Opinion
No. 11–P–103.
2013-07-11
COMMONWEALTH v. William D. PITTMAN, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, William D. Pittman, was convicted of mayhem, G.L. c. 265, § 14; armed assault with intent to kill (as a lesser included offense of armed assault with intent to murder, G.L. c. 265, § 18 [ b ] ); and assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A( b ). On appeal, he argues that the trial judge erroneously denied his motion to dismiss for prosecutorial misconduct and his motion to suppress the victim's identification of him from a photographic array. He also argues that the trial judge wrongly admitted into evidence a letter unlawfully intercepted by a private citizen. We affirm.
1. Denial of the motion to dismiss the indictments. The defendant argues that the judge erred in denying his motion to dismiss on the ground that the police engaged in egregious misconduct by contacting his alibi witness at her home, providing her a copy of the perjury statute, and suggesting she would go to jail if she testified for the defendant. It is difficult to comprehend how this conduct could ever be seen as appropriate in the context of a criminal prosecution. See Commonwealth v. Teixeira, 76 Mass.App.Ct. 101, 105 (2010), quoting from Commonwealth v. Cronk, 396 Mass. 194, 199 (1985) (“There is simply no excuse for a police officer approaching any witness or party in a pending criminal matter and engaging in ‘deliberate and intentional’ conduct that has a reasonable possibility of affecting the course of trial proceedings”). The issue in this appeal, however, is whether any such police misconduct caused prejudice to the defendant. See Commonwealth v. Druce, 453 Mass. 686, 696–697 (2009). We begin our analysis without the benefit of the court's findings as to what the police actually did and how it may have affected the targeted witness.
Without the judge's findings, our task is to “analyze[ ] the record to see if the findings implicit in the judge's rulings are supported.” Commonwealth v. Perez, 62 Mass.App.Ct. 912, 912 (2004), quoting from Commonwealth v. Gaulden, 383 Mass. 543, 547 (1981).
The judge denied the motion to dismiss orally and offered to make findings if the defendant so requested. The defendant failed to request findings. Compare Commonwealth v. Teixeira, 76 Mass.App.Ct. at 104 (judge made findings reciting conflicting testimony of defendant and police officer, and did not explicitly reject defendant's testimony, although it appeared that she “rejected it by implication”).
It is undisputed that the police visited the witness and handed her a copy of the perjury statute. Putting aside the threats or intimidation likely inherent in receiving a visit from the police under such circumstances, the essential factual issue before the judge was whether the police told the witness that she could go to jail and that her children could be taken from her if she testified for the defendant. If they did, such statements could impair the defendant's right to present a defense to the charges and, thereby, warrant corrective action by the court. The judge, who had the opportunity to see and hear the witness during her testimony at the motion hearing, implicitly discredited this testimony. “[T]he determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw the witnesses, and not this court.” Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), quoting from Commonwealth v. Moon, 380 Mass. 751, 756 (1980). We accept his determination that these statements were not made and conclude, as a consequence, that the judge was correct in denying the motion to dismiss.
2. Denial of the motion to suppress. The defendant claims that the display of two separate photographic arrays to the victim was impermissibly suggestive and that the motion judge should have suppressed the resulting identification. It appears from the judge's findings that the police showed the victim two arrays, both of which contained the defendant's photograph. Presentation of the second photographic array, consisting of enlarged photographs of each individual, occurred almost six months after the first showing. The defendant does not argue that the judge's findings are clearly erroneous. See Commonwealth v. Yesilciman, 406 Mass. at 743. Nor does he claim that the police said or did anything to suggest his identification as the perpetrator of the crime.
Contrary to the defendant's argument, our law imposes no impediment to the use of two separate photographic arrays. See Commonwealth v. Paszko, 391 Mass. 164, 169–170 (1984), and cases cited. Nor is the showing of enlarged photos suggestive where, as here, all of the photos in the array were of identical size. See Commonwealth v. Jones, 9 Mass.App.Ct. 83, 89 (1980) (no error where nothing in the array “tend[ed] to dramatize the defendant or to single out his ... picture from the others”). We see no error in the judge's denial of the motion to suppress the identification.
3. Admission of the alibi letter. The defendant challenges the trial judge's admission of a letter the defendant sent to his girlfriend from the jail where he was detained pending trial. The jury could have interpreted the letter as a request that the girlfriend provide him an alibi. He argues that the judge erred in admitting the letter because it was illegally intercepted by the private citizen to whom it was mistakenly delivered. We find no merit in this argument.
Because the defendant did not file a motion to suppress the letter, the judge did not hold a hearing to determine the facts underlying the transfer of the letter from the private citizen to the police. Without the benefit of findings establishing police complicity in gaining access to the contents of his letter, the defendant nonetheless claims in this appeal that police removed the letter from the envelope and read it. This conduct, he argues, violated his rights under the Fourth Amendment to the United States Constitution.
The defendant's concession that the private citizen's conduct, lawful or not, cannot be attributed to the police undermines his argument on this point.
The threshold problem for the defendant is wresting the consideration of the merits of his claim from the consequences of having failed to file a motion to suppress. We see no basis for excusing his failure to do so,
and proceed, based on the record before us, to our analysis of his claim that the police interfered with his reasonable expectations of privacy in the content of the letter to his girlfriend. See Commonwealth v. Garcia, 34 Mass.App.Ct. 386, 392–393 (1993) (“[M]ail has long been recognized as deserving of protection under the [Fourth] Amendment to the United States Constitution”). In the absence of findings, we again “analyze[ ] the record to see if the findings implicit in the judge's rulings are supported.” Commonwealth v. Perez, 62 Mass.App.Ct. at 912 (citation omitted).
The trial judge appeared to fault the defendant's counsel for failing to file a motion to suppress, observing that the defendant had been aware of the letter at least four months prior to trial.
By admitting the letter, the judge here implicitly discredited the suggestion of police involvement in revealing the contents of the letter. That determination was warranted. It was not disputed that the post office delivered the letter to the wrong address, the recipient opened it, and thereafter contacted the police. Although it appears that the evidence was in conflict on how the contents of the letter came into the possession of the police, the judge reasonably could have concluded that the recipient opened the letter and discovered the contents before surrendering the letter to the police. Otherwise, her contact with the police over a misdelivered letter would make no sense. Thus, the Commonwealth's use of the letter at trial, even if the private citizen secured it by illegal means, did not implicate the defendant's Fourth Amendment rights.
See Commonwealth v. Rivera, 445 Mass. 119, 124–125 (2005), quoting from Commonwealth v. Leone, 386 Mass. 329, 333 (1982) ( “Evidence discovered and seized by private parties is admissible without regard to the methods used, unless State officials have instigated or participated in the search”). Judgments affirmed. By the Court (Rubin, Fecteau & Hines, JJ.),