Commonwealth v. Vardinski

• Decision Date: 30 November 2001
• Docket Number: No. 99-P-884.,99-P-884.
• Citation: 53 Mass. App. Ct. 307,758 NE 2d 1087
• Parties: COMMONWEALTH v. ANTHONY VARDINSKI.
• Court: Appeals Court of Massachusetts

53 Mass. App. Ct. 307

758 NE 2d 1087

COMMONWEALTH v. ANTHONY VARDINSKI.

No. 99-P-884.

Court of Appeals of Massachusetts, Suffolk.

February 12, 2001.

November 30, 2001.

Present: JACOBS, KAPLAN, & DUFFLY, JJ.

Chauncey B. Wood for the defendant.

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

DUFFLY, J.

At a jury trial on indictments charging the defendant with armed robbery, G. L. c. 265, § 17, and stealing by confining, G. L. c. 265, § 21, the primary issue was identification, as there was no physical evidence linking the defendant to the crime. The defendant appeals his conviction of both crimes and the denial of his motion for a new trial.

We find unpersuasive the defendant's claim that the pretrial identification procedure that resulted in the selection of his photograph from an array was so suggestive as to require per se exclusion, and that his motion to suppress was therefore wrongly denied. We agree, however, that he had the right to attack the identification process at trial and that the limitation on the defendant's cross-examination bearing on the issue of suggestiveness constituted prejudicial error requiring reversal. We discuss the defendant's other claims only to the extent that the issues may arise at a new trial.

Facts. At or shortly before 7:00 A.M. on January 7, 1998, William Morrissey, the vice-president and chief financial officer of Eastern Baker's Supply (Eastern), arrived at the store's location at 145 North Washington Street in Boston. Consistent with his routine, he opened the front door and walked through the store and offices, turning on the lights and disabling the alarm system. Morrissey then walked towards his own office, where the safe was located. There, a man he had never seen before stuck a long barreled black revolver in Morrissey's face and repeatedly screamed at him to "open the fucking safe." Morrissey had difficulty opening the old-fashioned safe, which had a dial combination. It took him about twenty seconds before he succeeded, during which time the gunman continued to scream into Morrissey's face to give him the money. Morrissey emptied the safe's contents into a canvas duffle bag produced by the perpetrator. They argued about whether Morrissey was able to open several other locked compartments within the safe, Morrissey stating that he could not. The robber then demanded and received from Morrissey both wallets that he was carrying on his person. Morrissey was instructed to lie face down on the floor in front of the safe, and he did so until he heard the man run out of the store. He then got up and immediately dialed 911.

At trial, Morrissey testified that the entire encounter took from two to three minutes, and that the perpetrator was never more than two feet away from him in the brightly illuminated office. Morrissey also testified to having observed that the robber was wearing a gray cap¹ that was pushed back on his head so that Morrissey could see his hairline and, because the hairline was unusual, Morrissey took note of it and also of a small band-aid on the robber's chin. Two police officers responded to the call, which had been placed at 7:02 A.M. Morrissey's description of the robber to the officers — as an approximately thirty year old white male, about five feet, seven inches tall, weighing approximately 140 pounds and wearing a light gray sweatshirt, sweat-pants, a scally cap and sneakers — made no reference to his hairline.

The defendant erected a defense of mistaken identity shored, albeit weakly, by alibi.² The police, searching the defendant's home pursuant to a warrant, found no evidence connecting the defendant to the crime. Over the defendant's objection, two witnesses were allowed to testify that from their vantage point at the Veteran's Administration methadone clinic across from Eastern, they had observed the defendant in the vicinity on days prior to the robbery, and that they had made pretrial identifications of the defendant.

Discussion.

1. Motion to suppress. The defendant's motion to suppress Morrissey's pretrial identification was denied by endorsement, unaccompanied by written findings.³ During the suppression hearing the motion judge made statements, in effect oral findings, that the array from which Morrissey had made his selection consisted of a sufficient number of photographs fitting the generic description of the defendant; "there was no indication in this case that there was any coaching ahead of time to select that particular photograph;" and "Morrissey was emphatic that the photograph" he selected was of the person who had robbed him. The judge's findings were not challenged by the defendant, and we conclude that the judge did not err in denying the motion to suppress.

Although the process through which Morrissey selected the defendant's photograph was not so suggestive as to warrant per se exclusion of the identification, Commonwealth v. Johnson, 420 Mass. 458, 462 (1995), it remained available to the defendant to attack Morrissey's identifications at trial on the ground that information conveyed to Morrissey when he signed the mug shot form — specifically information that the defendant had previously been arrested on a firearms charge — had the effect of confirming or bolstering his selection. Where the "procedures ... used to elicit the identifications `may have in some respects fallen short of the ideal,'" the identifications need not be suppressed. Commonwealth v. Correia, 381 Mass. 65, 79 (1980) quoting from Simmons v. United States, 390 U.S. at 385-386 (1968). See Commonwealth v. Mobley, 369 Mass. 892, 896-897 (1976) (no error in denial of motion to suppress; although showing witness pictures of defendant participating in unrelated armed robbery "was undoubtedly prejudicial in some circumstances," it was not prejudicial where it occurred "after the witness had made an unequivocal identification of the defendant from a selection of six pictures of reasonably similar men"). The issue of identification is, however, a proper subject of cross-examination. Commonwealth v. Correia, supra at 79. See Commonwealth v. Jones, 375 Mass. 349, 355 (1978); Commonwealth v. Dougan, 377 Mass. 303, 316 (1979). We proceed to a discussion of the defendant's claim in this regard.

2. Trial judge's evidentiary rulings. We summarize briefly the evidence at trial regarding the pretrial photographic procedure. 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 again 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." 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. Morrissey signed the printout after viewing it, placing his signature on the front of the form next to this printed information.

Massachusetts courts have delineated those pretrial identification procedures that avoid suggestibility in the identification process. The approved procedures include the following characteristics: the array consists of several photographs of individuals having the same general characteristics described by the witness, Commonwealth v. Jones, 375 Mass. 349. 354 (1978); the defendant's photograph included in the array does not stand out, Commonwealth v. Chase, 372 Mass. 736, 740 (1977); police officers conducting the identification procedure do not possess information about the defendant and make "no gestures or comments concerning any set of photographs," ibid.; information about the defendant's prior arrest is not disclosed to the victim at any time, Commonwealth v. Gordon, 6 Mass. App. Ct. 230, 234 (1978); a witness is "not told where the photographs come from or who the individuals shown in them are," Commonwealth v. Avery, 12 Mass. App. Ct. 97, 100 (1981). See United States v. Wade, 388 U.S. 218, 236 n.26 (1967); Simmons v. United States, 390 U.S. 377, 383 (1968); Commonwealth v. Botelho, 369 Mass. 860, 866 (1976); Commonwealth v. Johnson, 420 Mass. 458, 462-463 (1995); Model Code of Pre-Arraignment Procedure § 160.2, Commentary at 434-448 (Proposed Official Draft 1975).⁴ The defendant claims that the trial judge impermissibly limited his efforts to expose the suggestiveness of the photographic identification when she denied his request that the mugshot form signed by Morrissey and admitted in evidence at the Commonwealth's request be presented to the jury in the manner it had appeared to Morrissey.⁵ The copy of the photograph received in evidence to be viewed by the jury contained the printed...