Opinion
10-P-1786
03-23-2012
COMMONWEALTH v. DENNIS L. BRONER.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of unarmed robbery, G. L. c. 265, § 19(b), and the denial of his motion for a new trial. The defendant argues that reversal is mandated as a result of newly discovered evidence, the improper introduction of handwriting evidence by the Commonwealth, an impermissibly suggestive show up identification by two witnesses, and ineffective assistance of counsel. For the reasons enunciated below, we affirm.
Background. The jury and motion judge could have found the following facts. A man who was later identified as the defendant robbed a Sovereign Bank branch in Worcester. After approaching the counter, the man told the teller he had a gun and pushed a note across the counter demanding money and stating that he would shoot her where she stood if she did not comply. The robber soon fled with $439.31. Because the teller had tripped a silent alarm, the police arrived shortly after the robbery.
The teller told the responding officers in which direction the bandit had fled. The teller described the defendant as a black male 'about five-six, five-seven, no more than five-eight in height,' approximately 160 to 180 pounds, with a 'shadow of a beard' and 'pepper kind of hair, gray and white.' The teller further described the robber as wearing patched jeans, a do-rag, a hat, sunglasses, a navy blue or black shirt and a denim jacket draped over his shoulder.
A bank customer also described the robber as a black male wearing a denim jacket, a cap, glasses and not clean shaven. The customer estimated the robber to weigh 175 pounds and five feet five or six inches in height, although she also found his height difficult to discern as he was leaning. The customer further described the defendant as having a gun in his pocket and fleeing in the same direction that the teller had given.
Two officers, after hearing the police broadcast, spotted the defendant, who is black, walking on a street two blocks from the bank in the direction that the teller and customer described. He was wearing a gray t-shirt and rolling up a denim jacket and putting it under his arm, but did not have on glasses or a cap. The police stopped the defendant and asked him to put his jacket on the cruiser, which he did. One of the officers removed cash from a pocket in the jacket. The officers hurriedly left the defendant at this point as another broadcast erroneously reported someone else matching the robber's description elsewhere. Soon thereafter the error was discovered, the police relocated the defendant, and detained him.
After the defendant's detention and before he was taken to the police station for booking, police brought the teller to the place of arrest in order for her to identify him. Police told the teller that they had stopped a suspect and asked her to take a ride in order to identify the alleged robber. As they drove past the scene, the policeman driving the teller directed her attention to the detained suspect. At this time the defendant was surrounded by several marked police cruisers and uniformed officers. The defendant, leaning with his hands on the cruiser, was being searched. It required two passes by the scene for the teller to identify the defendant as the robber. On the second pass, she stated that she was 'a hundred percent sure that was him.'
Police also drove the customer by the showup location twice. Her police escort told the customer that the defendant may have changed his appearance. On the first drive by, the customer stated that her degree of certainty was 'like seventy five percent' and on the second pass her certainty increased to 'ninety five percent.' On the second pass, a police officer held up the defendant's jean jacket. The customer testified that she believed the defendant was in handcuffs at the time she identified him, as he was standing with his hands behind his back with a police officer nearby. After these identifications, the defendant was arrested. During the booking process police found $432 in cash on the defendant.
On the morning of the first day of trial, the prosecution informed the court and the defendant that the Commonwealth would seek to introduce a writing by the defendant so that the jury could compare a known sample of the defendant's handwriting with the robbery note. Both the writing and the robbery note were introduced as evidence. No expert testimony on handwriting comparisons was introduced. Rather, in its closing, the Commonwealth pointed out that the letters O and G were similar in the known sample of the defendant's handwriting and the robbery note.
The defendant submitted several pro se handwritten motions prior to trial.
In his motion for a new trial, the defendant attached the affidavit of a handwriting expert which purported to cast doubt on the reliability of the Commonwealth's use of a handwriting comparison. The defendant sought to characterize this affidavit as newly discovered evidence. We reserve the recitation of additional facts for our discussion of the legal issues.
Discussion. Handwriting evidence. The defendant argues that the judge erred in denying him a new trial because the handwriting expert's posttrial analysis of the evidence offered at trial is both newly discovered and casts doubt on his conviction. This argument lacks merit.
Rule 30(b) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 900 (1979), allows a judge to grant a new trial when it appears that justice may not have been done. 'A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction.' Commonwealth v. Grace, 397 Mass. 303, 305 (1986). An appellate court examines 'the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion.' Id. at 307. 'A reviewing court extends special deference to the action of a motion judge who was also the trial judge.' Ibid. Here, the affidavit was no more than an opinion relating to an exhibit introduced at trial. Even leaving aside the fact that the record reveals no request by the defendant for additional time to analyze the handwriting, the affidavit does not constitute 'newly discovered' evidence.
Showup identification. The defendant asserts that the two showup identifications were overly suggestive. In an appeal from a decision on a motion to suppress 'we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of [the] ultimate findings and conclusions of law." Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).
In order to succeed on a motion to suppress an identification as overly suggestive, the 'defendant must show by a preponderance of the evidence that the procedures employed, viewed in the totality of the circumstances, were so unnecessarily suggestive and conducive to mistaken identification as to deny the defendant due process of law.' Commonwealth v. Colon-Cruz, 408 Mass. 533, 541 (1990). 'Whether an identification procedure is 'unnecessarily' or ' impermissibly' suggestive involves inquiry whether good reason exists for the police to use a one-on-one identification procedure, bearing in mind that this court has said that '[e]xigent or special circumstances are not a prerequisite to such confrontations." Commonwealth v. Austin, 421 Mass. 357, 361 (1995), quoting from Commonwealth v. Harris, 395 Mass. 296, 299 (1985) (internal citation omitted). In deciding whether this 'good reason' exists, a court should examine 'the nature of the crime involved and corresponding concerns for public safety; the need for efficient police investigation in the immediate aftermath of a crime; and the usefulness of prompt confirmation of the accuracy of investigatory information, which, if in error, will release the police quickly to follow another track.' Austin, supra at 362.
In the case at bar, the police had good reason to utilize a showup identification. There had just been a bank robbery a few blocks away in which the robber allegedly possessed a gun and threatened to shoot the teller. See Commonwealth v. Coy, 10 Mass. App. Ct. 367, 372 (1980) ('Such meetings are particularly valuable and permitted where the police are working from a description of the criminal provided by the victim immediately after the crime '). The suspect had fled on foot and was possibly at large in public with a weapon. As is illustrated by the erroneous report of another possible suspect, a prompt chance for the witnesses to identify the defendant in these circumstances allows the police to continue the search if a suspect is cleared.
However, our analysis does not end there, as the identification must avoid any 'special elements of unfairness, indicating a desire on the part of the police to 'stack the deck' against the defendant.' Commonwealth v. Leaster, 395 Mass. 96, 103 (1985). Here, as the defendant points out, his hands were placed on a police cruiser, he was surrounded by police, and one of the officers held up his denim jacket as one of the witnesses drove by. However, identifying a suspect surrounded by police is not unduly suggestive as a matter of law. See Commonwealth v. Rogers, 38 Mass. App. Ct. 395, 403-404 (1995) (not error for judge to deny motion to suppress where victim had been driven to scene of defendant's detention shortly after crime and shown each suspect one at a time surrounded by at least four officers). While '[s]ome elements of suggestiveness are inherent in all such confrontations,' this does not necessarily make them overly suggestive. Commonwealth v. Harris, 395 Mass. 296, 299 (1985).
In the instant case, there was evidence that the identifications by the two witnesses were reliable and not based on suggestion by the police. Both witnesses had ample opportunity to observe the defendant at close range in the bank. Both the teller and the customer gave general descriptions of the robber that matched that of the defendant when he was identified at the place of his detention. Finally, the fact that the police stated that they had someone in custody, stated that he may have changed appearance, and lifted up the defendant's jacket for the witness to see are not so suggestive as to deny the defendant due process of law. The police did not tell the witness how the defendant would be dressed, did not suggest that the defendant was the robber, and even told the customer that she should not feel pressured to make an identification. There was no error in denying the motion to suppress the identifications.
Ineffective assistance of counsel. The defendant claims ineffective assistance of counsel regarding his trial attorney's failure to procure a handwriting expert during trial and for failing to present expert testimony on cross-racial identification. We apply the oft cited two pronged test of whether there was 'behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
We do not find that trial counsel's decision not to call a handwriting expert was 'manifestly unreasonable.' Commonwealth v. Glover, 459 Mass. 836, 844 (2011). While it would have been possible to request a recess in order to procure an expert on this issue, this is not what the law requires. The more inculpatory evidence against the defendant was the multiple eyewitness identifications, and counsel's strategy was to highlight holes in these identifications, to point to the lack of fingerprints and DNA, and to mention the handwriting sample only to point out that the Commonwealth presented no handwriting witness.
With regard to the failure to present expert testimony on cross-racial identification, assuming without deciding that this argument rises to the level of appellate review, we find no error. In response to the defendant's request, the trial judge instructed the jury that they could consider whether cross-racial identifications were less reliable. The issue was presented to the jury for their consideration, and the decision not to present an expert on the issue, who would have been subject to a cross-examination emphasizing the witnesses' ample opportunity to observe the defendant closely during the robbery, was a reasonable one. It has been shown neither that trial counsel fell below the standard of an 'ordinary fallible lawyer,' nor that the defendant would have been 'likely deprived . . . of an otherwise available, substantial ground of defence.' Safarian, supra at 96.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Rapoza, C.J., Grainger & Sikora, JJ.),