Com. v. Wilson

• Citation: 360 Mass. 557,276 N.E.2d 283
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 07 December 1971
• Parties: COMMONWEALTH v. Paul B. WILSON.

Page 283

276 N.E.2d 283

360 Mass. 557

COMMONWEALTH v. Paul B. WILSON.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 1, 1971.

Decided Dec. 7, 1971.

Reuben Goodman, Boston, for defendant.

Terence M. Troyer, Asst. Dist. Atty., for the Commonwealth.

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

BRAUCHER, Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, from convictions of unarmed robbery on each of two indictments charging armed robbery. He assigns as error (1) denial of his motion to suppress, as the fruits of an unlawful search, a toy gun and his statements to the police, (2) in-court identifications tainted by impermissibly suggestive procedures, (3) admission in evidence of incriminating statements made by him after he had requested counsel, and (4) denial of his request that the stenographer read back prior inconsistent testimony of a police officer.

A cashier at the Village Food store on Massachusetts Avenue in Lexington testified to a robbery with a gun about 9:45 P.M. on Tuesday, August 18, 1970, and identified the defendant as the robber. A part time employee at the Cumberland Farms store, about a block from the Village Food store, testified to a robbery with a plastic water pistol about 6:30 P.M. on Saturday, August 22, 1970, and identified the defendant as the robber. The defendant testified that he was elsewhere on both occasions, and other witnesses partially corroborated his testimony.

1. The arrest. Three police officers testified at the hearing on the motion to suppress, and the judge made extensive findings of fact. We summarize those relating to the arrest of the defendant. After the Tuesday robbery a hat and a water pistol resembling a hand gun were found near the scene. Shortly before 10:30 P.M. on Sunday, August 23, 1970, an officer in a cruiser car received information by radio that a person in a light-colored station wagon was acting suspiciously and appearently changing clothing. About 10:30 P.M. the officer saw a car matching the description near the scene of the robberies. He stopped the car and checked the license and registration of the operator, who was the defendant.

A second officer arrived in response to a radio call and secured permission to sit in the defendant's car and talk to him. Through the open door on the driver's side the first officer observed a second water pistol on the floor of the station wagon between the defendant's legs. The officer asked the defendant to step out of the car and picked up the gun. The defendant first said he didn't know how the gun happened to be in his automobile, and then said it probably belonged to a nephew of his. The defendant then agreed to go to the police station for further talk about the gun.

At that time the defendant was not under arrest. He and the two officers arrived at the police station about 11:15 P.M. or 11:30 P.M. The second officer took the defendant to his office, handed him a 'Miranda Warning Card,' and asked him whether he understood it. The defendant said he did, and his implication in the two robberies was discussed. The defendant was asked whether he wanted to speak to an attorney, and was given an opportunity to use the telephone. It is not clear whether he did so. He was booked about 12:15 A.M. on suspicion of armed robbery and placed in a cell.

The defendant argues that the gun and the oral and written statements made at the police station were the fruit of the illegal interception of the defendant's automobile without probable cause and that they should have been suppressed. But G.L. c. 41, § 98, as amended through St.1967, c. 368, § 2, constitutionally permits a brief threshold inquiry where suspicious conduct gives the officer 'reason to suspect' the questioned person of 'unlawful design,' that is, that the person has committed, is committing, or is about to commit a crime. Commonwealth v. Lehan, 347 Mass. 197 204, 196 N.E.2d 840; Commonwealth v. Lawton, 348 Mass. 129, 132, 202 N.E.2d 824; Commonwealth v. Roy, 349 Mass. 224, 230, 207 N.E.2d 284; Alegata v. Commonwealth, 353 Mass. 287, 293, 231 N.E.2d 201; Commonwealth v. Matthews, 355 Mass. 378, 380, 244 N.E.2d 908; Commonwealth v. Quish, 356 Mass. 718, 249 N.E.2d 597; Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889. See concurring opinions of White, J., in Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Sibron v. New York, 392 U.S. 40, 69, 88 S.Ct. 188., 20 L.Ed.2d 917; LaFave, 'Stree Encounters' and the Constitution: Terry, Sibron, Peters, and Beyond, 67 MichL.Rev. 40, 62--84; Search and Seizure--A Symposium, 54 Mass.L.Q. 203, 223--226. We have upheld the stopping of a car in order to conduct such an inquiry. Commonwealth v. Dottin, 353 Mass. 439, 442, 233 N.E.2d 304; Commonwealth v. Lanoue, 356 Mass. 337, 340, 251 N.E.2d 894.

Upon the facts found by the judge, we think the officer had probable cause to stop the defendant's car. Once the car was stopped it was not unlawful to see the toy gun, which was in plain view. Commonwealth v. LaBossiere, 347 Mass. 384, 386, 198 N.E.2d 405; Commonwealth v. Campbell, 352 Mass. 387, 402, 226 N.E.2d 211; Commonwealth v. Murphy, 353 Mass. 433, 438, 233 N.E.2d 5; COMMONWEALTH V. COLELLA, MASS., 273 N.E.2D 874.^A Search and Seizure--A Symposium, 54 Mass.L.Q. 203, 211. Its temporary seizure was an appropriate step in the continuing inquiry, and the defendant's incredible answers to questions about the gun justified further inquiry. Cf. Commonweath v. Dottin, supra; Commonwealth v. Quish, 356 Mass. 718, 249 N.E.2d 597. What was done from then until the defendant was booked was done with the defendant's consent. Commonwealth v. Slaney, 350 Mass. 400, 406, 215 N.E.2d 177; Commonwealth v. Garreffi, 355 Mass. 428, 431, 245 N.E.2d 442; Commonwealth v. Lanoue, 356 Mass. 337, 341, 251 N.E.2d 894.

These conclusions are reinforced by testimony of the police officers not repeated in the judge's findings. The officer in the cruiser knew the informant as a woman who lived across the street from where the defendant's car was parked, near the scene of the two robberies. He talked to her before he saw the defendant's car. When he first saw the car, the defendant was driving it on Massachusetts Avenue in Lexington; it swung into a gasoline station, turned around without stopping, and started down the avenue in the opposite direction. The defendant matched the rather general description of the robber which had been given to the officer. When asked what he was doing in the area, he said he was just riding around. There was a mattress in the back of the car, and the defendant said he had been living in the car for quite some time. The two guns were identical. Cf. COMMONWEALTH V. BREEN, MASS., 258 N.E.2D 543;^B COMMONWEALTH V. CASS, MASS., 263 N.E.2D 422;^C COMMONWEALTH V. JACKSON, MASS., 271 N.E.2D 328;^D Chambers v. Maroney, 399 U.S. 42, 46--47, 90 S.Ct. 1975, 26 L.Ed.2d 419.

2. The identifications. Both the cashier who testified to the first robbery and the part time employee who testified to the second robbery had identified the defendant at the police station in circumstances which led the judge to suppress those identifications. As the defendant contends, therefore, the burden was on the Commonwealth 'to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than' the confrontations in the police station. United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149; Cooper v. Picard, 316 F.Supp. 856, 860 (D.Mass.); Id., 428 F.2d 1351, 1354 (1st Cir.), states that the factors listed in the Wade case (p. 241 of 388 U.S., 87 S.Ct. p. 1940) 'must be considered': 'the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, and identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.' In addition the facts surrounding the police station confrontations must be developed to determine 'the suggestiveness of the tainted confrontation(s).'

In the present case there was no lineup, no discrepancy between any preconfrontation description and the defendant's actual description, no identification of any person other than the defendant, no identification by picture, and no failure to identify the defendant. Each of the two identifying witnesses had ample opportunity to observe the robber at close quarters in good lighting. Cf. Commonwealth v. Kazonis, 356 Mass. 649, 652, 255 N.E.2d 333; Cooper v. Picard, 316 F.Supp. 856, 863 (D.Mass.). Each did in fact observe the commission of the robbery. Each gave an accurate though somewhat general description to the police shortly after the robbery. Cf. Commonwealth v. Cefalo, 357 Mass. 255, 257--258, 257 N.E.2d 921.

The confrontations in the police station took place five days after the first robbery and one day after the second. They were highly suggestive. The cashier of the Village Food store testified that the police called her up and said 'they had somebody up there and they would like me to come up and identify him.' She went to the police station; an officer told her they were going to bring somebody out and 'he wanted me to identify him, to see if I knew him or not. If he was the one that held up the Village Food Store. * * * So while I was talking to him they did bring out this fellow. As soon as I seen him, I recognized him.' The part time employee of the Cumberland Farms store said the police left a message for him to come down and make an identification. When he walked into the police station, an officer said 'that he had a man that he wanted me to look at. He said he was going to have him brought up. He came up the...