Com. v. Wilson

• Decision Date: 12 February 1970
• Citation: 255 N.E.2d 744,357 Mass. 49
• Parties: COMMONWEALTH v. Robert F. WILSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 744

255 N.E.2d 744

357 Mass. 49

COMMONWEALTH v. Robert F. WILSON.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Jan. 6, 1970.

Decided Feb. 12, 1970.

Robert A. Stanziani, Boston, for defendant.

A. Russell Lucid, Jr., Special Asst. Atty. Gen., for the Commonwealth.

Before WILKINS, C.J., and KIRK, SPIEGEL and REARDON, JJ.

SPIEGEL, Justice.

The defendant was tried on an indictment which charged aht on or about May 11, 1968, he 'did assault and beat Richard Webber, with intent to kill and murder him, by shooting him, and by such assault and beating did kill and murder said Richard Webber.' The jury returned a verdict of guilty of murder in the first degree with a recommendation that the sentence of death be not imposed. The case was tried subject to G.L. c. 278, §§ 33A--33G, and is here by way of appeal. The defendant filed twenty-three assignments of error but argues only seven of them. Those assignments not argued the deemed waived. Commonwealth v. Kleciak, 350 Mass. 679, 681, 216 N.E.2d 417.

On Saturday, May 11, 1968, between 6 and 6:30 P.M. Richard Webber, the victim, left the North Quincy Taxi Company office, where he was employed as a driver. He was next seen by one Barbara Bennett, a waitress and bartender at the Quincy Lounge, Quincy, when she reported for work at 6:45 P.M. The defendant 'came in' after Mrs. Bennett had gone on duty as the bartender. One Victor J. Barbati, an owner of the Quincy Lounge, arrived at the lounge '(b)etween eight and 8:30.' Following Barbati's arrival, the defendant and Webber exchanged words, after which 'they grabbed each other and * * * fell * * * to the floor. * * * Webber was on the floor on his back * * * (and the defendant) was on top of him.' Barbati then went over to the two men 'and tried to break * * * up' the fight. He 'pulled' the defendant off Webber and 'tried to * * * take him out of the bar.' However, Webber 'got up and charged towards * * * (the defendant), swinging at * * * (him).' The defendant then broke away from Barbati and the two men 'started * * * fighting again.' The fight was finally stopped and the defendant was 'pulled * * * outside the door.' In the interim Webber left the lounge and proceeded in the direction of 'the North Quincy cab stand, Quincy Square.'

On that same evening, John A. Davis, the night dispatcher for the North Quincy Taxi Company 'came to work' at 5 P.M. When Davis arrived, Webber was then at the office on 'stand-by duty,' waiting to see whether 'he may have been needed to drive at night.' Webber left the stand 'between 6:00 and 6:30' P.M. The taxi company office was equipped with a two-way radio, a desk, a pair of telephones and other equipment. On the evening in question Davis, as was his custom, went out of the office and 'screwed in' the light on the 'left-hand side of the * * * building.' Prior to 8:30 P.M. he noticed that the street lights were on and the lighting was 'excellent.' About 9 P.M. Webber 'returned to the cab stand. * * * He looked nervous and afraid * * * his clothes were disarranged, and he had a couple of marks on him.' After Webber entered the office, he walked to the desk where Davis was sitting, 'picked up the phone * * * dropped * * * (it), and * * * was fumbling around with different objects on the desk.' When Webber entered the office he left the door open and Davis observed the defendant approaching the building. After talking with Davis, Webber 'stepped outside the cab stand.' The defendant was then standing 'about twelve or fifteen feet' from the office, when Webber left the building. Webber was 'yelling, '(l)eave me alone, stay away from me, stay away from me, leave me alone. " The defendant stepped up on the curb holding a forty-five calibre automatic in his hand. He had 'the gun in around his chest area, * * * he pulled * * * (it) up * * * leveled it toward * * * Webber who was running, and he shot.' Davis 'ducked' under the desk after the shot was fired. As he arose he saw the defendant turn and run. Shortly thereafter Davis 'went out and put * * * (his) sweater over * * * Webber.' The cause of Webber's death was 'a gunshot wound of the heart.' A forty-five calibre bullet was removed from his 'left front chest.'

At the time the shooting occurred one Sean O'Brien, a driver for the taxi company, was also present at the office and his testimony substantially corroborated Davis's.

1. Assignments 12 and 13 claim error in the judge's denial of the defendant's motion to suppress 'the identification testimony' of the witnesses O'Brien and Davis.

The defendant argues that the improper identification procedure involving the photographs and 'the display of photographs of the defendant to the two eyewitnesses to the murder in the absence of the defendant's retained counsel' were respectively a denial of due process of law under the Fourteenth Amendment of the Constitution of the United States and a violation of the Sixth Amendment 'right to counsel at a critical stage of the proceedings.'

We shall first discuss the propriety of the identification procedures. On Sunday, May 12, 1968, O'Brien, in the presence of defence counsel, observed the defendant at a lineup containing nine men which was conducted at the Quincy police station. Although O'Brien recognized the defendant, he did not identify him at that time. On the following Tuesday O'Brien called the district attorney and subsequently went to his office. O'Brien discussed the case for about an hour with the district attorney and with one Lieutenant John Regan of the State police. During this meeting O'Brien was not shown any photographs of the defendant. The next day two State police officers came to O'Brien's home and told him that they had a picture of the lineup O'Brien had viewed the previous Sunday. Before O'Brien was shown the photograph, he told the officers that the defendant was the 'fourth one in one the right as you are looking at the photo.' O'Brien then drew a circle around the defendant's picture. At the trial O'Brien was asked the following question: 'At the time you saw * * * (the defendant) at the Quincy (p)olice (s)tation in the lineup, is there any question in your mind that you were able to recognize the defendant * * *?' He replied, 'The minute I saw him in the lineup I recognized him.' He did not identify the defendant at that time because he 'was scared.'

The defendant maintains that his position in the lineup suggested the defendant to O'Brien. The evidence, however, readily answers this contention. Although the defendant was the fourth man from the right, immediately adjacent to three policemen who were known to O'Brien, he was immediately recognized by O'Brien. In these circumstances we believe that the defendant's placement in the lineup was not so 'unnecessarily suggestive and conducive to irreparable mistaken identification' as to be a denial of due process of law. Stovall v. Denno, Warden, 388 U.S. 293, 301--302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199. See Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247.

We next discuss the identification of the defendant by Davis. On the evening the shooting took place Davis told the Police he did not think he could identify the individual who did the shooting because 'he did not get a good look at his face.' On May 12, 1968, Davis, at the request of the police, went to the police station. He was shown a '(p)icture of a lineup,' but he did not identify the defendant. Following this visit Davis knew that the defendant had been arrested and he had seen a television clip showing the defendant being taken into custody. Between three and five days after the shooting, Davis was visited by two State police officers and was shown a photograph of the lineup viewed by O'Brien. Davis did not make an identification at that time. On Sunday, May 19, 1968, Davis was again requested to come to the police station and was shown two 'face view' photographs of the defendant. Again Davis did not identify the defendant.

On May 24, 1968, Davis finally identified the defendant at a probable cause hearing held at the Quincy District Court. It is well recognized that 'convcitions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside * * * only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, supra, at 384, 88 S.Ct. at 971. Davis testified that he had several opportunities to observe the defendant. He 'saw the full view' of the defendant's face, accurately described the defendant's physical appearance, and the clothing the defendant was wearing at the time of the shooting. At the trial Davis was asked the following question in cross-examination: '(I)s it fair to say * * * that * * * last May 11, 1968 you weren't sure of the identification of * * * (the defendant) but that you are today? Davis replied that this was not so. He stated that he did not identify the pictures of the defendant because he 'was very much afraid of repercussions about this * * * (for) his family and himself.' Although Davis admitted that on the night the shooting took place he told the police he 'didn't get a good look' at the defendant's face, he said the reason he told this to the police at that time was because he 'was afraid.'

Even assuming that the identification procedure was improper we are of opinion that the 'in-court identifications (of the defendant) had an independent origin.' United States v. Wade, 388 U.S. 218, 242, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149. Davis's in-court identification of the defendant was 'purged of the primary taint' of any improper identification procedure. United States v. Wade, supra, at 241, 87 S.Ct. 1926. COMMONWEALTH V. COOPER, 248 N.E.2D 253^A.

We now consider the defendant's contention that he was denied counsel at a critical stage of the...