Com. v. Spann

• Decision Date: 12 March 1981
• Citation: 418 N.E.2d 328,383 Mass. 142
• Parties: COMMONWEALTH v. Kenneth SPANN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 328

418 N.E.2d 328

383 Mass. 142

COMMONWEALTH v. Kenneth SPANN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 4, 1980.

Decided March 12, 1981.

Willie J. Davis, Boston, for defendant.

Jeremiah P. Sullivan, Asst. Dist. Atty., for the Commonwealth.

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

WILKINS, Justice.

The defendant appeals from his conviction of murder in the second degree and from the denial of his motion for a new trial. We affirm the conviction and the order denying the motion for a new trial. We find no occasion to disturb the verdict pursuant to our power and duty under G.L. c. 278, § 33E, to review the entire case. See Commonwealth v. Davis, --- Mass. ---, --- - --- ^a, 401 N.E.2d 811 (1980).

We set forth briefly the evidence against the defendant, leaving certain details for presentation when we discuss the defendant's specific contentions on appeal. The victim's body was found in Franklin Park, Boston, in the early morning of February 5, 1979. She had received a massive blow to the head with a blunt object and died of stab wounds, many of which were inflicted with great force. One Dean Richardson testified that on February 3, while he was at the defendant's apartment, the defendant said that he had killed a woman and that her body was in the lower inside hallway outside the defendant's apartment. Richardson, at the defendant's urging, went to the upper hallway and looked down over the banister, and saw a woman's body. On February 4, the defendant asked Richardson to help him get rid of the body, and Richardson refused. On April 10, Richardson, who had become fearful of the defendant, reported the February 3 incident to the police and later that day identified a picture of the victim as the person whose body he had seen in the hallway. In addition to Richardson's testimony, there was evidence that (a) traces of blood of the victim's blood type were found in the hallway and in the defendant's automobile, (b) her injuries were consistent with the use of a knife owned by the defendant, and the use of a post from the banister outside the defendant's apartment, (c) the impression of a partial footprint of a sneaker on the victim's coat found near her body was similar to the impression made by a sneaker owned by the defendant, (d) a bloodstained gold ring similar to one regularly worn by the victim, but not found on her body, was found under a rug in the defendant's bedroom, and (e) the defendant had scratches on his neck and was wearing a bandaid on February 2, the date of the victim's disappearance.

1. The defendant argues that the judge should have dismissed the indictment because the prosecution improperly denied the defendant a probable cause hearing. In support of his motion to dismiss the indictment, the defendant presented an affidavit from the attorney who had been his counsel (not his counsel at trial and on appeal) in the District Court of Dorchester where he was arraigned on May 4, 1979. At that time, the judge set May 14, 1979, as the date for a probable cause hearing. On May 11, 1979, according to the affidavit, an assistant district attorney requested the defendant's counsel to agree that the probable cause hearing be rescheduled for a date in June. Defense counsel agreed to June 8 "provided that the Suffolk County District Attorney, on behalf of the Commonwealth, prior thereto was not going to seek an Indictment from the Grand Jury in the Suffolk County Superior Court, which would circumvent the probable cause hearing in the District Court." The affidavit continues, stating that the assistant district attorney "assured me that it was his intention to proceed with the probable cause hearing as agreed to on June 8, 1979." We read the assistant district attorney's answer as at best equivocal. It certainly was not an express promise that there would be no indictment.

The affidavit recites that on May 14, 1979, the date originally set for the probable cause hearing, defense counsel and the assistant district attorney spoke at the District Court of Dorchester. Defense counsel requested a letter from the assistant district attorney "confirming, in writing, that it was his intention, as far as he knew, to proceed with the probable cause hearing in the District Court of Dorchester. He stated then and there that he would send me such a confirmation letter, and did not think there would be any problem in giving me such a letter." No such letter was ever received. An indictment against the defendant was returned on May 25, 1979, thus abrogating the otherwise applicable statutory requirement that a probable cause hearing be held. G.L. c. 263, § 4.

When the motion to dismiss was heard in the Superior Court on the day trial commenced, former defense counsel, who had handled the case in the District Court, was not available to testify. The prosecutor made no attempt to offer evidence from the District Court prosecutor nor did he deny the accuracy of the representations in the affidavit. The judge treated the matter on the affidavit and denied the motion.

The defendant rightly does not argue that he was entitled to a probable cause hearing in all events. See Lataille v. District Court of E. Hampden, 366 Mass. 525, 531, 320 N.E.2d 877 (1974). He argues that the prosecution promised that his client would not be indicted before a probable cause hearing had been held. He points to the statutory guaranty that a probable cause hearing cannot be continued for more than "ten days at any one time against the objection of the defendant." G.L. c. 276, § 35. He argues that his agreement to a continuance for more than the ten-day statutory period (from May 14 to June 8) was conditioned on the prosecutor's promise not to indict the defendant in the interim. If such a promise had been made, and if the defendant had relied on it to his detriment, we would hold the prosecution to its promise and would reject any attempt to repudiate that promise. See Commonwealth v. Tirrell, --- Mass. ---, --- ^b, 406 N.E.2d 689 (1981); Commonwealth v. Benton, 356 Mass. 447, 448-449, 252 N.E.2d 891 (1969); Commonwealth v. St. John, 173 Mass. 566, 569-570, 54 N.E. 254 (1899). See also Lataille v. District Court of E. Hampden, supra at 531 n.6, 320 N.E.2d 877. Holding the prosecution to its promise would not, however, necessarily require dismissal of the indictment. Granting the defendant a probable cause hearing would constitute specific performance of the promise, and the defendant did not seek that form of relief. ¹

We conclude that the statements attributed to the District Court prosecutor did not amount to a promise that an indictment would not issue. What defense counsel should have obtained, preferably in open court at the time the probable cause hearing was continued to June 8, was an express statement that an indictment would not be sought until after the probable cause hearing was held. ² What defense counsel sought and received instead was a much more limited assurance, one which contained no guarantee of the sort the defendant argues he obtained. The prosecutor was asked to write that "as far as he knew" there would be a probable cause hearing, and the prosecutor answered that he "did not think there would be any problem in giving" such an assurance. The limited request ("as far as he knew") and the uncertain response ("did not think there would be a problem") shows that both the prosecutor and defense counsel knew that higher authority within the district attorney's office might reach a determination to seek an indictment. No commitment was given not to indict the defendant before the scheduled probable cause hearing. There was no promise on which the defendant reasonably could rely.

2. The defendant asserts that the photographic identification of the victim by Dean Richardson was unduly suggestive and conducive to a prejudicially mistaken identification. In this respect, the defendant seeks to have us apply the constitutional principles applicable to the photographic identification of a suspect to a similar identification of a deceased victim of a crime. He cites no case in which a court has taken such a position, and we have found none. We recently considered a similar claim in Commonwealth v. Simmons, --- Mass. --- ^c, 417 N.E.2d 1193 (1981), in which the defendant challenged as impermissibly suggestive the identification procedures used in the viewing of his automobile. We rejected the argument that the same constitutionally prescribed procedures used for identifying suspects applied to procedures used in identifying inanimate objects. Id. at --- - ---, ---, ^d 417 N.E.2d 1193. We did recognize, however, that, in "an extreme case," the degree of suggestiveness of an identification procedure concerning an inanimate object might be so great as to contravene a defendant's due process rights (id. at --- ^e, 417 N.E.2d 1193), but concluded that the defendant there failed to present such a case (id. at --- - --- ^f, 417 N.E.2d 1193).

Considering the evidence presented on the defendant's motion to suppress in light of our Simmons opinion, we find no ground for suppressing Richardson's photographic identification of the victim. The judge appropriately conducted a voir dire on the defendant's motion to suppress Richardson's identification of the victim. He denied the motion. ³ Richardson testified at the hearing that he was at the defendant's apartment on February 3, 1979, and went over to the stairs and looked down over the banister. He saw the body of a dead woman. On April 10, a police officer showed Richardson a photograph of two men and two women and asked him whether he saw in the photograph the woman whose body he had seen in the hallway. He immediately identified one of the women as the victim. A police officer testified that the police had no other photographs of the victim before her death to show to Richardson. The officer further testified that he...