admission of identification testimony of a bag and a barrel of a gun which the police showed the witness shortly after the commission of a crime. Commonwealth v. Carter, --- Pa.Super. ---, ---, 414 A.2d 369 (1979). The court noted "the enormous probative weight" of evidence identifying the accused and that identification of an item of real evidence "does not generally have this effect." Id. Id. 2
Although we are aware of no case in which due process considerations have led to the suppression of an...
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