Com. v. Stewart

• Citation: 309 N.E.2d 470,365 Mass. 99
• Parties: COMMONWEALTH v. Francis K. STEWART.
• Decision Date: 10 April 1974
• Court: United States State Supreme Judicial Court of Massachusetts

Page 470

309 N.E.2d 470

365 Mass. 99

COMMONWEALTH v. Francis K. STEWART.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 4, 1974.

Decided April 10, 1974.

James V. McManus, Boston, for defendant.

Bonnie H. MacLeod-Griffin, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ.

KAPLAN, Judge.

About 9 P.M. on March 4, 1970, Willard Iversen, night manager, and James Moore, meat cutter, were standing behind the entrance doors of the First National supermarket in Reading. Iversen was preparing to secure the doors and close the store; some carts left on the outside were being brought in. Iversen and Moore then observed the defendant and another man, full face, making their way from the outside through the outer and inner glass doors. (There was excellent lighting throught.) As the defendant entered, with the second man behind him, Iversen said that he was sorry, the store was closed. The defendant produced a gun in his right hand and ordered Iversen to take him to the safe. At the same time the second man seized Moore by the back of his jacket and began 'hustling' him.

On entering and showing the weapon, the defendant had attempted with his left hand to pull up a mask (resembling a surgical mask) from around his neck to cover his mouth and nose, but it fell to his chin. The second man, attempting the same maneuver with his mask, evidently was better able to adjust it over his nose.

In response to the defendant's command to go to the safe, Iversen, turned; the defendant put his gun to Iversen's back; Iversen, with the defendant behind him, began walking toward the area of the store where the safe was located. As he felt the pressure of the gun, Iversen turned his head, again seeing the defendant full face, and said, 'Please don't shoot.' Meanwhile Moore, while being shoved along, had a side view of the defendant. All four arrived at the safe. It was shut but not locked. The defendant pulled open the door of the safe with his left hand. The second man withdrew from the safe six banded packets, each of 100 one dollar bills, and $20 in nickles, and put the money in a bag which he produced from inside his coat. Moore had the defendant in sight while the money was taken from the safe; what view Iversen had at the time was not brought out so plainly in the record. As the second man said that he had all the money, or words, to that effect, he and the defendant started running to the entrance door. They fled in a yellow Mustang. A boy, who while pushing carts had seen the defendant and the second man entering the store and commandeering Iversen and Moore, now observed the robbers making their getaway. He noted the license plate number and promptly told Iversen, who called the Reading police.

The police quickly caught up with a yellow Mustang. A chase followed in which shots were fired from that car. This and other ensuing events need not be recounted. Within an hour the defendant and the second man had been apprehended, brought to the Reading police station, and arrested.

On evidence as sketched above, together with in-court identifications by Iversen, Moore, and the boy, and other proof, the defendant was found guilty by a Middlesex jury on an indictment for armed robbery of the property of First National from the person of Moore, and an indictment for illegal possession of a firearm; the jury acquitted him on an indictment charging armed assault with intent to murder. His appeal under G.L. c. 278, §§ 33A--33G, raises four points. We find no error. The second point, however, prompts us, pending formulation and adoption of Rules of Criminal Procedure, to outline a procedure to be followed in the future with respect to the disclosure of grand jury testimony to the defence for use during trial.

1. The defendant claims error (assignment 4) in the judge's refusal to suppress the in-court identifications of the defendant by Iversen and Moore, on the ground that these were indelibly tainted by the 'one on one' identifications of the defendant by these witnesses which occurred at the Reading police station sometime after ten o'clock on the night of the robbery. At a pre-trial hearing before the trial judge on the defendant's motion to suppress, it appeared that, after receiving Miranda warnings at the station house, the defendant telephoned his attorney who spoke with a police officer on duty and requested, in effect, that no identification be attempted until he, the attorney, arrived. The police had asked Iversen and Moore to come to the station to see whether they could recognize some suspects who had been picked up. Iversen and Moore went to the station and, on seeing the defendant without other persons (or other civilians) present, they separately indicated that he was one of the robbers (the one with the gun). The defendant's attorney arrived at the police station after these identifications had been made.

The Commonwealth, considering the identifications at the station to have been unfair to the defendant, was content to have them suppressed, ¹ the judge so ordered, and there was no reliance on them at trial. The question, then, was whether the observations made by the witnesses on the occasion of the robbery itself provided an independent, uncontaminated source for in-court identifications. The witnesses were examined and cross-examined at the pre-trial hearing as to their viewing of the defendant during the robbery, and the judge found firmly that the independent basis existed. A glance back at our sketch of the facts of the robbery will indicate that there was plenty of ground for the judge's finding. See COMMONWEALTH V. DENAULT, MASS. (1972) 289 N.E.2D 863;^A United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

2. The defendant's counsel made repeated motions--including motions before trial, after the direct examination of Iversen as a Commonwealth witness at trial, and after Iversen's recrossexamination--for an opportunity to read the testimony that Iversen had given before the grand jury or, failing that, for an undertaking on the part of the judge that he would himself read the grand jury testimony and, if he saw fit, disclose it to counsel. ² The motions were denied (assignment 8). It is the refusal to give access to the grand jury testimony after Iversen had testified at the trial this is now insisted on by the defendant as error, ³ and is discussed here.

We have said in the past that disclosure to the defence of the grand jury testimony of Commonwealth witnesses was largely discretionary with the trial judge, see Commonwealth v. Ries, 337 Mass. 565, 583, 150 N.E.2d 527 (1958); Commonwealth v. Cook, 351 Mass. 231, 232--233, 218 N.E.2d 393 (1966), cert. den. sub nom. Cook v. Massachusetts, 385 U.S. 981, 87 S.Ct. 529, 17 L.Ed.2d 443 (1966); Commonwealth v. Abbott Engr. Inc., 351 Mass. 568, 578--579, 222 N.E.2d 862 (1967), and that disclosure was in any case dependent on a showing of a 'particularized need' ⁴ that overcame the policies justifying grand jury secrecy. ⁵ Commonwealth v. Ladetto, 349 Mass. 237, 244--245, 207 N.E.2d 536 (1965); Commonwealth v. Doherty, 353 Mass. 197, 209--210, 229 N.E.2d 267 (1967); Commonwealth v. Gordon, 356 Mass. 598, 602--603, 254 N.E.2d 901 (1970). 'Particularized need' would be shown, no doubt, when it was admitted or somehow demonstrated that the grand jury testimony contradicted in a material way the testimony given by the same witness at trial, and could thus be used to impeach him or shake his credibility or refresh his memory. See Commonwealth v. Doherty, supra, 353 Mass. at 209--210, 229 N.E.2d 267; Commonwealth v. Carita, 356 Mass. 132, 140--142, 249 N.E.2d 5 (1969). Less certainly, the need could be established by pointing to contradictions or other weaknesses in the testimony of the witness at trial, which might possibly be aggravated (or resolved) by looking at what the witness had said previously to the grand jury. Cf. Commonwealth v. De Christoforo, Mass., 277 N.E.2d 100 (1971), and Spiegel, J., dissenting at --- - --- ^b. Even where the need was not proved, but only suggested, the judge might still choose to read the grand jury minutes himself, in camera, with a view to determining whether inconsistencies existed, and in suitable cases then authorizing disclosure to the defence. Commonwealth v. Carita, supra, 356 Mass. at 141--142, 249 N.E.2d 5; Commonwealth v. French, 357 Mass. 356, 377--378, 259 N.E.2d 195 (1970); Commonwealth v. De Christoforo, supra, at --- - ---, ^c 277 N.E.2d 100. See, generally, Smith, Criminal Practice and Procedure, §§ 621--626 (1970).

We shall be asserting in a moment that the system just described is faulty and should be revised, but first we need to say that it seems to us plain that the defendant here was not hurt by the denial of disclosure. Defence counsel had cross-examined Iversen at the probable cause hearing and also had access to a statement that Iversen gave to the police shortly after the robbery. Counsel engaged in a lengthy cross-examination of Iversen at trial aimed at attacking his identification of the defendant and mostly concerned with whether and how far the defendant's face mask had slipped, but this produced no significant inconsistencies; at most the witness committed some verbal slips induced by the tedious repetition of questions. On the appeal to our court Iversen's grand jury testimony was transcribed and sent forward to us and out of abundance of caution we have read it with consent of the parties. Compare COMMONWEALTH V. GALLINARO, MASS. (1971), 277 N.E.2D 527,^D cert. den. sub nom. Gallinaro v. Massachusetts, 406 U.S. 945, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972), with Commonwealth v. De Christoforo, supra, at --- - --- and n. 2, ^e 277 N.E.2d 100. It appears to us to furnish no further foothold for attacking the identification by Iversen.

Although the current procedure did not result in injustice to ...