Commonwealth v. Vardinski

• Citation: 438 Mass. 444,780 NE 2d 1278
• Parties: COMMONWEALTH v. ANTHONY VARDINSKI.
• Decision Date: 15 January 2003
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

438 Mass. 444

780 NE 2d 1278

COMMONWEALTH v. ANTHONY VARDINSKI.¹

Supreme Judicial Court of Massachusetts, Suffolk.

October 8, 2002.

January 15, 2003.

Present: MARSHALL, C.J., GREANEY, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Rami M. Vanegas, Assistant District Attorney, for the Commonwealth.

Chauncey B. Wood for the defendant.

MARSHALL, C.J.

A Superior Court jury convicted the defendant of armed robbery, G. L. c. 265, § 17, and stealing by confining, G. L. c. 265, § 21. He was sentenced to a term of from nine to twelve years in a State prison on the first indictment and three years' probation on the second indictment. No physical evidence linked the defendant to the crime; the verdicts were based on the victim's identification of the defendant from a photographic array compiled by the police. The defendant appealed from his convictions and the denial of his motion for a new trial, arguing in part that he had been unfairly denied the opportunity to probe the reliability of the identification. The Appeals Court reversed the judgments and the order denying a motion for a new trial. See Commonwealth v. Vardinski, 53 Mass. App. Ct. 307, 317 (2001). We granted the Commonwealth's application for further appellate review.

The critical issue in this case is whether the defendant's constitutional and statutory rights to present a defense and to cross-examine witnesses were impermissibly limited by the judge's decisions (1) to preclude from evidence an exact version of the "mugshot"² used to identify the defendant, and (2) to prohibit the defense counsel from offering in evidence a prior charge against the defendant listed on the "mugshot" form and the disposition of that charge. We agree with the Appeals Court that these evidentiary rulings were reversible error mandating a new trial.

1. Background. We recite the facts as summarized by the Appeals Court, supplemented where necessary with undisputed material of record. On the morning of January 7, 1998, as he entered his place of business in Boston, William Morrissey was confronted by an unmasked stranger wielding a gun. After a tense encounter lasting between two and three minutes, during which the intruder continuously shouted at Morrissey and brandished a gun no more than two feet away from him, a "terrified" Morrissey surrendered to the robber two wallets and the contents of a safe. Immediately after the robbery, Morrissey notified the police.

What happened next is succinctly recounted by the Appeals Court:

"Two days following the robbery, at the request of Detective James Moy, Morrissey went to the police station to look at photographs of possible suspects. Morrissey described the person who had robbed him as a slightly built white male, approximately five feet, seven inches tall, and weighing approximately 130 to 140 pounds, but... gave no particularized details, such as the unusual hairline he testified at trial to having observed. Detective Moy set up a photo array using a computerized photo imaging machine — essentially an electronic mug book — by entering the general criteria provided by Morrissey as to the perpetrator's race, height and weight. A computerized data bank search generated the photographic images of 999 males meeting these criteria, meaning that there were likely more males that met these criteria but only the maximum number of 999 would be transmitted for viewing. Morrissey was instructed that he would be viewing one image at a time, and that by clicking on a computer `mouse' button he could advance to the next image after viewing each image for as long as he wished. At a certain point in the process Morrissey selected a photograph, number 82, of `the man that robbed me.'[³] The photograph was of the defendant. Detective Moy printed a copy of the photograph selected by Morrissey. This printout contained the inscription `Boston Police Department Mugshot Form' and included a front and profile view of the defendant. The printout also set forth the defendant's name and other identifying information, and listed a booking number, an October, 1997 booking date and the information that Anthony Vardinski had been arrested for illegal possession of a firearm on that date.[⁴] Morrissey signed the printout after viewing it, placing his signature on the front of the form next to this printed information."

Commonwealth v. Vardinski, supra at 311. In all, Morrissey viewed a total of 258 photographs. It should be noted that the image on the computer screen, selected by Morrissey as the "carbon copy" of the man who had robbed him, contained only the photograph of the defendant; it contained no reference to the Boston police department, nor did it contain any information identifying the defendant or his criminal history. Only the printout, which Morrissey did not see until after he made his initial identification from the computer image, contained the information, described above, relating to a prior charge.

After Morrissey had identified the defendant, law enforcement officials showed a photograph of the defendant to Lieutenant Richard Leeman with the Veterans Administration (VA) police department, who worked at the VA clinic across the street from Morrissey's place of business and who was in the vicinity at the time the crime was committed. Leeman, in turn, showed the photograph to a VA patient, Jorge Lebron Colon. Both men said that they had seen the defendant in the area, but could not confirm his presence there on the day of the crime. Neither man could remember precisely when he had seen the defendant.

Prior to trial, defense counsel moved to suppress Morrissey's pretrial identifications of the defendant.⁵ The judge denied the motion. Having lost this key ruling, defense counsel adopted mistaken identification as the primary defense at trial. It is undisputed that the defendant was not permitted to develop this defense in the manner he desired. Specifically, defense counsel sought to introduce evidence that Morrissey's initial identification of the defendant from the computer image was reinforced and tainted by Morrissey's learning from the printed form of the mugshot he later signed that the defendant had been booked on a prior firearms charge.⁶ Defense counsel raised no objection when the Commonwealth introduced in evidence the mugshot signed by Morrissey that referenced the prior charge, but defense counsel did object when the judge, after a discussion of the exhibit at a sidebar conference requested by the Commonwealth, ordered the mugshot redacted before being shown to the jury.⁷ When defense counsel attempted to mention the prior firearms charge and its disposition in his opening statement and later to witnesses, the judge prohibited him from doing so over his numerous and strenuous objections.⁸

In her charge, the judge did not include an instruction on "honest mistake," although taken as a whole the instructions did alert the jury that witnesses' identifications could be inaccurate. In the midst of their deliberations, the jury asked to be reinstructed on the standard for reasonable doubt. The judge repeated her instructions to the jury, and the jury returned guilty verdicts on both indictments.

Thus, the jury had before them during their deliberations an inexact copy of the printed mugshot that Morrissey signed, indicating only that Vardinski had been booked for a prior charge, the date of the booking, and that the photograph was a Boston police department mugshot. The jury had no information that the prior charge was for firearms possession, although Morrissey had this information at the time he signed and dated the photograph. Nor did the jury (or Morrissey) have information that the prior firearms charge had been nolle prossed. Against this backdrop, we consider the constitutional issues raised by the defendant.

2. Constitutional claims. The defendant claims that his State and Federal constitutional rights to present a defense and to cross-examine witnesses pursuant to the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights were violated when the judge refused to allow both a full cross-examination of the prosecution's witnesses and the introduction in evidence of the signed identification photograph in its original form.⁹ See G. L. c. 263, § 5.¹⁰, ¹¹ Because in this one witness identification case the right to cross-examine is so closely linked to the right to put on a defense, we shall discuss both under the more specific right to cross-examine. We must determine, first, whether the defendant's constitutional rights were violated, and, second, if a violation is found, whether reversal is warranted because the error was not harmless beyond a reasonable doubt. See Commonwealth v. Miles, 420 Mass. 67, 73 (1995) (violation of right to cross-examine must be reversed unless harmless beyond reasonable doubt).

Cross-examination has been called "the greatest legal engine ever invented for discovering the truth." Maryland v. Craig, 497 U.S. 836, 846 (1990), quoting California v. Green, 399 U.S. 149, 158 (1970). The right to cross-examine witnesses is fundamental to our criminal justice system. Where the issue at a criminal trial is identification, the right to cross-examine must be scrupulously protected. This is so because while many, if not the majority of, criminal cases turn on eyewitness identification of the defendant, see Commonwealth v. Correia, 381 Mass. 65, 75 (1980), "[e]yewitness identification of a person whom the witness had never seen before the crime or other incident presents a substantial risk of misidentification and increases the chance of a conviction of an innocent defendant." Commonwealth v. Jones, 423 Mass. 99, 109 (1996). "[S]tudies conducted by psychologists and legal researchers ... have confirmed that eyewitness testimony is often hopelessly unreliable." Commonwealth v. Johnson, 420 Mass. 458, 467 (1995). Thus, "whenever eyewitness evidence is introduced...