Opinion
Nos. 9677 CR 505-516, 9577 CR 517-527 and 9577 CR 95-552
November 27, 1996
FINDINGS OF FACT, RULINGS OF LAW AND ORDER ON DEFENDANTS' MOTION TO SUPPRESS IDENTIFICATIONS AND STATEMENTS
Background
In this criminal action, each defendant is charged on two indictments alleging breaking and entering a building in the daytime with the intent to commit a felony; two indictments alleging malicious destruction of property valued at more than $250; two indictments alleging larceny of property valued at more than $250; two indictments alleging larceny in a building; three indictments alleging receiving stolen property valued at more than $250; and a single indictment alleging unlawful possession of a shotgun. The charges arise out of a pair of housebreaks which occurred in Salisbury on June 23, 1995, and the recovery of property stolen during those breaks. Each defendant has moved to suppress identifications of him which were made by witnesses who allegedly saw him departing the area where the stolen property was found. In addition, defendant Fitzgerald has moved to suppress statements which were allegedly made by him while in custody at the Salisbury Police Station.
Defendant Fitzgerald did not file his own motions to suppress as such. Rather, he filed a motion to join in the motions filed by defendant Doty and a third defendant who is no longer part of the case.
The Court held a hearing on the motions on September 19, 1996, and November 12, 1996 — November 13, 1996. The following constitute the Court's findings of fact, rulings of law and orders on the motions.
Findings of Fact At approximately 8:00 p.m. on June 23, 1995, Stephen Girard, who was then approximately sixteen years-old and resided at 25 Washington Street, in Salisbury, was conversing with a neighbor across the street from his home. As he did so, he observed two individuals walking through woods behind the neighbor's house. The individuals appeared to be carrying a blue bag. Stephen noticed that one was wearing a white shirt; the other was wearing a "sea-green" shirt.
Believing the men to be suspicious, Stephen walked over to his house, entered, and told his parents what he had seen. Accompanied by his mother, Paula Girard, he then returned to his neighbor, who was at that time talking with a stranger whom Stephen believed to be one of the men from the woods. At the hearing on the motion to suppress, Stephen described the stranger as a white male, approximately six feet tall, having a medium build, black hair and a mustache, and wearing a white shirt. He had slurred speech and an uncoordinated gait. Stephen opined that the man was drunk. Mrs. Girard described the man as being 5'9" in height, having brownish hair and wearing work boots.
The stranger asked Stephen and the neighbor for a ride. When they declined, he walked away, stating, "Bye, Buddy." Shortly thereafter, a second stranger appeared from behind the neighbor's garage.
At the motion hearing, Stephen described the second man as being white, approximately 5'5" or 5'6" tall, having brown hair, and wearing a "sea-green" shirt. He appeared "wide-eyed" or worried. Mrs. Girard described the man a being 5'6" or 5'7" tall, having long light brown hair, and wearing a shirt, shorts and work boots.
The second man asked Stephen if he was aware of a place where he could use the bathroom. Stephen told the man that he should go in the woods. The man replied that a barking dog prevented that. He then asked where else he might go. Stephen and his neighbor suggested that the man try the "Dunes Motel," a short distance away, and the man headed in the direction of the motel. Stephen noticed that the second man had slightly slurred speech, smelled of alcohol, exaggerated his movements and stumbled as he walked. Based on his observations, Stephen opined that the second man was drunk as well.
After the second man departed, Stephen walked into the woods and came upon a blue bag containing a shotgun and other items. He so informed his mother, who, in turn, called the police. Within a matter of minutes, Salisbury Police Officers Richard Simmons and Robert Roy arrived. Stephen told them what had happened and described the strangers whom he had observed as being a tall male with "lots of tattoos" and a second male wearing shorts and a sea-green shirt. Officer Simmons walked into the woods and confirmed the discovery of the shotgun. Officer Roy set out in search of the two strangers.
Officer Roy had only traveled a few hundred feet on a motorcycle, at which point he observed three men, later identified as the two defendants and their co-defendant, Gerald Gitschier. Defendant Fitzgerald was wearing no shirt. Tattoos were visible on his body. He was holding a beer can. Defendant Doty was wearing a green shirt and carrying a cooler. Gitschier was wearing a white shirt. All three men showed evidence of intoxication, in that their speech was slurred, their eyes were glassy and they were unsteady on their feet. Officer Roy next observed Fitzgerald hand something to Gitschier, and all three men began to converse with each other. Officer Roy joined the conversation and discussed matters unrelated to the discovery of the shotgun. At some point, he radioed to Officer Simmons, "Come up to the Dunes. I have somebody up here."
Officer Simmons responded promptly, followed by Stephen, his mother and other civilians, all of whom had overheard the radio transmission. When he arrived at the location of Officer Roy, Officer Simmons exited his cruiser and approached the men. Observing their intoxicated state, he determined that, at a minimum, he would place them in protective custody. He advised the three men collectively of their Miranda rights. So far as appears, the men said nothing incriminating at that time.
Officer Simmons then turned to Stephen and his mother and asked them if they recognized any of the men. At the time, the three strangers were lined up facing the civilians. Fitzgerald and Doty were at either end. Gitschier was in the middle. His pockets were turned inside out and jewelry was hanging from them. The officers stood alongside Fitzgerald and Doty, respectively. First, Stephen and, then, his mother each identified Fitzgerald and Doty as the men whom they had encountered at their neighbor's house. In making his identification, Stephen relied primarily on the faces of the men. Mrs. Girard had recognized Fitzgerald and Doty before Stephen said anything. Her recognition was based upon their facial features and clothing. The Court finds that her identification of the men was not influenced by hearing the identification made by her son.
Soon after the identifications were made, another neighbor approached the officers and informed them that he had just discovered that his house had been broken into and that a gun and jewelry were missing. Officer Simmons opened his cruiser and displayed to the neighbor items which had been removed from the woods, including the shotgun and a police scanner. The neighbor identified the items as items which had been stolen in the break-in. At that point, all three of the men were placed under arrest, handcuffed and searched. During the search, items of jewelry were recovered from Gitschier, and the neighbor also identified those items as his.
The defendants and Gitschier were transported to the Salisbury Police Station, where they were booked. During the booking, they answered biographical questions without apparent difficulty. Although intoxicated, they appeared to be "not falling down drunk," in the words of Officer Simmons. When advised of the charges against him, Fitzgerald became agitated and blamed Gitschier for the crimes. At another point, Fitzgerald was taking his boots off at the direction an officer, when a piece of jewelry rolled out of one of them. Gesturing towards Gitschier, Fitzgerald said to the officer, "That's not mine. It's his." Eventually all three men were placed in cells.
There was no testimony concerning the specific words which he spoke in that regard.
Rulings of Law
The Identifications
The defendants contend that the procedures by which Stephen Girard and Paula Girard made their identifications were unlawful and that, therefore, the identifications must be suppressed.
In Commonwealth v. Botelho, 369 Mass. 860, 866-868 (1976), the Supreme Judicial Court articulated the test which a trial court should employ when reviewing a motion to suppress identification, as follows:
When it appears that the prosecution intends to use an eyewitness of the crime to identify the defendant at trial, the defendant may show at a suppression hearing that the witness was subjected by the State to a confrontation that was unnecessarily suggestive and thus offensive to due process. If this is established, then the prosecution is barred from putting the particular confrontation in evidence at the trial — there is a "per se" exclusion. Further, the prosecution is limited to introducing at trial only such identifications by the witness as are shown at the suppression hearing not to be the product of the suggestive confrontation — the later identifications, to be usable, must have an independent source.
* * *
In deciding whether a particular confrontation was unnecessarily suggestive, the judge is to consider "the totality of the circumstances surrounding it." This has been understood to refer to the episode itself; it does not extend to a consideration of the witness's entire connection with the case to determine whether the confrontation, although set up in such a way as to be unnecessarily suggestive, was nevertheless reliable, and therefore usable — for example, because the witness had a clear perception of the offender and would not be misled by a one-on-one confrontation or the like.
Finally, as to burdens, it is for the defendant to establish, apparently by a preponderance, that a given confrontation was unnecessarily suggestive. If the defendant sustains his burden, then should the prosecution desire to offer identification testimony, it must assume the burden of establishing by "clear and convincing evidence" that the proffered identification has a source independent of the suggestive confrontation.
(Citations and footnotes omitted.)
See also Commonwealth v. Johnson, 420 Mass. 458 (1995) (Reaffirming vitality of Botelho.)
"Show-ups" of the kind conducted in this case arguably do contain elements of suggestiveness. However, when they are conducted in the immediate aftermath of a crime, they are generally permissible so long as they involve no unique elements of suggestiveness beyond those inherent in the very nature of a show-up itself. See, e.g., Commonwealth v. Barnett, 371 Mass. 87, 91-94 (1976).
In the present case, no unique elements of suggestiveness were present. The only factor which the Court finds slightly problematic is the fact that Mrs. Girard made her identifications known to the police officers after being able to hear her son identify the same two individuals as she did. However, the Appellate Courts of the Commonwealth have ruled that the fact that an identification has occurred in such circumstances does not, in and of itself, vitiate the validity of the identification. See, e.g., Commonwealth v. Moynihan, 376 Mass. 468, 475-477 (1978); Commonwealth v. Anderson, 19 Mass. App. Ct. 968, 969 (1985). Moreover, in the present case, Mrs. Girard expressly testified that she recognized the defendants as soon as she saw them, based upon their dress and appearance, and before her son had verbalized his own identifications. That being so, and given the brief span of time between her initial encounter with the defendants and the show-up, the Court finds no unnecessary suggestiveness in the identification procedure. See Moynihan, supra at 476-477. (Proximity between confrontation and initial observations of perpetrator, as well as extent of opportunity to observe perpetrator during initial encounter, are factors bearing on issues of unnecessary suggestiveness.)
Fitzgerald's Statement
Defendant Fitzgerald seeks suppression of the statements which he made at the police station and by which he sought to deflect the blame for the alleged crimes onto Gitschier. Although Fitzgerald was in custody at the time, neither statement was made in response to anything that could be characterized as an "interrogation." In one instance, Fitzgerald spoke out in response to the mere reading of the charges to him during booking. In the second instance, he was reacting to the fact that apparently stolen jewelry had fallen out of his boots. There having been no interrogation, the principles of Miranda v. Arizona, 384 U.S. 436 (1964) are not implicated. See generally Rhode Island v. Innis, 446, U.S. 291 (1980) (Miranda rule applies only to custodial interrogations.)
In any event, the Court finds as a fact that Fitzgerald was advised of his Miranda rights, understood them, and knowingly, voluntarily and intelligently waived them.
Of course the burden remains on the Commonwealth to prove beyond a reasonable doubt that the statements were voluntary in nature, i.e., that they were the product of a free and rational intellect. See, e.g. Commonwealth v. Tavares, 385 Mass. 140, 145, 152 (1982). Fitzgerald points to his intoxication as a factor negating the voluntariness of his statements.
The Supreme Judicial Court has ruled that, under certain circumstances, intoxication may render a suspect's statements to the police involuntary. See, e.g., Commonwealth v. Wapler, 369 Mass. 121, 124 (1975). However, "An otherwise voluntary act is not necessarily rendered involuntary simply because an individual has been drinking or using drugs." Commonwealth v. Shipps, 399 Mass. 820, 826 (1987). See, e.g., Commonwealth v. Lanoue, 392 Mass. 583, 584-589 (1984) (Statements held admissible although made by defendant who "had been drinking," whose "speech was slightly slurred" and whose "eyes were glassy"); Commonwealth v. McCauley, 391 Mass. 697, 700-702 (1984) (Statements held admissible although defendant had testified that from time of crime to time of arrest, "he had not slept and had ingested at various times amounts of alcohol, heroin; valium, cocaine and methadone"); Commonwealth v. Doucette, 391 Mass. 443, 447-450 (1984) (Statement held admissible although evidence suggested "that the defendant may have been drinking or may have taken drugs prior to giving statement); Commonwealth v. Griffin, 19 Mass. App. Ct. 174, 181-184 (1985) (Statement held admissible although made when defendant was "'under the influence of intoxicating liquor' and had cuts on his lip and chin" as result of motor vehicle accident). See also Commonwealth v. Paszko, 391 Mass. 164, 172-178 (1984) (Statement made while defendant undergoing drug withdrawal held admissible).
Here, although intoxicated, defendant Fitzgerald was, as the officers testified, "not falling down drunk." Indeed, he was responsive to booking questions, and, most notably, on two occasions he had the presence of mind to attempt to exculpate himself at the expense of Gitschier. Such attempts at exculpation counsel in favor of the conclusion that Fitzgerald knew precisely what he was doing when he made the challenged statements. See Commonwealth v. Vazquez, 387 Mass. 96, 100 (1982). Thus, the Court concludes beyond a reasonable doubt that the statements were voluntary.
It is also fair to infer that when the police initially approached him, he handed off the incriminating evidence, i.e. stolen jewelry, to Gitchier.
ORDER
For the reasons stated above, the Court ORDERS that both of the motions to suppress the identifications and defendant Fitzgerald's motion to suppress statements be DENIED.
By the Court,
________________________________ Howard J. Whitehead Justice of the Superior Court
Dated: _____, 19__