Com. v. Storey

• Citation: 378 Mass. 312,391 N.E.2d 898
• Parties: COMMONWEALTH v. Frederick STOREY, Jr.
• Decision Date: 25 June 1979
• Court: United States State Supreme Judicial Court of Massachusetts

Page 898

391 N.E.2d 898

378 Mass. 312

COMMONWEALTH v. Frederick STOREY, Jr.

Supreme Judicial Court of Massachusetts, Hampden.

Argued April 2, 1979.

Decided June 25, 1979.

Stephen W. Silverman, Springfield (Greg T. Schubert, Springfield, with him), for defendant.

William T. Walsh, Jr., Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and LIACOS, JJ.

HENNESSEY, Chief Justice.

On the afternoon of September 15, 1976, Brenda Wilson was fatally shot in her home at 186 Nursery Street in Springfield. Indicted for her death, the defendant, Frederick Storey, Jr., was convicted of murder in the first degree by a Superior Court jury. The defendant now appeals, pursuant to G.L. c. 278, §§ 33A-33G, claiming that errors were committed both in the police investigation of the crime and during the course of his trial. We find no merit in any of the defendant's contentions. Accordingly, we affirm his conviction.

We summarize the evidence as it was presented at trial. About 5:40 P.M. on September 15, 1976, the victim, Brenda Wilson, was found dead, lying on the floor near the side of her bed, by Sandra Crump, a close friend who had come to visit. The police were called to the scene of the crime as was Dr. William Mosig, the medical examiner for the Second Hampden District. Dr. Mosig's examination and later autopsy revealed that Wilson's death occurred somewhere between noon and 2 P.M. on the fifteenth of September. He observed three gunshot wounds in the victim's head and two in her chest, and, on the basis of the wounds, Dr. Mosig concluded that one of the fatal bullets had entered the victim's body while she was "laying (Sic ) horizontally, probably on her back."

The prosecution's case against the defendant consisted exclusively of circumstantial evidence. Willie J. Thomas, a tenant relations advisor for the Springfield Housing Authority, identified the defendant, both out of court and at trial, as having been seated at a table in the victim's kitchen about noon on the day of the crime. According to his testimony, he, Thomas, had entered Wilson's apartment shortly after inspecting a vacant apartment located below the victim's, in order to use the kitchen telephone to report to his office. Standing approximately three and one-half to four feet from a man seated at the table, Thomas's attention was drawn to the man by his intensely distressed demeanor. ¹ By his own estimate, Thomas was in the apartment approximately four to five minutes.

Following the discovery of the victim's body, Thomas gave a description to the police of the man seen in the apartment. ² On the same day, later in the evening, Thomas was shown a number of photographs of individuals roughly matching his description of the suspect. A photograph of a certain man was selected, but, on viewing this individual face to face, Thomas determined that he was not the man whom he had seen in the victim's kitchen. ³ On the sixteenth of September and again on the seventeenth, Thomas viewed several additional trays of photographs and subsequently identified Storey from an array of nine photographs as the man in the apartment. In consequence, two police officers were dispatched to Storey's place of employment, the Smith & Wesson plant outside Springfield, in order to ask the defendant to come to police headquarters. Storey acceded to the officers' request, and at the station house Thomas viewed the defendant standing by himself, opposite a glass door of an adjoining room, and positively identified him as the man he had seen in the apartment on the day of the crime. This identification was repeated minutes later in the defendant's presence and again in court. Corroborating Thomas's identification of Storey at trial was the testimony of another witness, Russell Flack, who, while unable to identify the defendant positively, stated that between 12:30 P.M. and 1 P.M. on the day of the crime he heard gunshots and observed a person fitting the defendant's description leaving the area of the victim's building.

Storey was formally arrested after Thomas identified him at police headquarters. Captain James F. Williams of the Springfield police promptly read the defendant his Miranda rights and then questioned him as to whether he had fired a gun within the past two weeks. Storey admitted, Williams testified at trial, to having fired a gun in the basement of his home. Storey also admitted, Williams stated, to having had a sexual affair with the victim.

As a result of these admissions, a search warrant was obtained for Storey's home, where a .38 caliber Smith & Wesson revolver was found between the mattress and box spring of his bed, and nine unfired .38 caliber cartridges, with nickel plated casings and round-nosed, copper-jacketed projectiles, were discovered in an inside pocket of a suit belonging to the defendant. ⁴ Over the defendant's objection, the gun and bullets were introduced in evidence at trial. A prosecution ballistics expert, Corporal George Windisch, ⁵ provided testimony that the defendant's gun, which was of the same caliber as the murder weapon, had been fired at least two times from two charge holes. Although Windisch was unable to identify the gun as the murder weapon (due to extensive damage to the spent projectiles found at the murder scene and recovered from the victim's body), the witness was able to match the type of bullets found in the defendant's coat to those discovered at the murder scene. Most significantly, Windisch stated that he had never previously encountered such bullets bullets having a projectile with a round copper nose and a lead base during his five and one-half years' experience and through thousands of examinations similar to those conducted here.

Two representatives of the defendant's employer, the Smith & Wesson company, were also called as witnesses by the prosecution. Robert Allen, wage and salary administrator of the plant, testified that Storey worked the 3 P.M. to 11 P.M. shift and was assigned the task of putting stocks on revolvers. James Isom, serial administrator for all firearms manufactured by Smith & Wesson, stated that the company did not possess a record of a final disposition of the revolver found in the defendant's home, which indicated, he explained, that the gun had not been sold by the company. ⁶ In defense, Storey called a single witness, Carl Majesky, a private investigator and formerly a supervisor of the Firearms Identification Section of the State police, who offered the opinion that the bullets found at the crime scene and those found in the defendant's coat were not unusual.

On appeal, Storey advances five arguments which he suggests warrant setting aside the jury verdict finding him guilty of murder in the first degree: (1) that Thomas's identification of the defendant was unnecessarily suggestive and so unreliable that it should have been suppressed; (2) that statements made by the defendant to the police should have been suppressed because they resulted from an arrest without probable cause; (3) that the trial judge erred in admitting in evidence the defendant's gun without a curative instruction indicating that it had not been proved to be the murder weapon; (4) that the prosecutor addressed improper remarks to the jury in his closing argument; and (5) that the Commonwealth failed to prove premeditation beyond a reasonable doubt. Because we are unpersuaded by all the defendant's arguments, we conclude that the conviction should not be disturbed.

1. Thomas's identification of Storey. We turn initially to the defendant's contention that his identification by Thomas should have been suppressed because it was unnecessarily suggestive. The gravamen of the defendant's argument is that the use of a one-on-one showup by the police is improper where no exigent circumstances exist to excuse or justify the failure to employ an available lineup facility. Since the police had ample time and adequate physical facilities to conduct a lineup to determine if Thomas could identify the defendant, the defendant contends that the police erred in utilizing a less formal showup procedure.

We disagree. As has been frequently suggested by this court and others, one-on-one confrontations, whether photographic or in person, while often disfavored, are not subject to a rule of per se exclusion. Commonwealth v. Venios, --- Mass. ---, --- - --- ^A, 389 N.E.2d 395 (1979). Commonwealth v. Jackson, --- Mass. ---, --- ^B, 386 N.E.2d 15 (1979). Commonwealth v. Nolin, 373 Mass. 45, --- ^C, 364 N.E.2d 1224 (1977). Nassar v. Vinzant, 519 F.2d 798, 801 (1st Cir. 1975). State v. Middleton, 170 Conn. 601, 606, 368 A.2d 66 (1976). Although such confrontations pose particularly serious dangers or suggestiveness, we would consider it ill advised to exclude as constitutionally unacceptable all evidence that has been derived from single person confrontations simply because these identification procedures might have taken place just as easily in the form of lineups. See Commonwealth v. Chase, 372 Mass. 736, --- ^D, 363 N.E.2d 1105 (1977); Commonwealth v. Bumpus, 354 Mass. 494, 238 N.E.2d 343 (1968). But see Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968) (Douglas, J., dissenting). Rather, the test to be applied in measuring the constitutional sufficiency of single person confrontations under the due process clause is simply whether the confrontation is unnecessarily suggestive of the defendant. Commonwealth v. Venios, supra, --- Mass. at --- - --- ^E, 389 N.E.2d 395. Commonwealth v. Dougan, --- Mass. ---, --- ^F, 386 N.E.2d 1 (1979). Commonwealth v. Marini, --- Mass. ---, --- ^G, 378 N.E.2d 51 (1978). Commonwealth v. Botelho, 369 Mass. 860, 867, 343 N.E.2d 876 (1976). See Moore v. Illinois, 434 U.S. 220, 227, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 301-302, 87...