Com. v. Swenson

• Citation: 331 N.E.2d 893,368 Mass. 268
• Parties: COMMONWEALTH v. William J. SWENSON.
• Decision Date: 30 June 1975
• Court: United States State Supreme Judicial Court of Massachusetts

Page 893

331 N.E.2d 893

368 Mass. 268

COMMONWEALTH

v. William J. SWENSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 3, 1975.

Decided June 30, 1975.

William A. Nelson, Boston, for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty., for the Commonwealth.

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

HENNESSEY, Justice.

Following a joint trial with a codefendant, one George Abbott, the defendant was convicted of the crime of armed robbery and sentenced to a term of not less than twelve nor more than fifteen years at the Massachusetts Correctional Institution at Walpole. The guilty verdict was rendered on June 11, 1970. The case had been tried under the provisions of G.L. c. 278, §§ 33A--33G, and an appeal was filed on June 19, 1970. However, no assignments of error were filed and on May 24, 1971, a Superior Court judge dismissed the appeal as not having been perfected. ¹

The defendant filed a petition for writ of error before a single justice of this court and on January 22, 1974, judgment was entered by order of the single justice reinstating the defendant's appellate rights under §§ 33A-- 33G. The defendant was directed to file his assignment of errors; he did so, setting forth nine assignments. The appeal was filed in the Appeals Court and we on our own motion ordered that the case be transferred here. In oral argument the defendant waived six of his assignments of error. He argues before us (1) error in that the trial judge permitted a police officer to testify as to an extrajudicial photographic identification by a witness where that witness on the stand made no in-court identification and refused to confirm the prior identification; (2) error in that the trial judge refused to order disclosure of the identity of a police informer who had witnessed the robbery and had provided the defendant's name to the police; and (3) error in that the three and one-half year delay between the claiming of, and docketing of, this appeal caused the defendant substantial prejudice to his appellate rights. We find no error.

Evidence was offered that at about 10 or 10:30 P.M. on June 4, 1968, a man armed with a rifle entered Captain Bill's Cafe, Inc., on Dudley Street, in Roxbury, and announced that the place was going to be robbed. Anthony M. Bevere, the bartender on duty, testified that he was at the time standing behind the bar. While the man with the rifle remained at the door a customer, Warren Clark, walked in. At first Clark was not aware that a robbery was in progress. When he realized that fact, Clark attempted to grab the rifle but the robber struck him with it. His attention apparently having been diverted by this scuffle, Bevere, at this point, became aware of a second man standing behind him. That man placed a hand gun against Bevere's side, ordered Bevere to open the cash register and to empty the cash into a cigar box. The gunman stood behind him and, when Bevere finished collecting the money, the gunman ordered him to the far end of the bar. The man with the hand gun who had been next to Bevere left first; the man with the rifle left a minute later. The police arrived about a half-hour later. Sometime later that night the police returned, bringing with them ten or eleven photographs, among which was a photograph of the defendant Swenson.

1. The extrajudicial identification of a photograph of the defendant by Bevere presents one of the issues in this case. At trial Bevere was unable or unwilling to make an in-court identification of the defendant as the man who had held the gun, although Bevere did identify the codefendant as the man with the rifle. Bevere was asked, 'Did you identify one of those photographs as the man that held you up?' He first answered, 'No, I indicated there was probably--.' Over objection that the question called for a direct answer, Bevere said, 'No.' He was then questioned as to an identification of the codefendant at the preliminary hearing, which he affirmed. A second question as to the photographic identification of the defendant was then repeated, 'Just one more question, Mr. Bevere. You want to leave for the record and to this jury you identified no photograph on June 4 or June 5, 1968?' Bevere answered, 'I did not give a positive identification of any photograph.'

On redirect examination Bevere was shown a photograph, presumably of Swenson, and was asked whether he had been shown that photograph on June 4, 1968. Bevere answered, 'Yes, I was.' He was then asked whether he did identify that photograph at the time. In the colloquy which followed, defense counsel objected, apparently on the ground that any statement in response would be hearsay. The objection was overruled, subject to exception, and the witness testified, 'I thought it resembled the man with the rifle.' ² This statement following the prior denials is the closest Bevere came to admitting that he made any extrajudicial identification of the defendant Swenson.

The next witness was Stephen Flaherty, a police officer. Flaherty testified that on the night of the robbery he had returned with photographs to show Bevere, among others. Flaherty was asked whether he had shown the previous witness Bevere the photographs; he answered yes. The assistant district attorney then stated, 'Your Honor, I offer this as (a) prior inconsistent statement on behalf of the lest witness.' Following a bench conference, not recorded, Flaherty testified that when he had shown Bevere the photographs, Bevere had shuffled through them and had picked out Swenson's picture. Flaherty further testified that Bevere had said, 'That looks like the guy that held the handgun.'

The defendant argues that it was error to allow Officer Flaherty's testimony as to Revere's alleged identification of the defendant's photograph. We disagree.

There are at least three ways in which proof of an extrajudicial identification may be offered in evidence: (1) for corroborative purposes; (2) for impeachment purposes where that prior identification may have been disclaimed or (3) as substantive evidence of an identification, having probative value. The Commonwealth seeks to justify the admission of the testimony at issue here, not for substantive purposes, but for corroborative or impeachment purposes. ³

We do not agree with the Commonwealth's contention that Flaherty's testimony was admissible as corroborative of Bevere's prior photographic identification. It is true, as the defendant concedes, that it is a well established principle in this Commonwealth that the testimony of witnesses to an extrajudicial identification be admissible to corroborate an incourt identification or to corroborate the circumstances of the making of an extrajudicial identification. See, e.g., Commonwealth v. Locke, 335 Mass. 106, 138 N.E.2d 359 (1956); Commonwealth v. Redmond, 357 Mass. 333, 341, 258 N.E.2d 287 (1970); COMMONWEALTH V. LEASTER, --- MASS. ---, 287 N.E.2D 122 (1972)^A; COMMONWEALTH V. DENAULT, --- MASS. ---, 289 N.E.2D 863 (1972)^B. However, while the Commonwealth now seeks to support admission of Officer Flaherty's testimony on the ground that it is corroborative, it is clear that the testimony was expressly not offered for this purpose at trial. Indeed, given what may be characterized at best as an equivocal identification and at worst as a disaffirmance of any identification by Bevere, and given the absence of an incourt identification, it is unlikely that the police officer's testimony could properly have been offered for corroborative purposes.

As the record clearly indicates, the testimony of Officer Flaherty was offered for impeachment purposes, and properly so, we believe. Cf. COMMONWEALTH V. THOMPSON, --- MASS. ---, 286 N.E.2D 333 (1972)^C. Bevere was an important witness to the Commonwealth; he stood closest to the gunman for most of the time the two robbers were in the bar and moved in response to orders directed at him by that gunman. Bevere's testimony, taken as a whole, could be interpreted to mean that he had not at any time positively identified the defendant as the gunman. The Commonwealth was entitled to impeach this witness's testimony, tending as it did to exculpate Swenson. ⁴

Counsel for the defendant did not request limiting instructions to the jury either at the point that the police officer's testimony was offered or in the judge's final instructions to the jury. The assistant district attorney clearly and in the presence of the jury stated that the testimony was offered as a prior inconsistent statement. Had the defendant sought further elaboration of this evidentiary principle for the benefit of the jury, he should have requested instructions. The duty was with defense counsel. ⁵ Commonwealth v. Costa, 354 Mass. 757, 236 N.E.2d 94 (1968); Commonwealth v. Foley, 358 Mass. 233, 263 N.E.2d 451 (1970); COMMONWEALTH V. CONCEPECION, --- MASS. ---, 290 N.E.2D 514 (1972)^D.

2. In his second assignment of error, the defendant argues that the trial judge improperly refused to order disclosure of the identity of a police informer. It was brought out in evidence during cross-examination of Officer Flaherty by the defendant that the police had originally included the defendant's photograph among those to be shown on the night of the robbery to the witnesses still at the bar because of information, in fact the defendant's name, given to the police by an informer who apparently had been present in the bar during the robbery.

The defendant, citing Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and particularly relying on the case of COMMONWEALTH V. ENNIS, --- MASS.APP. ---, 301 N.E.2D 589 (1973)^E, argues that the Commonwealth was required to divulge the identity of its informer. There was no error.

This assignment of error fails because the defendant saved no exception, as to this issue, at trial. Indeed, the colloquy between counsel and court was casual and not particularly...