421 Mass. 90 | Mass. | 1995
The defendant, Stephen R. Walker, was indicted for armed robbery of a Dunkin’ Donuts restaurant in downtown Boston. Prior to trial, the defendant, pro se, moved to suppress both in-court and out-of-court identifications of him on the ground that the pretrial identification procedures were unnecessarily suggestive. No evidentiary hearing was held on the admissibility of the identification evidence. The trial judge denied the motion, and the case went to trial, the defendant appearing pro se. A jury found him guilty of armed robbery, and he was sentenced to a term of from nineteen to twenty years at the Massachusetts Correctional Institution at Cedar Junction.
The defendant appealed to the Appeals Court. The defendant asserted reversible error in (1) the judge’s denial of his motion to suppress the victim’s out-of-court and in-court identifications without having granted the defendant an evidentiary hearing; (2) the prosecutor’s comment made in front of the jury to the effect that, if the defendant is going to testify, he should take the stand, and the judge’s failure to give a curative instruction; (3) the judge’s failure to give an instruction on the consciousness of guilt evidence; (4) the omission from the judge’s identification instructions of the
The evidence before the jury was as follows. On November 26, 1990, Fatiha Elbachtany was working as the manager of a Dunkin’ Donuts in downtown Boston. At about 12:30 p.m., a man came into the store and ordered a cup of coffee. He then told her that he had a gun and that he wanted money. The man had a newspaper draped over his arm, but she could see the silver barrel of a gun protruding from the paper. After Elbachtany was unable to retrieve enough money from the cash registers, the man came around the counter, grabbed her by the neck, pushed her into a back room, and made her open a safe. The man took about $1,600 from the safe and left. Elbachtany testified that, while they were in the back room, she was able to observe the robber for approximately four minutes.
Immediately after the robbery, Elbachtany reported it to the police. Within minutes, the police arrived at the Dunkin’ Donuts. Elbachtany described the robber as “a light-skinned
On December 12, 1990, Elbachtany was working in a different Dunkin’ Donuts in Boston. Around noontime, while she was in the back room, a coworker called out to her, in French, to come out front to look at someone. She went to the front of the store and saw a customer whom she believed to be the man who had robbed her on November 26. After the customer left the store, Elbachtany dialed “911.” She told the dispatcher that she had been robbed about two weeks earlier and that she believed that she had just seen the robber. Shortly thereafter, the police arrived, and Elbachtany described the customer to them. She described him as “a black male with light blue eyes and a baseball cap, about forty-five to fifty years old.”
The police went to the Aquarium subway station based on information that the customer had walked in that general direction. In the station, the police saw the defendant, Stephen R. Walker, seated in a train and concluded that he fit the description of the customer. The defendant was removed from the train, searched, handcuffed, and transported to the Dunkin’ Donuts. As he was standing handcuffed beside the police cruiser at the curb accompanied by a police officer, Elbachtany identified the defendant as the robber from behind a plate glass door.
Thereafter, the police took the defendant to the police station and booked him. During questioning, the defendant gave the police a false name and a false date of birth.
1. Motion to suppress identifications. Prior to trial, the defendant filed a motion to suppress the victim’s out-of-court and in-court identifications of him on the ground that the show-up procedure held more than two weeks after the robbery was unnecessarily suggestive.
Under the due process clause of the Fourteenth Amendment to the United States Constitution, “an evidentiary hearing is not required whenever a defendant contends that an improper identification occurred.” See Commonwealth v. Simmons, 383 Mass. 46, 47 (1981); Commonwealth v. Riley, 17 Mass. App. Ct. 950 (1983). We decide that a voir dire was not required.
As no voir dire was held, we consider the defendant’s affidavit in support of his motion to determine whether it established a triable issue of suggestiveness. The defendant
We have repeatedly held that, although inherently suggestive, one-on-one confrontations in the immediate aftermath of a crime need not be suppressed. Commonwealth v. Harris, 395 Mass. 296, 299 (1985). Commonwealth v. Barnett, 371 Mass. 87, 92 (1976). The advantages of such an immediate identification override the suggestiveness of the setting such that the procedure constitutes sound police practice. “Such confrontations permit witnesses to view the suspect while recollection is fresh and before other images crowd in to distort the original picture . . . .” Commonwealth v. Coy, 10 Mass. App. Ct. 367, 371 (1980). “A . . . prompt confrontation yielding a negative result, besides freeing the innocent, informs the police that a possible predisposition on their part is or may be in error and releases them quickly to follow another track.” Commonwealth v. Barnett, supra.
Here, there were sixteen days between the crime and the showup procedure. The defendant argues that the sixteen-day delay, not being in the immediate aftermath of a crime, did not tend to provide the benefits that justify a one-on-one showup. We disagree. As the Appeals Court observed, “[t]he confrontation took place . . . within minutes of Fatiha Elbachtany’s chance observation of the robber, while his appearance on that occasion, at least, was still fresh in her mind and the procedure used, unlike a line-up, could have resulted in the defendant’s immediate release. Moreover, the robbery was still fairly recent; Elbachtany had had an excellent opportunity to observe the robber; and she had provided a detailed identification, which the defendant fit.” We believe the policy reasons favoring a showup procedure in the wake of a crime mirror those favoring a quick identification of a recently spotted, at-large suspect. We agree with the Appeals Court’s determination that “[i]n the circumstances, the
2. Expert testimony. The defendant contends that he was denied due process by the judge’s failure to grant his motion for expert testimony on cross-racial identifications. Assuming favorably to the defendant that he has properly preserved his rights on this issue, we proceed to the merits.
The decision whether or not to allow the use of expert testimony as to the reliability of eyewitness testimony is within the discretion of the trial judge. Commonwealth v. Francis, 390 Mass. 89, 97-102 (1983). Here, the judge could reasonably have concluded in his discretion that the subject of cross-racial identifications was not “one on which the opinion of an expert would have been of assistance to the jury.” Id. at 98. See Commonwealth v. Middleton, 6 Mass. App. Ct. 902 (1978) (Appeals Court found no abuse of discretion in the exclusion of “expert testimony regarding factors affecting the reliability of eyewitness identifications, including stress and the cross-racial nature of the identification”). See also Commonwealth v. Charles, 397 Mass. 1, 8 (1986) (no error in not instructing on cross-racial identifications), citing United States v. Telfaire, 469 F.2d 552, 561 (D.C. Cir. 1972) (Leventhal, J., concurring) (“[t]he issue of inter-racial identifications is not ripe for this kind of distillation of wisdom involving as it does a matter on which there is only ‘meager data’ and an assertion of ‘common sense’ views that merit further consideration”); United States v. Brown, 461 F.2d 134, 145-146 n.l (D.C. Cir. 1971) (Bazelon, C.J., dissenting) (“data on this point is [sic] unfortunately meager”). There was no error.
3. Consciousness of guilt. The Commonwealth introduced evidence that, at booking, the defendant provided the police with a false name and date of birth. False statements to the police are “standard examples” of consciousness of guilt evidence. Commonwealth v. Cruz, 416 Mass. 27, 29 (1993), cit
Trial of this case was completed on March 20, 1992. On August 3, 1993, this court decided Commonwealth v. Cruz, supra, and stated that, when consciousness of guilt evidence is admitted at a criminal trial, judges are required, sua sponte, to instruct the jury that they could not convict the defendant on the basis of evidence of consciousness of guilt alone, and that they may, but need not consider such evidence as one of the factors tending to prove the guilt of the defendant. Commonwealth v. Toney, 385 Mass. 575, 585 (1982). Relying on Cruz, supra, the defendant claims that the failure to give an instruction on the consciousness of guilt evidence was error.
We do not agree. Recently, we reassessed our holding in Commonwealth v. Cruz, supra at 29-30, and concluded that “the better practice is not to require that a judge, on his or her own initiative, instruct on the subject. The matter is left to the sound discretion of the judge, and it will not be error if he or she chooses not to instruct on the subject in the absence of a request.” Commonwealth v. Simmons, 419 Mass. 426, 436 (1995).
4. Prosecutorial and judicial errors. We proceed to discuss the occurrences in the defendant’s trial which we conclude were prosecutorial and judicial errors. As the defendant did not object to any of the occurrences, we must consider whether they created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
a. Comment on the defendant’s failure to testify. When the prosecutor offered in evidence a replica of a gun which the police had seized from the defendant on December 12, the defendant made an appropriate objection based on relevancy. In expressing his objection, the defendant argued in
In making this comment, the prosecutor was obviously complaining about the defendant’s trial tactics. On several prior occasions during cross-examination of Commonwealth witnesses, the defendant, acting pro se, personally argued his case to the jury. On this occasion, the defendant was incorporating a statement of fact into his objection, and the prosecutor sought to direct the judge’s attention to the impropriety. Nevertheless, the prosecutor’s comment might have suggested to the jury that the defendant had an obligation to testify. Such comment, made in open court, was improper. See Commonwealth v. Smith, 387 Mass. 900, 908-909 (1983). Moreover, rather than correcting the error, the judge may have exacerbated the prosecutorial impropriety by responding in front of the jury that his job was difficult enough, “without a side-bar conference with pro se counsel.”
We do not believe, however, that the prosecutor’s and judge’s remarks gave rise to a substantial risk of a miscarriage of justice. The judge’s instructions at the close of the evidence specifically warned the jury not to draw any negative inferences from the defendant’s decision not to testify, and they repeatedly placed the burden of proof on the Commonwealth. See Commonwealth v. Phoenix, 409 Mass. 408, 427 (1991), quoting Commonwealth v. Smith, 387 Mass. 900, 908 (1983); Commonwealth v. Ferreira, 381 Mass. 306,
b. Instructions on identification. In Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979), we prescribed a model jury instruction to be given in eyewitness identification cases. The purpose of the Rodriguez instruction is to emphasize the importance of eyewitness identifications, inform the jury of the Commonwealth’s heavy burden of proof as to the accuracy of the identification, and to furnish the criteria by which the jury can assess the quality of the identification. Commonwealth v. Fitzpatrick, 18 Mass. App. Ct. 106, 110 (1984). The Rodriguez instruction addresses the question, “Is the identification of the defendant as the perpetrator of the crime free of unnecessarily suggestive influences and compelling enough to support a verdict of guilty?” Id.
The Rodriguez instruction also includes language which addresses the situation of a suggestive one-on-one confrontation:
“You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.”
Commonwealth v. Rodriguez, supra at 311. In the present case, the defendant made a written request for that instruc-
*102 “You may also consider the length of time that lapsed between the occurrence of the crime and the opportunity of the witness thereafter to see the offender and identify him or her, him in this case, as the offender as a factor bearing on the reliability of the identification” (emphasis added).
“Ladies and gentlemen, [the victim] was robbed of much more than just the Dunkin’ Donuts’ money. She was robbed of her personal safety and security, her right to work in downtown Boston in broad daylight without being assaulted with a gun by [the defendant]. And unlike the money, her feelings of safety and security can never be replaced. But [the victim] has faith in this system, and you, the jurors, the foundation of that system. And that’s why we’re here today. And though by your verdict you cannot replace her security and her safety, you can, and you will, do justice.”
These remarks were inappropriate. See, e.g., Commonwealth v. Graziano, 368 Mass. 325, 332 (1975) (prosecutor’s comments may not be calculated to play on jury’s sympathy or emotions or to “sweep the jurors beyond a fair and calm consideration of the evidence”); Commonwealth v. Cobb, 26 Mass. App. Ct. 283, 286 (1988) (prosecutor’s arguments should not suggest to jury that they have duty to vindicate victim through guilty verdict).
Nevertheless, we do not believe that the effect was so prejudicial as to warrant a new trial. The defendant did not
At the outset of the trial, the judge informed the jurors that they would “make their findings of fact upon the evidence and nothing else.” That mandate was reiterated throughout the judge’s charge, and the judge instructed the jury that the closing arguments were not evidence. The jurors were also reminded that the defendant was presumed innocent until proved guilty beyond a reasonable doubt. We presume that a jury understand and follow such limiting instructions. Commonwealth v. Jackson, 384 Mass. 572, 579 (1981).
Viewing the prosecutor’s remarks in light of the entire argument, as well as the judge’s instructions to the jury and the evidence at trial, there is no substantial risk of a miscarriage of justice. See Commonwealth v. Costa, 414 Mass. 618, 628 (1993).
d. Whether the combination of errors created a substantial risk of a miscarriage of justice. The final inquiry is whether the prosecutorial and judicial errors, measured cumulatively, created a substantial risk of a miscarriage of justice. The Appeals Court determined that the errors, considered alone or in combination, did not give rise to a substantial risk of a miscarriage of justice. The court reasoned: “We regard the [Commonwealth’s] case ... as considerably stronger than the usual one in which a single eyewitness to a crime makes an identification after a one-on-one showup. Elbachtany was in the presence of the robber for five minutes and had a good opportunity to observe his ap
Our review of the record persuades us that the Appeals Court is correct. We conclude that the combined effect of the prosecutorial and judicial errors was not sufficiently prejudicial to create a substantial risk of a miscarriage of justice.
Judgment affirmed.
On cross-examination, Elbachtany testified that, on December 12, after the defendant was brought back to the Dunkin’ Donuts, and after she identified him as the robber, she had a conversation with the police in which she was told that the police had found a gun on the defendant. She was not informed that the “gun” was actually a cigarette lighter. In response to the defendant’s question whether the conversation about the gun had any bearing on her identification of him as the robber, Elbachtany stated: “It didn’t have anything to do with the identification, because I did it before he told me what he found on you.”
The defendant’s motion did not challenge Elbachtany’s in-court identification on independent grounds.
The judge instructed the jury as follows regarding identification:
“An important issue in this case is the identification of the defendant as the person who committed the crime. The prosecution must prove the identity beyond a reasonable doubt. It is not essential that the witness herself be free from doubt as to the correctness of her statement; however, you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you can convict him.
“If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.
“Identification testimony, which we had in this case, is an expression of belief or impression by a witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and make a reliable identification later.
“In appraising identification testimony, you can consider the following: Are you convinced that the witness had the capacity and an adequate opportunity to observe the offender? Whether the witness had an adequate opportunity to observe the offender at the time of the offense would be affected by such matters as how long, or how short, a time was available; how far or close the witness was; how good were the lighting conditions; whether the witness had had the occasion to see or know the person in the past.
“In general, a witness bases any identification she makes from her perception through the use of her senses. Usually a witness identifies*101 an offender by the sense of sight, but this is not necessarily so. She may use other senses.
“Are you satisfied that the identification made by the witness, subsequent to the offense, was the product of her own recollection? You may take into account both the strength of the identification and the circumstances under which the identification was made. You may consider the possibility of a mistaken identification, that the witness is honestly mistaken, that she made a good-faith error.
“If the identification by the witness may have been influenced by the circumstances under which the defendant was presented for identification, you should scrutinize the identification with great care.
“You may also consider the length of time that lapsed between the occurrence of the crime and the opportunity of the witness thereafter to see the offender and identify him or her, him in this case, as the offender as a factor bearing on the reliability of the identification.
“You may take into account any occasion on which the witness failed to make an identification of the defendant, or made an identification that was inconsistent with the identification here at trial.
“Finally, you must consider the credibility of an identification witness in the same way as any other witness; consider whether she is truthful, and consider whether she had the capacity and opportunity to make a reliable observation on the matter covered in her testimony.
“I again emphasize that the burden of proof on the prosecutor extends to every element of the crime charged, and this specifically includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime for which he stands charged.
“If, after examining the testimony, you have reasonable doubt as to the accuracy of this identification, you must find the defendant not guilty.”
In Commonwealth v. Fitzpatrick, 18 Mass. App. Ct. 106 (1984), the Appeals Court recommended a change to the pattern Rodriguez instruction, and in Commonwealth v. Cuffie, 414 Mass. 632 (1993), we agreed that the suggested change should be made. The revised instruction reads as follows:
“You may also consider the length of time that lapsed between the occurrence of the crime and the opportunity of the witness, some time after the occurrence of the crime, to see and identify the defendant as the offender, as a factor bearing on the reliability of the identification.”
The defendant’s requested instruction on this point was as follows: “You should also give consideration to the length of time that elapsed between the said occurrence of the crime, an[d] the rendering of the identification as a factor bearing on the reliability of the identification.”
The defendant objected to the prosecutor’s closing argument on two occasions. Both objections were made in response to the prosecutor’s references to the defendant’s witnesses. He failed, however, to object to any of the remarks which he now claims were unfairly prejudicial.