Com. v. Worlds

• Decision Date: 13 February 1980
• Citation: 9 Mass.App.Ct. 162,399 N.E.2d 1121
• Parties: COMMONWEALTH v. Jerry WORLDS.
• Court: Appeals Court of Massachusetts

Page 1121

399 N.E.2d 1121

9 Mass.App.Ct. 162

COMMONWEALTH v. Jerry WORLDS.

Appeals Court of Massachusetts, Worcester.

Argued Sept. 11, 1979.

Reargued Jan. 10, 1980.

Decided Feb. 13, 1980.

Beth H. Saltzman, Boston, for defendant.

Lynn Morrill Turcotte, Asst. Dist. Atty., for the Commonwealth.

Before GRANT, BROWN and DREBEN, JJ.

GRANT, Justice.

The defendant has appealed from his conviction on an indictment for armed robbery, urging error in the denial of his motion to suppress all pretrial and anticipated in-court identifications of himself by the alleged victim of the robbery (Lee) and by one King. The following is a summary of the relevant evidence adduced at the hearing on the motion.

Shortly after midnight on July 30, 1977, Lee and King arrived in Lee's automobile at a disco located on Chandler Street in Worcester. They parked in a lot behind the disco and were walking down a driveway toward Chandler Street when they encountered two black males. The two blacks taunted and then assaulted them; a third black male joined the assault while two others acted as lookouts. Altogether, the incident lasted twenty to twenty-five minutes, during which time Lee and King were knocked to the ground, beaten, kicked and robbed. One assailant placed a knife to Lee's throat, forced him to open his automobile, and took a tape deck found therein. The assailants then fled.

The lighting at the scene of the incident was dim, consisting of lights on the porches of a neighboring hotel, lights on the wall of another building, and a street light some distance away. Nonetheless, Lee was able to observe the two blacks who had initiated the assaults during the entire incident. He observed not only his own assailant but also those assaulting King, about twenty-five feet away. He saw that King had been knocked to the ground and was being kicked in the face and that he continued to lie where he had fallen even after the assailants had fled.

After the assaults had ended, Lee got into his automobile and drove to where King lay. King got in, and the two drove a short distance to Federal Square, where they encountered Worcester Police Officer John Germain. They gave him an account of the incident and described their assailants as four or five black males, one of whom was about six feet tall and wearing a green knit shirt with gold zigzag stitching on the sleeves and around the neck.

Germain convinced Lee and King to return with him in his cruiser to the scene of the incident. They stopped first on Chandler Street, and Germain asked Lee and King if they could recognize anyone in a crowd of twenty to twenty-five blacks standing in front of the disco. When neither victim recognized anyone, Germain drove to the parking lot in the rear of the building, where the incident had occurred, and parked on the sidewalk of a driveway leading from the lot to Murray Avenue. He observed an automobile parked on Murray Avenue in which three black males were sitting and asked Lee and King if they could identify any of the occupants. They replied that they could not because they could not see the occupants clearly. Germain asked the three men to get out of their automobile, and when they had complied again asked Lee and King if they could recognize anyone. Viewing the three blacks from a distance of eight to ten feet, approximately fifteen minutes after the crime, and in lighting similar to that in which they had seen their assailants, Lee and King both identified one of the three, the defendant, as having been involved. They failed to inform Germain of their identifications in positive terms because they were fearful of the large number of blacks in the immediate area. Germain requested identification from the defendant but left the scene without taking him into custody.

Two days later, on August 1, Lee and King were summoned to a police station for the purpose of viewing photographs. They were shown four books ¹ containing approximately one hundred sixty photographs, some in black and white and some in color but all of them depicting black males. Before displaying the books, the police obtained a black and white photograph of the defendant from another police station and inserted it among the other photographs. Viewing the photographs independently of each other, Lee and King selected three of them as depicting their assailants. Among the three selected was the photograph of the defendant. ²

On August 4 the police arrested the defendant, took him to a police station, and booked him. Lee and King were again summoned to the station, and were taken together to a room on the second floor. They were told to look around to see if they could recognize anyone. They observed the defendant and positively identified him as one of their assailants. At the time, the defendant was the only black male in the room and was sitting alone in one of several glassed-in cubicles. Though he had telephoned his attorney, she had not yet arrived at the station. Later that afternoon the defendant was formally arraigned. ³

Some time later Lee and King were again summoned to the station to confront the other two persons whose photographs they had selected. They identified one of those persons as having been involved in the incident but concluded that they had been mistaken in selecting the other photograph.

The judge found that the parking lot confrontation and the photographic identifications were free of suggestiveness. He failed to make a finding with respect to whether the stationhouse confrontation was impermissibly suggestive, but he did make ultimate findings to the effect that the identifications resulting from that confrontation were reliable in light of all the circumstances. ⁴ At trial, both Lee and King identified the defendant as one of their assailants, and both testified to all their pretrial identifications of him.

The proper standard of review of a judge's findings in identification cases has been variously stated, but the correct formulation of its essentials is clear. Where subsidiary findings of fact have been made by a judge on a motion to suppress they will be accepted by an appellate court in the absence of clear error. His resolution of conflicting testimony must be accepted, and his subsidiary findings will not be disturbed if they are warranted by the evidence. Commonwealth v. Murphy, 362 Mass. 542, 550-551, 289 N.E.2d 571 (1972) (Hennessey, J., concurring). Commonwealth v. Sires, 370 Mass. 541, 544 n.1, 350 N.E.2d 460 (1976). Commonwealth v. Moon, --- Mass.App. ---, --- ^a, 394 N.E.2d 984 further appellate review granted, --- Mass. --- (1979). ^b By contrast, the judge's ultimate findings and his rulings of law, particularly those which are of constitutional dimensions, are reviewable on appeal, although his conclusions are entitled to substantial deference. Commonwealth v. Murphy, 362 Mass. at 551, 289 N.E.2d 571. Commonwealth v. Jones, 375 Mass. ---, --- - --- ^c, 377 N.E.2d 903 (1978).

1. The parking lot confrontation. The defendant does not argue that there was anything impermissibly suggestive about the confrontation which occurred in the parking lot. He contends only that there was no identification at that time. The judge found to the contrary, and as that finding was warranted by the evidence we do not disturb it.

2. The photographic identifications. The ultimate finding that the photographic identifications were free of suggestiveness is supported by detailed findings of subsidiary facts. The judge found that all the photographs in the books were mugshots contained in mugbooks; that the photograph of the defendant was placed in one of the books prior to their being shown to Lee and King; that the photograph was not placed in a conspicuous position; that it was a black and white photograph but that there were enough other black and white photographs in the books to prevent its being conspicuous for that reason; that it did not differ from the other photographs in any other conspicuous respect; and that Lee and King viewed the photographs independently of each other. Those subsidiary findings are all warranted by the evidence. Although there was conflicting testimony with respect to whether Lee and King viewed the books at approximately the same or at different times, in neither version of the testimony was there anything to suggest that they had viewed the photographs jointly or that they had communicated with each other concerning their respective selections of photographs. Compare Commonwealth v. Cincotta, --- Mass. ---, --- ^d, 398 N.E.2d 478 (1979). All the testimony with respect to the time at which the defendant's photograph had been inserted in one of the books and with respect to its position therein supported the judge's findings. The testimony with regard to the similarity of the defendant's photograph to the other photographs in the array supports the findings on that question, and the judge had before him the actual books used and the actual photograph selected. The fact that the defendant's photograph may have differed in some respects from others in the books is not sufficient to establish that the array was suggestive. Commonwealth v. Clark, --- Mass. ---, --- - --- ^e, 393 N.E.2d 296 (1979).

The burden was on the defendant to prove by a preponderance of the evidence that the viewings had been conducted in an impermissibly suggestive fashion. Commonwealth v. Venios, --- Mass. ---, --- ^f, 389 N.E.2d 395 (1979). The bulk of his present argument consists of disputing the judge's subsidiary findings, but those findings are supported by the evidence. The defendant also argues that the neutrality of the array was negated by the effects of the prior confrontation in the parking lot. Factually, he may be correct in that contention, but the law is clear that an initial permissible confrontation may be repeated without offending due process. See Commonwealth v. Cox, --- Mass.App. ---, --- ^g, 384 N.E.2d 224 (1979). Compare...