Com. v. Thompson

• Citation: 427 Mass. 729,696 N.E.2d 105
• Parties: COMMONWEALTH v. Charles Y. THOMPSON, Jr.
• Decision Date: 06 July 1998
• Court: United States State Supreme Judicial Court of Massachusetts

Page 105

696 N.E.2d 105

427 Mass. 729

COMMONWEALTH v. Charles Y. THOMPSON, Jr.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued April 6, 1998.

Decided July 6, 1998.

Brownlow M. Speer, Committee for Public Counsel Services, Boston, for defendant.

Brian A. Wilson, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

FRIED, Justice.

The defendant appeals from convictions of unarmed robbery and of being a habitual criminal. He claims that his unarmed robbery conviction ought to be reversed because the evidence against him was the tainted fruit of an unlawful stop by the police, and the robbery victims' identifications of him violated his due process rights. The defendant also challenges the habitual criminal conviction on the grounds that the judge abused her discretion under G.L. c. 278, § 11A, in refusing to empanel a new jury to try the habitual criminal indictment, and that his ensuing jury waiver was ineffective under G.L. c. 263, § 6, because it was made after the empanelment of the jury. Finally, the defendant argues that his motion to dismiss the indictments should have been allowed because the Commonwealth presented to the grand jury irrelevant and inflammatory evidence regarding his other crimes. We transferred the case to this court on our own motion and now affirm.

I

At approximately 1 A.M., on October 9, 1994, Dr. Eugene Vaninov was returning home in Brookline with his wife, Ellen, and thirteen year old daughter, Alla. Doctor Vaninov intended to drop off his wife in front of their apartment building, park their vehicle, and walk home with his daughter. As he dropped off his wife, Dr. Vaninov saw a man get out of the passenger side door of a gray motor vehicle and quickly follow Mrs. Vaninov into the apartment building.

Mrs. Vaninov entered the vestibule of the building. The lock on the interior door had been broken for some time and the door could be opened simply by pushing it. She noticed that a man was following her up the stairs to her apartment. She hurried into her apartment and managed to "shut the door right in front of [the man's] face."

Dr. Vaninov instructed Alla to remain in the vehicle and approached the building. He entered the building approximately forty-five seconds after his wife, and noticed the man who had followed his wife standing in the vestibule. After he went through the interior door into the building, Dr. Vaninov heard that door open behind him and, as he turned around, saw the man approach him quickly. The man immediately struck Dr. Vaninov several times, breaking his glasses and knocking him to the floor. He snatched Dr. Vaninov's wallet, seized his watch, and fled.

After checking his daughter and parking his vehicle, Dr. Vaninov returned to his apartment. Mrs. Vaninov telephoned the police who arrived soon thereafter. Both Dr. and Mrs. Vaninov gave a description of the robber. Their daughter described the motor vehicle the robber entered after the robbery as an older, gray, two-door American model and the person waiting for the robber in the car as a short black male.

At approximately 1:15 A.M., two Boston municipal housing police officers, Thomas Fay and Timothy Brady, were on patrol in the area of the Mission Hill housing development near Ruggles Street. They noticed a 1985 gray Buick Regal automobile double-parked in a parking area in front of a townhouse at 240-260 Ruggles Street. There were two persons inside, and the engine and rear lights were on. The Buick was parked at a right angle to other motor vehicles that were parked facing in to 240-260 Ruggles Street. Both officers were aware that this townhouse was the subject of an ongoing narcotics investigation. They had also previously arrested several individuals in the same area for narcotics offenses.

Officer Fay positioned his cruiser behind the Buick, thus blocking its exit from the parking lot, and approached the driver's side to make a "threshold inquiry." He noticed damage to the left side of the steering column and suspected the motor vehicle to be stolen. Officer Fay gestured to Officer Brady to request a police dispatcher to run a stolen motor vehicle check. When asked, the driver, later identified as Joseph Williams, stated that he was not the owner of the motor vehicle. While waiting for a response from the dispatcher, Officer Brady saw the passenger of the Buick, later identified as the defendant, make several attempts to open his door. On receiving confirmation that the Buick had been stolen in Boston on the previous day, Officer Brady ordered the defendant to leave the vehicle. The defendant jumped out and began to run. Officer Brady promptly pursued him on foot. After placing Williams in custody and putting him into the back seat of the cruiser, Officer Fay drove the cruiser down Albert Street to assist Officer Brady. The defendant was apprehended and also placed into the rear of the cruiser. The two officers then drove back to Ruggles Street, where the Buick had been left parked with its engine running.

Officer Fay observed two handbags on the rear seat of the Buick, and the contents of a handbag and a wallet on the floor of the front passenger seat. These items were later identified as belonging to several different persons. Officer Fay asked his dispatcher whether there were any reports of handbag snatches in the area. The dispatcher informed him that "Brookline, as well as the [Boston] District 2 Unit, were interested in the motor vehicle and occupants."

Shortly thereafter, two Brookline police cruisers arrived at Ruggles Street with the victims of the earlier robbery. Dr. Vaninov was in the back seat of one cruiser driven by Officer Jeffrey Hutnick. When the defendant was brought to Officer Hutnick's cruiser, Dr. Vaninov identified him as the robber. When Williams was brought over, Dr. Vaninov was unable to identify him. Mrs. Vaninov was in the back seat of the other cruiser driven by Sergeant Michael McCarthy. When the defendant was brought to Sergeant McCarthy's cruiser, Mrs. Vaninov identified him as the robber. She too was unable to identify Williams.

During these identifications, both the defendant and Williams were handcuffed. Flashlights were used to illuminate their faces. The area was also well lit by street lights. The defendant and Williams were placed between six and fifteen feet from the cruisers where the victims were seated.

Dr. Vaninov's wallet was retrieved from the front passenger floor of the stolen Buick. The defendant was wearing Dr. Vaninov's watch. He also had a $5 and a $10 bill in his pants pocket folded separately from his other cash. Dr. Vaninov had earlier reported that a $5 and a $10 bill were the only cash in his wallet. Dr. Vaninov's credit cards were also found in Williams's pockets.

Prior to trial, Williams moved to suppress all evidence as fruit of an illegal seizure violative of the Fourth and Fourteenth Amendments to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. The defendant separately moved to suppress the Vaninovs' identifications of him as having arisen from an identification procedure so unnecessarily suggestive as to violate his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. A combined hearing on both motions was held. The motion judge made written findings of fact and rulings of law on the motions, and denied them. She ruled that the stop by Officers Fay and Brady was justified by a reasonable suspicion based on specific and articulable facts. The judge further ruled that the identification procedure was not unnecessarily suggestive and was "permissible because it was done efficiently and expeditiously as part of the on-going investigation."

On January 30, 1996, the jury found the defendant guilty on unarmed robbery and assault and battery charges. The Commonwealth then moved for a trial on the habitual offender indictment. The defendant requested that the trial judge empanel a new jury to try this charge. When the judge denied the motion, the defendant waived his right to a trial by jury. The judge found the defendant guilty, and pursuant to G.L. c. 279, § 25, and c. 265, § 19, sentenced him to the maximum term of life imprisonment on the robbery conviction. She placed the assault and battery conviction on file with the defendant's consent.

The defendant appealed, and we transferred the case to this court on our own motion.

II

A

The defendant argues that all the evidence against him, including the Vaninovs' out-of-court and in-court identifications of him as the robber, was tainted fruit of an unlawful stop under the Fourth and Fourteenth Amendments and art. 14. His argument fails because the officers' initial stop was justified by a reasonable suspicion of criminal activity.

A stop occurred when Officers Fay and Brady positioned their cruiser behind the Buick, blocking its exit. "[A] person has been 'seized' ... if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), quoted in Commonwealth v. Borges, 395 Mass. 788, 791, 482 N.E.2d 314 (1985). More particularly, an officer initiates a threshold inquiry that must be reasonable within the meaning of the Fourth Amendment and art. 14 when he parks a police cruiser with the intention and effect of blocking a suspect's motor vehicle and preventing it from leaving. See Commonwealth v. Helme, 399 Mass. 298, 300, 503 N.E.2d 1287 (1987); Commonwealth v. King, 389 Mass. 233, 241, 449 N.E.2d 1217 (1983).

We must therefore determine whether the stop was reasonable given the "specific and articulable facts" found by the judge. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d...