Com. v. Sullivan

• Decision Date: 02 July 1968
• Citation: 239 N.E.2d 5,354 Mass. 598
• Parties: COMMONWEALTH v. William G. SULLIVAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 5

239 N.E.2d 5

354 Mass. 598

COMMONWEALTH v. William G. SULLIVAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 5, 1968.

Decided July 2, 1968.

David Berman, Medford (John F. Zamparelli, Medford, with him) for defendant Sullivan.

Robert A. Stanziani, Boston, for defendant Reissfelder.

Lawrence L. Cameron, Asst. Dist. Atty., for the Commonwealth.

Before WILINS, C.J., and WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.

WHITTEMORE, Justice.

The defendants have appeals under G.L. c. 278, §§ 33A--33G, from judgments of guilty of murder in the first degree. The jury having recommended that the death sentence be not imposed, the defendants were sentenced to life imprisonment.

On October 14, 1966, about 7:15 A.M. two men committed a payroll robbery at the premises of the Railway Express Agency at the South Station in Boston. As the robbers fled one of them (identified at the trial as Sullivan) fired a shot which hit an employee of the Agency, Michael Shaw, in the head. Only one shot was fired. Shaw died from the wound on December 2, 1966. The defendant Reissfelder was arrested on the day of the robbery, and with him was found a revolver which John Coleman, another Agency employee, at the trial identified as the gun carried by Reissfelder. The defendant Sullivan was arrested at the Cambridge court house on November 14, 1966, following Coleman's identification. Each defendant was identified by eyewitnesses. A remark by Sullivan to a companion overheard in the Cambridge court house tended to incriminate him.

REISSFELDER'S ASSIGNMENTS OF ERROR.

1. Failure to suppress as evidence a twenty-two calibre pistol.

On the strength of a default warrant for the arrest of Reissfelder in a 'bad check' case, five or six police officers about 3:45 P.M. on October 14, 1966, entered the apartment of Martha Sternberg where Reissfelder, a friend of her son, had spent the previous night. They saw Reissfelder hiding behind a washing machine in a small room off the kitchen. An officer said, '(W)e have a warrant for your arrest' and took him by the arm. He stood up and the officers saw, on the laundry bag on which he had been crouching, a '.22 long calibre Colt single action revolver' in a holster. An officer testified that they did not go to the apartment looking specifically for a gun but 'looking for a gun * * * was part of it.' They knew there had been a holdup prior to 8 A.M. on that day. The officers did not then search the premises. They did search the defendant and found seven rounds of twenty-two calibre cartridges in his trousers pocket.

It may be inferred that the officers took advantage of the opportunity to make an arrest under the outstanding warrant because of their belief or suspicion that Reissfelder had been one of the robbers. In the circumstances we think that this did not require the suppression of the gun as evidence.

There is no suggestion that the warrant had been procured as a pretext, or after the robbery, or that there had been unreasonable delay in its service, or in any other respect that it was not appropriate and lawful that it be then served. Neither the wish of the police to have the defendant under arrest at that time for another reason, nor their belief that when they arrested him they might find a weapon used in the crime of that morning, made the arrest a mere sham or a pretext. Compare Taglavore v. United States, 291 F.2d 262 (9th Cir.). In that case, in order to search the person of a narcotics suspect, the officer made use of a warrant to arrest the suspect for two minor traffic violations observed by another officer the night before, as to which that officer had been too 'busy doing other police work' to take prior action. The court, deeming the warrant only an excuse for the search, ruled the search and the arrest illegal. We assume that any search not reasonably related to or serving the purpose of the arrest under the default warrant would have been invalid. There was, in our view, no search. COMMONWEALTH V. MURPHY, MASS., 233 N.E.2D 5.^A The gun was in plain sight in the defendant's possession. See G.L. c. 269, § 10. Commonwealth v. Ballou, 350 Mass. 751, 756, 217 N.E.2d 187. If, however, observing and taking the gun were to be thought of as involving a search, it was action directly related to the arrest under the warrant. See Terry v. State of Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Carlo v. United States, 286 F.2d 841, 845--848 (2d Cir.), cert. den. 366 U.S. 944, 81 S.Ct. 1672, 6 L.Ed.2d 855.

The arrest was not illegal and there was no basis for suppressing the gun. Compare United States v. Harris, 321 F.2d 739 (6th Cir.). (No warrant; the one hour's search for narcotics was held the primary purpose of the arrest; search held invalid even though there was probable cause to suspect narcotics violations.)

2. The relevance of the gun and bullets found with Reissfelder.

There was testimony that this was the gun that was pointed at the witness Coleman. The most that the witness could be taken as saying was that it looked like the gun. The evidence was that it had not been fired. It was relevant that the defendant when arrested had with him a gun of the unusual type used in the robbery and also bullets to use in that gun. The gun was an important part of the identification of the defendant as one of the robbers. The introduction of the spent bullet, fired by the ballistician from this gun (sustaining his view that the gun had not been fired in the robbery), did not prejudice the defendant.

3. Testimony of witnesses identifying Reissfelder.

Coleman testified that on October 14, 1966, shortly after 7:15 A.M. he was carrying a bag of money along the second floor corridor of the Agency's offices with Michael Shaw and John Esposito. A man (later identified as Reissfelder), came out of room No. 4 with a gun, grabbed the bag of money, pointed a gun at Coleman's stomach saying, 'Give me the money.' At first the three employees thought it was a joke. Shaw and Esposito kept walking down the corridor in a southerly direction. Coleman struggled with the man but when he heard 'a click or two' from the gun, he let the bag go. The man then called to a companion in the men's room (later identified as Sullivan) who came out with a gun in his hand and said, 'Get in the men's room.' The hall was very dark. There was a light on in the men's room. There was a skylight. The jury took a view. The witness was able to see the face of the man who had come out of room No. 4. He was 'face to face' with him. The man had black hair, or dark brown (seen at the sides of his head). He had on a 'skully cap, like a longshoreman's cap or a golfer's cap,' a 'peaked cap,' a dark blue jacket and sunglasses. He had olive skin and a five o'clock shadow. The witness had had the man under observation for up to thirty-five seconds. In the court room the witness pointed to the defendant Reissfelder as that man.

On October 15, at the court house of the Dorchester court (a district court in Boston), Coleman had 'positively identified' Reissfelder as the man with whom he had struggled. The man was in a cell with several other men. The witness then went to the Roxbury court (another Boston district court), '(a)s far as * * * (he knew),' to look at Reissfelder, but he was not asked to do so. He then went to headquarters to identify Reissfelder and was there two hours before he did so. He 'was not asked to identify anyone there' but he did see Reissfelder there with a detective at a desk.

After he identified Reissfelder, Coleman was shown many photographs in the course of the police search for another man. He observed a man at police headquarters through a mirror that hid him from the observed person. The man walked around and talked. After about five minutes the witness said, 'that wasn't the (other) man.'

The defendant moved to strike Coleman's testimony after the testimony of prior identification at the Dorchester court had been elicited. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, was decided June 12, 1967. It does not apply to identification made prior to that date. Stovall v. Denno, Warden, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. As to the contention under the Fourteenth Amendment, we note first that the defendant does not contend that he was illegally detained at any of the places where he was observed. We think also that there is no basis for concluding that 'the confrontation * * * was * * * unnecessarily suggestive and conducive to irreparable mistaken identification' (idem, 301--302, 87 S.Ct. 1972). COMMONWEALTH V. BLACKBURN, MASS., 237 N.E.2D 35,^B COMMONWEALTH V. BUMPUS, MASS., 238 N.E.2D 343.^C The witness had been face to face with the man the day before. In looking at other pictures, searching for the other robber, he did not respond to the suggestion of the pictures or of police custody. The identification was prompt and certain. There is nothing in the defendant's attempt to suggest that only after three looks at different places was the identification made. It appears plain that the word 'identify' (used to some extent in leading questions on cross-examination) has been used not only in the sense of recognition by the witness of his assailant, but also to state what he was to do at other places, to inform others who needed to know that the man was, in the witness's view, the assailant.

Alexander LaRusso, an Agency foreman, was at a counter on the first floor of the building on October 14, 1966, about 7:05 A.M. He heard a shot upstairs, and footsteps running down the stairs. He saw two men dressed in working clothes come down to a partition, turn, come down four steps and run past the receiving counter. He saw both of them for about five seconds and got a look at their faces. He identified them in the court room as Reissfelder and Sullivan. Reissfelder said to him, 'Stay still, don't move.' They both had on dark glasses and dark jackets;...