427 Mass. 729 | Mass. | 1998
The defendant appeals from convictions of unarmed robbery and of being a habitual criminal. He claims that his unarmed robbery conviction ought to be reversed because the evidence against him was the tainted fruit of an unlawful stop by the police, and the robbery victims’ identifications of him violated his due process rights. The defendant also challenges the habitual criminal conviction on the grounds that the judge abused her discretion under G. L. c. 278, § 11 A, in refusing to empanel a new jury to try the habitual criminal indictment, and that his ensuing jury waiver was ineffective under G. L. c. 263, § 6, because it was made after the empanelment of the jury. Finally, the defendant argues that his motion to dismiss the indictments should have been allowed because the Commonwealth presented to the grand jury irrelevant and inflammatory evidence regarding his other crimes. We transferred the case to this court on our own motion and now affirm.
I
At approximately 1 a.m., on October 9, 1994, Dr. Eugene Vaninov was returning home in Brookline with his wife, Ellen, and thirteen year old daughter, Alla. Doctor Vaninov intended to drop off his wife in front of their apartment building, park their vehicle, and walk home with his daughter. As he dropped off his wife, Dr. Vaninov saw a man get out of the passenger side door of a gray motor vehicle and quickly follow Mrs. Vaninov into the apartment building.
Mrs. Vaninov entered the vestibule of the building. The lock on the interior door had been broken for some time and the door could be opened simply by pushing it. She noticed that a man was following her up the stairs to her apartment. She hurried into her apartment and managed to “shut the door right in front of [the man’s] face.”.
Dr. Vaninov instructed Alla to remain in the vehicle and approached the building. He entered the building approximately forty-five seconds after his wife, and noticed the man who had followed his wife standing in the vestibule. After he went through the interior door into the building, Dr. Vaninov heard that door open behind him and, as he turned around, saw the man approach him quickly. The man immediately struck Dr. Vaninov several times, breaking his glasses and knocking him to the floor. He snatched Dr. Vaninov’s wallet, seized his watch, and fled.
At approximately 1:15 a.m., two Boston municipal housing police officers, Thomas Fay and Timothy Brady, were on patrol in the area of the Mission Hill housing development near Ruggles Street. They noticed a 1985 gray Buick Regal automobile double-parked in a parking area in front of a townhouse at 240-260 Ruggles Street. There were two persons inside, and the engine and rear lights were on. The Buick was parked at a right angle to other motor vehicles that were parked facing in to 240-260 Ruggles Street. Both officers were aware that this townhouse was the subject of an ongoing narcotics investigation. They had also previously arrested several individuals in the same area for narcotics offenses.
Officer Fay positioned his cruiser behind the Buick, thus blocking its exit from the parking lot, and approached the driver’s side to make a “threshold inquiry.” He noticed damage to the left side of the steering column and suspected the motor vehicle to be stolen. Officer Fay gestured to Officer Brady to request a police dispatcher to run a stolen motor vehicle check. When asked, the driver, later identified as Joseph Williams, stated that he was not the owner of the motor vehicle. While waiting for a response from the dispatcher, Officer Brady saw the passenger of the Buick, later identified as the defendant, make several attempts to open his door. On receiving confirmation that the Buick had been stolen in Boston on the previous day, Officer Brady ordered the defendant to leave the vehicle. The defendant jumped out and began to run. Officer Brady promptly pursued him on foot. After placing Williams in custody and putting him into the back seat of the cruiser, Officer Fay drove the cruiser down Albert Street to assist Officer Brady. The defendant was apprehended and also placed into the rear of the cruiser. The two officers then drove back to Ruggles Street, where the Buick had been left parked with its engine running.
Officer Fay observed two handbags on the rear seat of the Buick, and the contents of a handbag and a wallet on the floor of the front passenger seat. These items were later identified as
Shortly thereafter, two Brookline police cruisers arrived at Ruggles Street with the victims of the earlier robbery. Dr. Vaninov was in the back seat of one cruiser driven by Officer Jeffrey Hutnick. When the defendant was brought to Officer Hutnick’s cruiser, Dr. Vaninov identified him as the robber. When Williams was brought over, Dr. Vaninov was unable to identify him. Mrs. Vaninov was in the back seat of the other cruiser driven by Sergeant Michael McCarthy. When the defendant was brought to Sergeant McCarthy’s cruiser, Mrs. Vaninov identified him as the robber. She too was unable to identify Williams.
During these identifications, both the defendant and Williams were handcuffed. Flashlights were used to illuminate their faces. The area was also well lit by street lights. The defendant and Williams were placed between six and fifteen feet from the cruisers where the victims were seated.
Dr. Vaninov’s wallet was retrieved from the front passenger floor of the stolen Buick. The defendant was wearing Dr. Vaninov’s watch. He also had a $5 and a $10 bill in his pants pocket folded separately from his other cash. Dr. Vaninov had earlier reported that a $5 and a $10 bill were the only cash in his wallet. Dr. Vaninov’s credit cards were also found in Williams’s pockets.
Prior to trial, Williams moved to suppress all evidence as fruit of an illegal seizure violative of the Fourth and Fourteenth Amendments to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. The defendant separately moved to suppress the Vaninovs’ identifications of him as having arisen from an identification procedure so unnecessarily suggestive as to violate his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. A combined hearing on both motions was held. The motion judge made written findings of fact and rulings of law on the motions, and denied them. She ruled that the stop by Officers Fay and Brady was justified by a reasonable suspicion based on specific and articulable facts. The judge further ruled that the identification procedure was not unnecessarily suggestive and
On January 30, 1996, the jury found the defendant guilty on unarmed robbery and assault and battery charges. The Commonwealth then moved for a trial on the habitual offender indictment. The defendant requested that the trial judge empanel a new jury to try this charge. When the judge denied the motion, the defendant waived his right to a trial by jury. The judge found the defendant guilty, and pursuant to G. L. c. 279, § 25, and c. 265, § 19, sentenced him to the maximum term of life imprisonment on the robbery conviction. She placed the assault and battery conviction on file with the defendant’s consent.
The defendant appealed, and we transferred the case to this court on our own motion.
II
A
The defendant argues that all the evidence against him, including the Vaninovs’ out-of-court and in-court identifications of him as the robber, was tainted fruit of an unlawful stop under the Fourth and Fourteenth Amendments and art. 14. His argument fails because the officers’ initial stop was justified by a reasonable suspicion of criminal activity.
A stop occurred when Officers Fay and Brady positioned their cruiser behind the Buick, blocking its exit. “[A] person has been ‘seized’ ... if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980), quoted in Commonwealth v. Borges, 395 Mass. 788, 791 (1985). More particularly, an officer initiates a threshold inquiry that must be reasonable within the meaning of the Fourth Amendment and art. 14 when he parks a police cruiser with the intention and effect of blocking a suspect’s motor vehicle and preventing it from leaving. See Commonwealth v. Helme, 399 Mass. 298, 300 (1987); Commonwealth v. King, 389 Mass. 233, 241 (1983).
We must therefore determine whether the stop was reasonable given the “specific and articulable facts” found by the judge. Terry v. Ohio, 392 U.S. 1, 21 (1968). A stop is justified if the officers have a “reason to suspect that a person has commit
The facts of this case are very similar to those of Almeida. Officers in both cases approached a parked motor vehicle very late at night. See id. at 268. Like the officers in Almeida, supra, Officers Fay and Brady knew from personal experience that the motor vehicle was parked in a high crime area. Moreover, they were aware that the townhouse in front of which the motor vehicle was parked was the subject of a narcotics investigation.
B
The defendant next contends that the admission at trial of the testimony regarding the Vaninovs’ identifications at Ruggles Street, and the subsequent in-court identifications, violated his due process rights under the Fifth and Fourteenth Amendments and art. 12 because the identifications at Ruggles Street resulted from an unnecessarily suggestive procedure. We conclude that
One-on-one pretrial identifications are generally disfavored because they are viewed as inherently suggestive. Commonwealth v. Johnson, 420 Mass. 458, 461 (1995); Commonwealth v. Barnett, 371 Mass. 87, 91-92 (1976), cert. denied, 429 U.S. 1049 (1977). But, as we stated in Commonwealth v. Austin, 421 Mass. 357, 361 (1995):
“[A] one-on-one pretrial identification raises no due process concerns unless it is determined to be unnecessarily suggestive. Whether an identification procedure is ‘unnecessarily’ or ‘impermissibly’ suggestive . . . involves inquiry whether good reason exists for the police to use a one-on-one identification procedure . . . bearing in mind that . . . ‘[ejxigent or special circumstances are not a prerequisite to such confrontations’ ” (citations omitted).
Although stating that the analysis cannot be generalized, the Austin court went on to observe:
“Relevant to the good reason examination are the nature of the crime involved and corresponding concerns for public safety; the need for efficient police investigation in the immediate aftermath of a crime; and the usefulness of prompt confirmation of the accuracy of investigatory information, which, if in error, will release the police quickly to follow another track.”
Id. at 362.
The identifications in this case were justified because they constituted parts of an efficient police investigation in the immediate aftermath of a crime. See Commonwealth v. Howell, 394 Mass. 654, 660 (1985); Commonwealth v. Barnett, supra at 92. The officers found two handbags and a wallet in the car, suggesting that they were loot from recent robberies. The officers checked whether there had indeed been such robberies, and were informed about the Brookline incident, which had occurred just one hour before. The identification procedure allowed the officers to establish a connection between the stolen goods and the men, and provided Dr. and Mrs. Vaninov a good opportunity to view suspects while their recollections were
Because the initial identifications at Ruggles Street were properly conducted, the subsequent in-court identifications were also proper, and there is no need to determine whether independent sources existed for the in-court identifications. See Commonwealth v. Johnson, 420 Mass. 458, 463 (1995); Commonwealth v. Botelho, supra at 866.
III
The defendant also argues that the judge abused her discretion under G. L. c. 278, § 11A, in refusing his request that a new jury be empanelled to try the habitual criminal indictment. Section 11A specifically states,
The defendant additionally argues that the judge’s refusal to empanel a new jury rendered his ensuing waiver of trial by jury ineffective. The defendant bases his argument on the text of G. L. c. 263, § 6, the pertinent portion of which states:
“Any defendant in a criminal case other than a capital case, whether begun by indictment or upon complaint, may, if he shall so elect, when called upon to plead, or later and before a jury has been impanelled to try him upon such indictment or complaint, waive his right to trial by jury by signing a written waiver thereof and filing the same with the clerk of the court.” (Emphasis added.)
In Commonwealth v. Collado, 426 Mass. 675, 677 (1998), we ruled that the judge’s allowance of the defendant’s waiver of his right to trial by jury after empanelment was complete violated § 6.
IV
Officer Hutnick was the only witness presented by the prosecution to the grand jury. At the prosecutor’s request, Officer Hutnick read Officer Fay’s report which referred to several wallets and handbags found in the Buick in which the defendant and Williams were seized. For indictment of the defendant as a habitual criminal, the prosecution also had Officer Hutnick recite the defendant’s criminal record. The defendant argues that presentation of this evidence impaired the integrity of the grand jury proceeding and thus violated his due process rights under the Fifth and Fourteenth Amendments and art. 12. Therefore, the defendant contends, his motion to dismiss the indictments should have been allowed.
We have in the past expressed our reservations about the prosecution’s gratuitous presentation of a defendant’s criminal record to a grand jury. See, e.g., Commonwealth v. Koney, 421 Mass. 295, 305 (1995); Commonwealth v. Freeman, 407 Mass. 279, 282-283 (1990); Commonwealth v. Champagne, 399 Mass. 80, 84 (1987). But, as a general rule, a court should not inquire into the quality of evidence heard by a grand jury unless “extraordinary circumstances” obtain, Commonwealth v. Lammi, 310 Mass. 159, 163-164 (1941), and cases cited, and this is not such an extraordinary case. The disputed evidence regarding the stolen goods found in the Buick in which the defendant and Williams were seized constituted a part of a description of the circumstances in which the defendant was apprehended. And the evidence regarding the defendant’s past criminal activities was certainly relevant to the defendant’s indictment as a habitual criminal. The information furnished to the grand jury was neither false nor deceptive. See Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986). “There is nothing to indicate that the prosecutor had purposely sought to
There is no reason to set aside the defendant’s two convictions.
Judgments affirmed.
The opinion in Commonwealth v. Almeida, 373 Mass. 266 (1977), is not clear about when the stop took place: at the time the police officers approached the motor vehicle to make an initial inquiry, or only after they had made that inquiry and the observations that accompanied it. Even if the latter reading is correct, which we doubt, the officers in the instant case had a firmer basis for effecting a stop prior to any inquiry than was present in Almeida. The motor vehicle in this case was not parked in a generic “high crime rate area” as in Almeida, supra at 268. Rather, it was parked within a parking area in front of a building that was the subject of an ongoing narcotics investigation, in the vicinity of which several narcotics-related arrests had been made.
The relevant portion of § 11A states:
“If a defendant is charged with a crime for which more severe punishment is provided for second and subsequent offenses, and the complaint or indictment alleges that the offense charged is a second or subsequent offense . . . [and] [i]f a defendant pleads guilty or if there is a verdict or finding of guilty after trial, then before sentence is imposed, the defendant shall be further inquired of for a plea of guilty or not guilty to that portion of the complaint or indictment alleging that the crime charged is a second or subsequent offense. . . . [I]f [the defendant] pleads not guilty thereto, he shall be entitled to a trial by jury of the issue of conviction of a prior offense, subject to all of the provisions of law governing criminal trials. A defendant may waive trial by jury. The court may, in its discretion, either hold the jury which returned the verdict of guilty of the crime, the trial of which was just completed, or it may order the impanelling of a new jury to try the issue of conviction of one or more prior offenses.” (Emphasis added.)
We, however, went on to hold that, in noncapital cases, an unintentional violation of G. L. c. 263, § 6, will result in a reversal only if the defendant can show a substantial risk of a miscarriage of justice. Commonwealth v. Collado, 426 Mass. 675, 678 (1998).