Com. v. Wallace

• Decision Date: 17 February 1994
• Citation: 417 Mass. 126,627 N.E.2d 935
• Parties: COMMONWEALTH v. James A. WALLACE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 935

627 N.E.2d 935

417 Mass. 126

COMMONWEALTH v. James A. WALLACE.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Nov. 3, 1993.

Decided Feb. 17, 1994.

Donald A. Harwood, for defendant.

Jane Woodbury, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and GREANEY, JJ.

ABRAMS, Justice.

Convicted of murder in the first degree for the deliberately premeditated murder of Abel Harris, James A. Wallace appeals. See G.L. c. 265, § 1 (1992 ed.). ¹ On appeal, the defendant challenges: (1) the denial of his motion to suppress in-court and out-of-court identifications; (2) the prosecutor's closing argument; and (3) the jury instructions. The defendant also asks that we exercise our power under G.L. c. 278, § 33E (1992 ed.), and order a new trial or the entry of a verdict of a lesser degree of guilt. We conclude that there was no reversible error. We affirm the judgments. We also conclude that we should not exercise our power under G.L. c. 278, § 33E, in favor of the defendant.

1. The facts. We set forth the evidence in the light most favorable to the Commonwealth. Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471 (1985). At approximately 11:35 P.M. on the evening of July 31, 1987, floormen at Bunratty's Cafe, an Allston nightclub, ejected a man who had been obstructing a passageway and repeatedly bumping into band members as they attempted to set-up. Two hours later, at approximately 1:30 A.M. on the morning of August 1, 1987, the man who had been ejected re-entered the club, pulled out a handgun and shot two or three shots into the ceiling. At this point, Abel Harris, a bartender at the club, climbed over the bar and, while holding his hands up in a surrender fashion, walked toward the armed man. As Abel Harris approached him, the man pulled the trigger on the gun two or three times. The weapon clicked instead of firing. The man then placed the gun against Abel Harris's head and fired a fatal shot. The man then left the club. Abel Harris never regained consciousness and was pronounced dead on August 10, 1987.

On August 2, 1987, the police received information that identified the defendant as the assailant. On August 7, 1987, the defendant was arrested in Salina, Kansas. Witnesses identified the defendant as the person who had been ejected from the nightclub on the night of July 31, 1987, and as the man who shot Abel Harris. The witnesses identified the defendant through out-of-court photographic arrays and by in-court identifications. There was evidence of the defendant's consciousness of guilt (flight and material alteration of appearance). In addition, the defendant made inculpatory remarks and statements to friends, family and police. The theory of the defense was mistaken identification. Alternatively, the defense theorized that the defendant was so intoxicated that the jurors could not, on the evidence, return a verdict of either murder in the first or murder in the second degree.

2. Motion to suppress. On August 3, 1987, the Boston police presented an array of nine black and white photographs to five witnesses. ² All of the photographs displayed in the array were of white males with facial hair and medium or long hair. One of the photographs in the array was of the defendant. Two of the witnesses selected the defendant's photograph as being that of the assailant.

On October 16, 1987, the police presented the same array of black and white photographs and an array of color photographs to three other witnesses. ³ There was a photograph of the defendant in each array. In the black and white array, there was a photograph of the defendant with long hair and a beard. In the color array, there was a photograph of the defendant with shorter hair, a moustache and a couple of days' growth of beard. Each of the three witnesses viewed the photos alone and each witness viewed only one photo array at a time. Two of the three witnesses selected only the defendant's photo as being that of the assailant. The third witness selected both the defendant's and another man's photo.

Prior to trial, the defendant made a motion to suppress the in-court and out-of-court identification evidence, arguing that this evidence was the product of an unnecessarily suggestive identification procedure. After hearing, the judge denied this motion, determining that "the photographic identification procedures [employed] by the police ... were not unduly suggestive."

In challenging a photographic identification, "[t]he initial burden rests on the defendant to show, by a preponderance of the evidence, that, considering the totality of the circumstances attending the particular identification, the witness was subjected by the State to an identification so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law." Commonwealth v. Holland, 410 Mass. 248, 253, 571 N.E.2d 625 (1991), citing Commonwealth v. Botelho, 369 Mass. 860, 865-868, 343 N.E.2d 876 (1976), and Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). On appeal, the defendant does not contend that the procedures surrounding the August 3, 1987, photographic identification were impermissibly suggestive. The defendant directs his attention to the procedures surrounding the October 16, 1987, photographic identification. The defendant asserts that the procedures surrounding the October identification were unnecessarily suggestive because the defendant was the only person whose picture appeared in both the black and white and the color photographic arrays.

"[D]uplication of a defendant's photograph in one or more arrays [is] not ... sufficient by itself to compel the suppression of a resulting identification." Commonwealth v. Paszko, 391 Mass. 164, 169, 461 N.E.2d 222 (1984) (witness shown an array of seven color photographs, including one of the defendant with long straight hair and a moustache, and then shown second array of black and white photographs, including a photograph of the defendant with curly hair, a beard, and an earring in one ear; defendant was only suspect featured in both arrays). See also Commonwealth v. Kostka, 370 Mass. 516, 523-524, 350 N.E.2d 444 (1976) (witness shown a dozen photographs including two of defendant); Commonwealth v. Mobley, 369 Mass. 892, 896-897, 344 N.E.2d 181 (1976) (witness shown six photographs, including one of defendant, and then shown second array, including photograph of defendant committing unrelated robbery). See also Commonwealth v. LaPierre, 10 Mass.App.Ct. 641, 411 N.E.2d 1314 (1980) (defendant's photograph contained in three successive arrays); United States v. Eatherton, 519 F.2d 603 (1st Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975) (witness shown multiple arrays, each including defendant's photograph); United States v. Bowie, 515 F.2d 3 (7th Cir.1975) (witness selected defendant's picture from array of five black and white photographs and then selected defendant's picture from array of six color photographs; defendant was only suspect featured in both arrays). Rather, "the admissibility of identifications obtained in such circumstances is to be determined with reference to 'the totality of the circumstances' of the challenged episode of identification." Paszko, supra 391 Mass. at 170, 461 N.E.2d 222, quoting Botelho, supra 369 Mass. at 867, 343 N.E.2d 876, and Stovall, supra 388 U.S. at 302, 87 S.Ct. at 1972. Because the defendant's proof showed only the duplication of his photograph in two photographic arrays, the judge correctly concluded that the defendant "failed to prove by a preponderance of the evidence that [the] procedures employed by the police in the showing of the photographic array[ ] of ... October 16, 1987, were so unduly suggestive ... that he was denied due process of law."

3. The prosecutor's summation. The defendant asserts that the prosecutor's summation requires reversal of his convictions. The defendant contends that the prosecutor argued an incorrect principle of law to the jury, ⁴ shifted the burden of proof to the defendant, ⁵ and appealed to the emotions of the jury. ⁶

At the conclusion of the prosecutor's summation, defense counsel timely objected to the prosecutor's remark that "human beings intend the natural and normal consequences of their voluntary acts" and to the prosecutor's comment that April Jusseaume did not testify that she and the defendant were "coked up" as the defense counsel, in his opening statement, suggested she would. The defendant made a motion for a mistrial, which was denied, and then requested curative instructions with respect to these comments by the prosecutor. The judge gave curative instructions to the jury, to which the defendant did not object. On appeal, the defendant also argues that certain previously unobjected-to remarks by the prosecutor so appealed to the emotions of the jury as to require reversal.

Closing arguments must be viewed "in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231, 588 N.E.2d 643 (1992), citing Commonwealth v. Colon-Cruz, 408 Mass. 533, 553, 562 N.E.2d 797 (1990). ⁷ "[C]losing argument is identified as argument, the jury understands that, instructions from the judge inform the jury that closing argument is not evidence, and instructions may mitigate any prejudice in the final argument." Commonwealth v. Kozec, 399 Mass. 514, 517, 505 N.E.2d 519 (1987), citing Commonwealth v. Benjamin, 399 Mass. 220, 223-224, 503 N.E.2d 660 (1987). We turn first to the two remarks to which the defendant timely objected. See Commonwealth v. Rosa, 412 Mass. 147, 159 n. 12, 587 N.E.2d 767 (1992); Commonwealth v. Person, 400 Mass. 136, 139, 508 N.E.2d 88 (1987).

A. The alleged violation of Sandstrom v. Montana. The defendant asserts that the statement that "human beings...