COMMONWEALTH vs. GEORGE E. CLARK.

ABRAMS, J. On December 20, 1972, Edward J. Donovan, the manager of the My Way Lounge located in the Cambridge Holiday Inn, was shot and killed by two male patrons

Page 393

during an attempted armed robbery of the lounge. George E. Clark was arrested, indicted and, after a jury trial, convicted of the murder in the first degree of Donovan. Clark appeals pursuant to G. L. c. 278, Sections 33A-33G.

The defendant argues assignments of error concerning (1) the denial of his motion to suppress identification testimony; (2) the refusal of the court to require the Commonwealth to produce certain photographs shown to witnesses; and (3) the denial of his motion for a directed verdict. The defendant also seeks relief under G. L. c. 278, Section 33E, asking that we reverse his conviction and order a new trial or, alternatively, that we reduce the verdict to accessory after the fact. We affirm the conviction and we decline to exercise our powers under G. L. c. 278, Section 33E.

We summarize the evidence. Shortly after 11 P.M. on December 19, 1972, two men entered the My Way Lounge at the Holiday Inn located in Cambridge. Both men were black, and were between the ages of twenty-five and thirty-five. One of the men appeared to be slightly taller than the other.

The two men sat at the horseshoe-shaped bar, and the taller of the two ordered two bottles of Budweiser beer from the bartender, one Patricia Delong. Delong opened the bottles and placed one bottle in front of each of the men. She also placed a napkin and a glass in front of each man.

About forty-five minutes later, the same man asked Delong for two more Budweisers. Delong removed the first two bottles, which were empty, and placed them in a wastebasket located against the inside of the bar. She then served each man another bottle of Budweiser beer.

After the two men finished their second bottles of Budweiser, Delong removed the bottles and placed them in the same wastebasket. She then informed the men that the lounge would close shortly and asked if they wished to order another beer. Neither man placed an order.

A few minutes before 1 A.M. on December 20, Delong locked the liquor cabinets, washed off the top of the bar

Page 394

and removed the money from the cash register. She placed the money in a small cashbox, walked to the end of the bar and handed the money to Edward Donovan, the manager. Delong then walked toward the kitchen area to leave for the night.

She had taken only a few steps when she was confronted by one of the black men who earlier had been sitting at the bar. He pointed a revolver at her and said something to the effect that "this is a holdup" or "put your hands up."

The second black man put a gun to Donovan's head and reached for the cashbox. Donovan said, "No, no way. You're not going to get it." Donovan then threw down the cashbox and reached for his own gun, which Donovan wore in a holster on his hip. Both men fired, and Donovan fell to the floor. His assailant then took a step backward and fired at Donovan three more times. Both of the black men then left the scene, leaving the cashbox on the floor.

One of the other customers then told everyone in the bar not to touch anything until the police arrived. The rescue squad arrived along with the police and Donovan was pronounced dead at the scene. An autopsy later revealed that Donovan died as a result of his gunshot wounds.

During the course of their investigation, police examined the contents of the bartender's wastebasket located on the inside of the bar. They discovered five empty Budweiser beer bottles in the basket. [Note 1] These five bottles, along with some glasses, were removed and later checked for fingerprints.

The fingerprint examination revealed that the defendant's fingerprints appeared on two of the empty Budweiser beer bottles recovered from the bartender's wastebasket. The defendant's thumbprint was also found on one of the glasses taken from the lounge where the perpetrators had been seated.

Page 395

At about 2 A.M. on December 20, three black men arrived in a gold-colored Buick automobile at the gatehouse guarding the entrance of the Chelsea naval Hospital. The men told the security guard that one of them had been shot in the arm. The guard allowed the men to enter the grounds. The guard then returned to the gatehouse and informed his sergeant, one John Hunter, of the incident.

The sergeant followed the men to the hospital emergency entrance where he copied the license number of the Buick. He then went inside the hospital and questioned the two men who were not being treated.

In response to the sergeant's questions, the shorter of the two men gave his name as Irving Mallory and his address as 29 Wyoming Street. [Note 2] However, the man said that he had forgotten to bring any identification with him.

The sergeant then left the emergency room and returned to the gatehouse to make out his report. Shortly thereafter, the two men who were not wounded also left the hospital grounds.

A hospital physician removed a bullet from the third member of the group and determined that the man was not seriously injured. [Note 3] The man left the hospital the next morning.

The incident at the Chelsea Naval Hospital was reported to Cambridge police a few days later. The police were given the bullet taken from the wounded man. They found that the bullet had been fired from Donovan's gun.

Within three weeks, Cambridge police had procured a picture of the defendant from the defendant's wife. Police officers included this picture in a group of photographs shown to the sergeant who had questioned the men at the

Page 396

hospital. The sergeant picked out the picture of the defendant as bearing a "striking resemblance" to the man who had given the name "Irving Mallory" at the hospital.

Police questioned the defendant on April 18, 1975. Clark initially denied ever having been in the Cambridge Holiday Inn. However, when police informed Clark that his fingerprints had been found at that location be said that he may have been in the Holiday Inn with his girl friend on one occasion. Later, Clark admitted to having been at the Holiday Inn earlier in the evening of December 19, 1972.

The defendant presented Andrei Clark as a witness. [Note 4] Mrs. Clark denied having given Clark's photograph to police. However, she said that the person in the photograph had the same facial features as Clark, but that the hair and clothes were different.

The jury found Clark guilty of murder in the first degree. The judge sentenced him to life imprisonment. G. L. c. 265, Section 2.

I. Motion to Suppress Identification Testimony.

Clark claims that the judge erred in denying a motion to suppress the identification testimony of John Hunter. Clark argued to the judge that Hunter's identification testimony should be suppressed because Hunter was unable to provide an unequivocal identification of the defendant. Clark further argued to the judge that a photograph which Hunter picked out of an array of photographs shown to him should be suppressed because the Commonwealth had not established that the photograph was a picture of the defendant. [Note 5] On appeal, Clark

Page 397

asserts that the testimony should have been suppressed because it resulted from a constitutionally impermissible pretrial photographic identification procedure. [Note 6]

None of the defendant's arguments relating to Hunter's identification testimony is properly before us. [Note 7] A defendant "is not permitted to raise an issue before the trial court on a specific ground, and then to present that issue to this court on a different ground." Commonwealth v. Flynn, 362 Mass. 455, 472 (1972). See Commonwealth v. Johnson, 371 Mass. 862, 867 (1977); Commonwealth v. Lewis, 346 Mass. 373, 383 (1963), cert. denied, 376 U.S. 933 (1964). Nonetheless, to avoid a "substantial risk of a miscarriage of justice," we have reviewed the record to determine whether any of the defendant's arguments has merit. Commonwealth v. Lovett, 374 Mass. 394, 403 (1978). See G. L. c. 278, Section 33E. See also Commonwealth v. Johnson, supra at 867. We find no error in the denial of the defendant's motion to suppress. [Note 8]

Page 398

The facts relating to the identification testimony indicate that during the early morning hours of December 20, 1972, Hunter was the sergeant on security duty at the Chelsea Naval Hospital. After the gatehouse guard allowed an automobile containing three men to enter the grounds, the guard reported the incident to Hunter and Hunter followed the vehicle to the hospital emergency entrance. Hunter then entered the hospital and questioned two of the individuals who had arrived in the automobile. Hunter stated that he never saw or spoke with the man who was being treated for the gunshot wound.

Hunter provided a detailed description of each of the men whom he questioned, and stated that the shorter of the two had given the name "Irving Mallory," and gave an address of "29 Wyoming Street." Hunter also stated that "Mallory" had subsequently made a telephone call, and that Hunter was close enough to the man to overhear the conversation. The man said, "Lewis Brown ha[s] been shot" and "I think we're in big trouble."

Approximately three weeks after the incident, Hunter went to the Cambridge police station where he was shown an array of thirteen photographs. All of the photographs were of black men of approximately the same age and build. Eleven of the photographs were of the "mug shot" variety, showing two views of the individual pictured. The other two photographs were snapshots: one showed a man standing upright; the other showed an individual wearing a necktie.

Hunter picked out one of the double-view photographs as showing an individual with the same hairstyle as one of the men he had questioned at the hospital. Hunter picked out the snapshot of the man wearing the necktie as bearing a "striking resemblance" to the man who had given the name "Irving Mallory" at the hospital. According to Hunter, he picked the snapshot because of the resemblance to "the facial features of the ... gentleman in question."

Page 399

On appeal, Clark bases his challenge to Hunter's identification testimony on the assertion that Hunter's identification was the product of a pretrial photographic identification procedure which was "unquestionably unduly suggestive." Specifically, Clark argues that the fact that Clark's photograph was one of two snapshots shown to the witness along with eleven "mug shots" unfairly attracted the witness's attention to Clark's photograph and "was conducive to irreparable mistaken identification since the suggestive photograph, once chosen, was unlikely to erase itself from the witness' mind."

The defendant relies primarily on Simmons v. United States, 390 U.S. 377 (1968), to support his claim. In Simmons, the Supreme Court held that "convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Id. at 384. We do not think that the photographic identification procedure after which Hunter "identified" the defendant is prohibited by Simmons. [Note 9]

The defendant's argument that the photographic array was impermissibly suggestive rests solely on the fact that the defendant's photograph was one of two snapshots in a group with eleven "mug shots," since all thirteen photographs were of black males of roughly the same description. Clark's argument boils down to the assertion that any difference in the size, shape or type of photograph in

Page 400

the array is always inherently suggestive. We do not agree.

The difference in the photographs here in no way suggested to the witness the person that the police had under investigation. The defendant does not claim that the difference in photographs was used impermissibly to suggest to the witness which photograph was that of the suspect. [Note 10] Rather, he suggests that the difference alone was impermissibly suggestive and thus both the photographic and the in-court testimony of Hunter must be suppressed.

"The difference between [the defendant's] photograph and the other mug shots would hardly suggest to an identifying witness that [the defendant] was more likely to be the culprit; nor did the photograph single out any distinguishing personal characteristics of defendant not possessed by the men in the other photographs." United States v. Magnotti, 454 F.2d 1140, 1142 (2d Cir. 1972) (witness shown array of seven "mug shots" and "a fullview photograph of the defendant"). Thus the difference in the photographs, taken alone, does not make the array impermissibly suggestive. United States v. Sherry, 318 A.2d 903, 904-905 (D.C. 1974) (single-view snapshot of defendant in array with eleven double-view photographs, all of similar white males, not unfairly suggestive). United States v. Harrison, 460 F.2d 270, 271 (2d Cir.), cert. denied, 409 U.S. 862 (1972). See Whitt v. State, 266 Ind. 211, 215-216 (1977); State v. Cass, 356 So. 2d 936, 942 (La. 1977). Cf. Commonwealth v. Kostka, 370 Mass. 516, 523-524 (1976); United States v. Marchand, 564 F.2d 983, 995 (2d Cir. 1977), cert. denied, 434 U.S. 1015 (1978); United States v. Cunningham, 423 F.2d 1269, 1271-1273 (4th Cir. 1970); People v. Fox, 65 App. Div. 2d 880, 881 (N.Y. 1978); State v. Davis, 294 N.C. 397, 405-406 (1978); Commonwealth v. Wilcox, 481 Pa. 284, 289-290 (1978).

Page 401

The circumstances surrounding Hunter's identification of the defendant's photograph provide added support for the conclusion that Hunter's identification was not the product of an impermissibly suggestive procedure. Hunter testified that while his attention was drawn to the defendant's photograph because it was different from most of the others, he chose the photograph solely because of the man's facial characteristics. See Commonwealth v.Mobley, 369 Mass. 892, 894-895 (1976). Significantly, the defendant's photograph was not the only snapshot in the array, and Hunter rejected the other single-view snapshot. Compare United States v. Sherry, supra (array including defendant's photograph as the only single-view snapshot in array of twelve photographs not impermissibly suggestive); United States v. Magnotti, supra at 1141. Hunter's care in examining all of the photographs is also evidenced by the fact that he identified one of the double-view photographs as showing the hairstyle of the other man he had seen at the Chelsea Naval Hospital.

Further, at the time Hunter viewed the array of photographs, police had made no arrests in this case, which involved a homicide. Thus the police had little alternative than to resort to photographic identification. [Note 11] See Simmons v. United States, supra at 384-385.

Finally, the defendant argues that in any event the photograph should not have been admitted as evidence. We think that "[t]he introduction of the photograph in evidence was permissible as an aid to the jury in matching the description given by the witness with the features of [the defendant]." Commonwealth v. Locke, 338 Mass. 682, 687 (1959) (witness testified that photograph of the defendant resembled "facial characteristics" of driver of getaway vehicle). See Commonwealth v. Vitello,

Page 402

376 Mass. 426, 460 n.29 (1978). Cf. Commonwealth v. Hicks, 377 Mass. 1, 7 (1979). See also United States v. Malatesta, 583 F.2d 748, 758 (5th Cir. 1978), modified on other grounds on rehearing en banc, 590 F.2d 1379, cert. denied sub nom. Bertolotti v. United States, 440 U.S. 962 (1979) ("The fact that an identification is less than positive does not render it inadmissible"); United States v. Eatherton, 519 F.2d 603, 609 (1st Cir.), cert. denied, 423 U.S. 987 (1975). Moreover, since the photograph was the subject of conflicting testimony it was clearly appropriate for the judge to admit it as evidence for the jury's consideration.

Viewed in light of the totality of the circumstances, we conclude that the pretrial photographic identification procedure used by police in this case is not "so impermissible suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons, supra at 384. Accord, Commonwealth v. Mobley, supra at 895-897. There was no error.

II. Motion to Produce Photographs Shown to Witnesses.

Clark maintains that his motion for the production of photographs shown to or seen by witnesses for the Commonwealth who were unable to identify the defendant should not have been denied. According to the defendant, the judge's refusal to require the Commonwealth to produce these photographs following the defendant's general pretrial motion for the production of exculpatory evidence "prejudiced the Defendant's constitutionally guaranteed right to due process of law." See United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963). We do not agree.

During oral argument, the defendant conceded that the judge properly denied the defendant's motion, made during trial, for the production of the photographs shown to the witnesses. The Commonwealth is not required to produce the photographs. See, e.g., Commonwealth v. Brown, 376 Mass. 156, 161-164 (1978); Commonwealth v. Gibson, 357 Mass. 45, 46-47, cert. denied, 400 U.S. 837 (1970); Commonwealth v. Clark, 3 Mass. App. Ct. 481, 484-485

Page 403

(1975). Instead, the defendant now limits his argument to the assertion that "the defendant had a right to know whether or not the photographs exhibited to the witnesses did in fact contain a photograph of George Clark."

Where a witness identifies a defendant during a pretrial photographic identification procedure after the witness has been unable to make an identification from another group of photographs, the defendant is entitled to know whether the defendant's photograph actually appeared in both sets of photographs. [Note 12] Commonwealth v. Clark, supra at 485. See Commonwealth v. Brown, supra at 162-163. Presumably, such information would serve to aid the defendant in impeaching any identification made by that witness. Accord, Commonwealth v. Dougan, 377 Mass. 303, 316-317 (1979).

Here only Hunter identified the defendant. The only array shown to Hunter was available to the defendant and is an exhibit. To the extent that the defendant's argument is that other witnesses, who were unable to identify the defendant, may have bypassed the defendant's picture in the array, that argument is without merit. Those witnesses could neither identify the picture of the defendant, nor could they identify him at trial. Thus there is no error in the denial of the defendant's motion.

III. Denial of the Motion for Directed Verdict.

The defendant maintains that the denial of his motion for a directed verdict of acquittal, made at the close of the Commonwealth's case, was error. In reviewing the denial of a motion for directed verdict, we consider only the evidence introduced up to the time the Commonwealth rested its case. Commonwealth v. Tabor, 376 Mass. 811, 824 n.20 (1978). Commonwealth v. Amazeen, 375 Mass. 73, 79-80 (1978). Commonwealth v. Kelley, 370 Mass. 147, 150

Page 404

(1976). The question is whether, considered in its light most favorable to the Commonwealth, the evidence presented by the Commonwealth, "is sufficient so that the jury `might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt.'" Commonwealth v. Clifford, 374 Mass. 293, 296 (1978), quoting from Commonwealth v. Vellucci, 284 Mass. 443, 445 (1933). See Commonwealth v. Vitello, 376 Mass. 426, 460-461 (1978). Viewed in this light, the facts set forth in the summary of facts, supra, provide sufficient evidence from which the jury could find the defendant guilty of murder in the first degree.

The defendant argues that only the fingerprints found on the two empty Budweiser beer bottles recovered from the bar's wastebasket place him at the location on the night of the murder. [Note 13] According to the defendant, he was in the motel restaurant, but not the bar, on the evening in question. The defendant asserts that the bottles on which his fingerprints appeared could have been brought into the bar and placed in the wastebasket by a restaurant waitress. Hence the defendant concludes that the Commonwealth has not presented sufficient evidence to warrant submitting the case to the jury.

In Commonwealth v. LaCorte, 373 Mass. 700 (1977), we recognized that in most jurisdictions the mere fact that a fingerprint is found at the scene of a crime is insufficient to warrant submitting the case to the jury. There must also be "further evidence linking the defendant to the crime ... [enabling] the prosecution to establish beyond a reasonable doubt that the fingerprints in fact were placed at the scene during the commission of the crime." Id. at 703.

Page 405

Here, witnesses testified that the two men who attempted the armed robbery resulting in Donovan's death were the only black patrons in the bar that evening. The bartender testified that she served four bottles of Budweiser beer to the two men involved in the killing, and that each of the men drank two bottles of beer. The bartender further testified that after the men finished their bottles of beer, she placed each of the four bottles in the wastebasket under the bar.

Immediately after the killing, police recovered the bottles from the wastebasket. The uncontradicted testimony of the police officers establishes that there were exactly five empty Budweiser beer bottles in the wastebasket. [Note 14] The defendant's fingerprints were later found on two of these bottles, as well as on a glass found at the bar.

From this evidence alone, the jury could reasonably infer not only that the defendant was at the motel, but also that the defendant was in the bar, and that he was one of the two men to whom the bartender had served the bottles of beer. Since the wastebasket contained only one empty Budweiser beer bottle not served to individuals involved in the killing, the jury were entitled to consider whether an individual whose fingerprints appeared on two of the Budweiser bottles found in the wastebasket as well as on a glass found at the bar was one of the men involved in the killing. See Commonwealth v. Jones, 360 Mass. 498, 501 n.2 (1971); McNeil v. State, 227 Md. 298, 300 (1961) ("It is generally recognized that fingerprint

Page 406

evidence found at the scene of a crime must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime"); Lawless v. State, 3 Md. App. 652, 659 (1967). See also In re M.M.J., 341 A.2d 421 (D.C. 1975). Cf. Hack v. Commonwealth, 433 S.W.2d 877, 878-879 (Ky. 1968). See generally A. Moenssens & F. Inbau, Scientific Evidence in Criminal Cases 374-379 (2d ed. 1978). Thus the fingerprint evidence in this case, taken alone, satisfies the requirements of the rule to which we alluded in Commonwealth v. LaCorte, supra at 703. When combined with the other evidence presented by the Commonwealth, including Hunter's identification of the defendant as having a "striking resemblance" to the man at the Chelsea Naval Hospital, there was sufficient evidence from which the jury could find the defendant guilty of murder in the first degree. See Commonwealth v. Fitzgerald, 376 Mass. 402, 407-408 (1978); Commonwealth v. Hoffer, 375 Mass. 369, 377 (1978); Commonwealth v. Clifford, supra at 296. See generally United States v. Roberts, 481 F.2d 892, 893-894 (5th Cir. 1973). [Note 15]

IV. Relief Pursuant to G. L. c. 278, Section 33E.

The defendant asks that we exercise our authority pursuant to G. L. c. 278, Section 33E, to order a new trial. In the alternative, he asks that we "enter ... an order reducing the verdict to that of accessory after the fact."

The defendant's arguments for a new trial merely repeat his arguments discussed earlier. We have found no

Page 407

error and decline to order a new trial. See Commonwealth v. Haywood, 375 Mass. 755, 771 (1979). Cf. Commonwealth v. Brown, 376 Mass. 156, 166-168 (1978).

The defendant also asks that we order the reduction of the verdict to that of accessory after the fact, claiming that the fingerprint evidence placing the defendant at the scene of the killing is "inconclusive." The Commonwealth argues that the jury's verdict was "fully supported by the weight of the evidence and the law." The Commonwealth also questions whether our authority to direct a verdict "of a lesser degree of guilt" may be construed to authorize us to order the reduction of a verdict of murder in the first degree to that of accessory after the fact, or whether our authority is limited to consideration of lesser included offenses. Cf. Commonwealth v. Rutledge, 356 Mass. 499, 503 (1969). [Note 16]

We need not consider the defendant's novel assertion that under G. L. c. 278, Section 33E, we have the power to direct the entry of a verdict of guilt for a crime not charged by indictment and not submitted to a jury. We have reviewed the entire case on the law and the evidence and we find no reason to reduce the verdict to a lesser degree of guilt. [Note 17]

Judgment affirmed.