State v. Long

• Citation: 488 A.2d 427
• Decision Date: 28 February 1985
• Docket Number: No. 83-549-C,83-549-C
• Parties: STATE v. Theodore LONG and Timothy Nichols. A.
• Court: United States State Supreme Court of Rhode Island

Page 427

488 A.2d 427

STATE v. Theodore LONG and Timothy Nichols.

No. 83-549-C.A.

Supreme Court of Rhode Island.

Feb. 28, 1985.

Dennis J. Roberts II, Atty. Gen., Thomas Dickinson, Sp. Asst. Atty. Gen., Providence, for plaintiff.

Robert B. Mann, William F. Reilly, Public Defender, Barbara Hurst, Asst. Public Defender, Providence, for defendants.

OPINION

BEVILACQUA, Chief Justice.

This is an appeal by the defendants, Timothy Nichols and Theodore Long, from a judgment of conviction on an indictment charging them with robbery in violation of G.L.1956 (1981 Reenactment) § 11-39-1. The case was tried before a justice of the Superior Court sitting with a jury that returned a verdict of guilty against both defendants. At trial the following facts were established.

Shortly after 8 p.m. on May 1, 1981, Thomas Suave was preparing to close the G & H Arco Station in Warren, Rhode Island, when a red and black Cougar drove up outside the station. A heavyset man emerged from the vehicle and asked Suave where the cigarette machine was, then instead went over to the soda machine. Within a short time a second man, who was the same height but much thinner than the first man, emerged from the car with a brown bag and a .357 Magnum, the muzzle of which he put to the bridge of Suave's nose. The gunman ordered Suave to produce the money from the store's cash register, threatening to kill Suave if he resisted, so Suave handed the heavier set man the money. The heavier man then ordered Suave to produce his billfold, from which $300 was removed. The two men finally left the station, got into their car, and drove away toward Barrington.

Suave reported the robbery to the Warren police and assisted in the preparation of a composite sketch of the robbers. On October 11, 1981, five months after the incident, two Warren police officers visited Suave at his home. Detective Vincent D. Soboleski and Detective Ely Barkett presented Suave with an array of photographs and witnessed his identification of defendants Nichols and Long. Suave positively repeated this identification in court.

Later on October 11, 1981, Suave went to the Warren police station to sign a statement and took note of the same photographs he had previously examined. From these photographs he repeated his previous identification of defendants Long and Nichols.

On appeal, defendants raise the following issues: (1) that certain questions exist in regard to the photographs, that is (a) whether it was error to allow the police who conducted the photo array to testify about their observations, (b) whether the mug shots of defendants should have been admitted as evidence, and (c) whether it was error to allow the in-court identification because the defendants were allegedly unaware of the repetitive viewings of the photographs; (2) that the trial justice erred in instructing the jury on the element of reasonable doubt; (3) that defendants were denied their right to a speedy trial; (4) that the trial justice abused his discretion in allowing the witness to testify to his unique reasons behind his fear at the time of the robbery; (5) that defendant Long was denied the right to counsel in violation of the Sixth Amendment of the United States Constitution and article I, section 10, of the Rhode Island Constitution; and finally (6) that the trial justice committed error in allowing the introduction of money taken from the service station as evidence.

I

The Identification Process

(a)

The defendants argue that the testimony of the police officers regarding their observations of the pretrial identification should not have been admitted into evidence because it was clearly hearsay.

Pretrial identifications generally have equal or greater testimonial value than those made in court because these identifications occurred closer in time to the event and because the suggestions of others and the circumstances of the trial have not yet intervened to create a fancied recognition in the witness's mind. People v. Gould, 54 Cal.2d 621, 626-27, 354 P.2d 865, 867, 7 Cal.Rptr. 273, 275, (1960); Commonwealth v. Torres, 367 Mass. 737, 739, 327 N.E.2d 871, 873 (1975). Because of the greater probative value of these prior identifications, testimony from the identifying witness and from third persons who observed the prior identifications should be admitted. All danger of hearsay is avoided, and the possible prejudicial impact of such testimony is mitigated by the opportunity for confrontation and cross-examination of the declarant. Johnson v. State 237 Md. 283, 289-91, 206 A.2d 138, 142-43 (1965); State v. Matlack, 49 N.J. 491, 499, 231 A.2d 369, 374 (1967). The process of cross-examination abolishes the evils of hearsay because it forces the declarant to testify under oath about the truth of his statement before a trier of fact. State v. Freber, 366 So.2d 426, 427-28 (Fla.1978).

We have previously followed this reasoning in State v. Nordstrom 104 R.I. 480, 244 A.2d 842 (1968). The victim in Nordstrom was a seven-and-one-half-year-old girl who was indecently assaulted by the defendant. The child's father had witnessed her identification of the defendant at a line-up in the prison, and later two State Policemen viewed the victim's identification of the accused at the State Police headquarters. Id. at 481-85, 244 A.2d at 843-45. We found that the testimony of the father and that of the policemen were admissible because of the fairness and reliability of the identification process, and we stressed that any alleged danger of hearsay was not present because the child was available for questioning by the defendant. Id. at 488-89, 244 A.2d at 847.

Accordingly, we hold that the observations of the two police officers concerning Suave's identification are admissible both because there is no indication that the photographic array was at any time suggestive or improper and because Thomas Suave was available for confrontation and cross-examination by defendants.

The defendants' reliance on State v. Ouimette, 110 R.I. 747, 298 A.2d 124 (1972), and In re Daniel, R.I., 456 A.2d 258 (1983), as narrowing the Nordstrom holding is misplaced since these cases concern very different situations. In Ouimette the court allowed the state to introduce prior consistent statements to rehabilitate their witness who had been impeached by prior inconsistent statements. State v. Ouimette, 110 R.I. at 761-62, 298 A.2d at 133-34.

Accordingly, In re Daniel does not qualify Nordstrom because the witness in Daniel was not available for cross-examination. There, the defendant was indicted for committing an indecent assault upon a three-year-old boy. The victim's mother and a police officer testified about the victim's out-of-court identification of the defendant, but the victim himself did not testify because he was just a young child. The court therefore held that the testimony of both the mother and the police officer was inadmissible hearsay. In re Daniel, R.I., 456 A.2d at 260-61.

In light of our decision in Nordstrom, we affirm the trial justice's denial of the motion to preclude the testimony of the two police officers.

(b)

The defendants contend that the mug shots should have been excluded insomuch as they were insufficiently sanitized and in view of the fact that the state demonstrated no specific need for their introduction.

In State v. Lemon, R.I., 456 A.2d 261 (1983), we adopted the guidelines for the introduction of mug shots as set out in United States v. Fosher, 568 F.2d 207 (1st Cir.1978). The three guidelines are: (1) the prosecution must have a demonstrable need to introduce the photographs; (2) the photographs themselves, if shown to the jury, must not imply that the defendant had a prior criminal record; and (3) the manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs. State v. Lemon, R.I., 456 A.2d at 264-65, (citing United States v. Fosher, 568 F.2d at 214). Once these three factors are established, then the pictures may be introduced.

The defendants in the case at bar objected both generally and specifically at the end of their motion to exclude the mug shots. They claimed that the state failed to prove a demonstrable need and that the photographs could never be sufficiently sanitized. Right before the state gave its opening statement, and before the jury was present, defendants again objected to the introduction of the photographs even though the state had sanitized them according to the trial justice's order, but they did not specifically object to the state's lack of demonstrable need. It is a well-established principle in this jurisdiction that this court will consider only those matters that have been properly raised in the court below. Fiske v. MacGregor, Division of Brunswick, R.I., 464 A.2d 719, 726 (1983). A party who fails to assert his specific objections is deemed to have waived his rights on appeal. Russell v. Kalian, R.I., 414 A.2d 462, 465 (1980). We find, however, that defendants have not waived their rights on appeal regarding the first factor of the Fosher test, whether the state has proven a demonstrable need, since this ground of exclusion should have been obvious to the trial justice and the opposing counsel stating it. The record indicates that the trial justice wished to waste no more time on the issue of the admissibility of the mug shots but wanted to proceed with the trial. We shall therefore decide whether the trial justice was in error in admitting the mug shots, relying on factors 1 and 2, and if so, whether this error was prejudicial.

Undoctored mug shots from a police-department rogues' gallery could be indicative of past criminal behavior and could likely create in the minds of the jurors an inference of such behavior. The double-shot picture, with front and profile shots alongside each other, and evidence of chains holding police numbers could reasonably lead one to believe that...