7 Mass. App. Ct. 292

February 13, 1979 - March 23, 1979

Middlesex County

Present: HALE, C.J., ROSE, & PERRETTA, JJ.

At a robbery trial, evidence that a witness viewed the robber from a very short distance and in excellent light for sixteen to twenty-two seconds under circumstances likely to fix the robber's face in his memory and that he identified a photograph of the defendant soon after the robbery and prior to a possibly suggestive confrontation with the defendant in a courthouse lobby warranted a finding that the witness's in-court identification of the defendant had a source independent of the pretrial confrontation. [295-296]

INDICTMENT found and returned in the Superior Court on December 10, 1975.

The case was tried before Alberti, J.

Joseph W. Monahan, III, for the defendant, submitted a brief.

James W. Sahakian, Assistant District Attorney, for the Commonwealth.

HALE, C.J. The defendant appeals (G. L. c. 278, Sections 33A-33G) from his conviction of armed robbery (G. L. c. 265, Section 17). One week prior to trial on this charge the defendant moved for leave to file a motion to suppress identification late. [Note 1] The judge denied that motion after a brief argument

Page 293

on the morning of the first day of trial. [Note 2] On the second day of trial, after the jury had been empanelled, the judge held a voir dire hearing on what must have been an oral motion limited to the suppression of the identification testimony of the victim, one Arena. Following that hearing, the judge refused to suppress Arena's testimony. The correctness of that ruling is the only question argued in this appeal. We summarize the pertinent facts found by the judge after the hearing on the defendant's motion to suppress.

At about 2:00 P.M. on September 24, 1975, Arena was accosted in his pharmacy by a man holding a handgun. Arena did not see the gunman until he was alongside him but then was able, from close range and in a well lit area, to observe him for fifteen to twenty seconds. The gunman forced Arena to open his narcotics cabinet and stand facing toward the rear of the shop. However, Arena saw the gunman again when he took a one or two second look at him for the purpose of being able to identify him later. [Note 3] About an hour after the incident, Arena viewed a suspect through a one-way mirror at the police station in Watertown but did not identify him as the robber.

The next day police officers asked Arena to look at a set of approximately ten photographs from which Arena picked out the defendant's photograph which he indicated resembled the robber. [Note 4] The defendant does not contend that the procedure or the array in this or in any of the other photographic identifications was suggestive.

Page 294

On September 29, Arena went to the district courthouse in Waltham. [Note 5] While in the courthouse lobby he was asked by a police officer whether he recognized anyone in the lobby. He pointed out the defendant, who was standing twenty-five to thirty feet away, [Note 6] as the man who had robbed him.

On November 17, 1975, before attending the probable cause hearing, Arena again picked the defendant's photograph out of a group of about ten photographs. It was not shown whether the other photographs in the group were the same as those in the group seen by him on September 25, 1975.

On the morning of March 11, 1977, before the defendant's initial trial (which ended in a mistrial) on the present indictment, Arena was again shown a group of photographs from which he again chose the same photograph of the defendant. [Note 7] He identified the defendant in court during the course of the trial.

The judge orally denied the motion to suppress, stating that the time during which Arena observed the defendant in the course of the holdup "was sufficient enough for Mr. Arena to come in and make an identification." Thereafter the judge filed written findings in which he stated that

Page 295

Arena's time of observation was sufficient to enable him to select the defendant's photograph from the groups of photographs shown to him and to make at least two positive in-court identifications of the defendant. At trial on direct examination by the Commonwealth, Arena identified the defendant and testified to the initial photographic identification of the defendant. On cross-examination the defendant elicited testimony by Arena as to some of the subsequent identifications, including the one in the courthouse lobby.

The evidence adduced at the voir dire hearing shows that Arena viewed the robber from a very short distance and in excellent light for sixteen to twenty-two seconds under circumstances likely to fix the robber's face in his memory. Commonwealth v. Frank, 357 Mass. 250 , 254 (1970). Commonwealth v. MacMillan, 5 Mass. App. Ct. 314 , 319 (1977). He never identified anyone other than the defendant as the robber, even though he might have done so at a live one-to-one confrontation conducted before he ever saw a photograph of the defendant. He also identified the defendant or his photograph on every occasion when he was called upon to do so. Commonwealth v. Flaherty, 1 Mass. App. Ct. 282 , 286-287 (1973). He identified a photograph of the defendant soon after the robbery and prior to the confrontation at the District Court. Commonwealth v. MacMillan, 5 Mass. App. Ct. at 319. In the totality of the circumstances the judge's conclusion (though expressed in other words), that Arena's proposed identification testimony had a source independent of the pretrial confrontation, was warranted. Commonwealth v. Jackson, 377 Mass. 319 , 331-332 (1979), and cases cited. See Commonwealth v. Frank, 357 Mass. at 253-254 (1970); Commonwealth v. Ross, 361 Mass. 665 , 672 (1972), judgment vacated and remanded on other grounds, 410 U.S. 901, affirmed on rehearing, 363 Mass. 665 , cert. denied, 414 U.S. 1080 (1973); Commonwealth v. Roberts, 362 Mass. 357 , 364 (1972); Commonwealth v. Flaherty, 1 Mass. App. Ct. at 286-288; Commonwealth v. MacMillan, 5

Page 296

Mass. App. Ct. at 318-320. Cf. United States v. Wade, 388 U.S. 218, 240-241 (1967). Thus, even if the confrontation in the District Court lobby could be considered impermissibly suggestive (compare Commonwealth v. Kazonis, 356 Mass. 649 , 652-653 [1970], and Commonwealth v. Botelho, 369 Mass. 860 , 863-865 [1976], with Commonwealth v. Chase, 372 Mass. 736 , 745 [1977]), the identification testimony adduced at trial from Arena by the Commonwealth had a basis independent of that confrontation and was, therefore, admissible.

Judgment affirmed.


[Note 1] The defendant had previously been tried on the present indictment, but that earlier proceeding ended in a mistrial. There is an indication in the transcript that a motion to suppress identification testimony had been made and denied at the earlier proceeding, but no record of such actions appears in the docket entries.

[Note 2] The judge ordered the motion to suppress (which had been docketed) struck from the docket.

[Note 3] At trial Arena testified that he had described the robber to the police soon after the incident.

[Note 4] Arena testified at the voir dire hearing that: "When I came to the one I recognized, I laid it aside and when I was through looking at them all, I told the police that this picture resembled the man who held me up the day prior."

[Note 5] Arena testified that he went to the courthouse at the request of the police and for the purpose of making an identification.

[Note 6] Arena testified on voir dire that there were very few other people in the lobby at the time, perhaps as few as three or four. He stated that the policeman who met him there directed his attention to "the other corner" of the lobby to see if he recognized anyone there. He saw "the man who held me up [last] week." The defendant was standing with a woman and an "older gentleman" (his attorney). No uniformed officer was in the near vicinity of the defendant, and he was not handcuffed or otherwise restrained.

[Note 7] Arena testified that he had also chosen the defendant's photograph out of an array in the assistant district attorney's office at a time between the date of the probable cause hearing and the first day of the first trial. Another identification witness, one Kittredge, was in the room as well, but Arena did not recall whether she had picked out a picture in his presence.