Commonwealth v. McLaughlin

83 Mass.App.Ct. 1121

984 N.E.2d 891

COMMONWEALTH

v. Martin McLAUGHLIN(and four companion cases ¹).

No. 10–P–1656.

Appeals Court of Massachusetts.

March 26, 2013.

OPINION TEXT STARTS HEREBy the Court (KAFKER, COHEN & TRAINOR, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

We consider the appeals of Martin McLaughlin, Charles Demos, and Joseph Field, from their convictions of armed robbery and, in the case of McLaughlin, the additional crimes of illegal possession of a firearm and illegal possession of ammunition. The convictions arose out of an early morning incident on Salem Street in Malden, on April 19, 2008, during which a group of young men assaulted the victim, Emmanuel Luma, with a handgun and a knife, and took items from his pockets.² We affirm.

1. Demos's appeal. a. Denial of motion to dismiss indictment. Demos filed a motion to dismiss claiming (1) there was insufficient evidence to establish identity and probable cause to arrest, see Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), and (2) the integrity of the grand jury was impaired by the failure of the prosecutor to disclose a statement made by Luma that, at a showup conducted in the aftermath of the incident, he had identified the suspects “due to their clothing and physical description (size, weight)”. See Commonwealth v. O'Dell, 392 Mass. 445, 449–451 (1984). Neither claim has merit.

Taken in the light most favorable to the Commonwealth, see Commonwealth v. Caracciola, 409 Mass. 648, 649 n. 1 (1991), the evidence before the grand jury established that Demos was seen by the police shortly after the robbery in the company of McLaughlin and Field, both of whom possessed items connecting them to the crime. The men were walking together at about 3:00 A.M., on an otherwise deserted street, which was in close proximity to where the robbery took place. Demos's physical stature matched Luma's initial description of one of his assailants, and, when the three men were displayed to Luma at a showup, he positively identified them as among the group that had assaulted him. On the basis of this evidence, probable cause and identity were established.

As for Luma's statement regarding his identification of the suspects, it was more inculpatory than what was presented to the grand jury. Accordingly, “if laid before the grand jury, [it] would almost certainly have left unaltered the disposition to indict .” Commonwealth v. Biasiucci, 60 Mass.App.Ct. 734, 738 (2004).

b. Denial of motion to suppress. Demos moved to suppress the results of the showup identification, claiming that he had been unlawfully stopped and detained and that the showup was unnecessarily suggestive. Applying familiar standards,³ we discern no error in the motion judge's denial of the motion.

The relevant facts may be summarized as follows.⁴ Shortly after the robbery, at around 3:00 A. M., Luma told Sergeant John Crannell that a group of four to five men had confronted him, that one of the men held a large black gun and another a knife, and that some in the group had worn hooded sweatshirts (one of which was gray), and bandanas (one of which was white). Crannell broadcast Luma's description of the robbers to other Malden officers. Officer Lawrence McGahey heard the broadcast and, after speaking with Crannell, drove along Salem Street, which was believed to be the possible path of flight. As he drove, McGahey observed little vehicular and no pedestrian traffic until he came to the intersection with Laurel Street, where he saw three young males on foot. The three were wearing hooded sweatshirts, one of which was gray.

McGahey pulled his marked cruiser up to the group and asked them to stop. They turned and looked at him, at which point, one of the men, who was wearing a hooded sweatshirt and a white bandana (and who later was identified as McLaughlin), said something to the other two and began to walk away. McGahey told him to stop, but he continued walking away and, when McGahey started to follow him, began to run. The other two men (later identified as Field and Demos) then began to walk away in the opposite direction. As he chased McLaughlin, McGahey used his radio to alert fellow officers about the other two men. After a struggle in which McGahey pulled a handgun from McLaughlin's waistband, McGahey was able to subdue him. Other officers found Field and Demos and brought them to where McGahey was detaining McLaughlin, ten to fifteen yards from where McGahey first had seen the men.

The officers radioed Crannell, who had remained with Luma, to inform him that they had detained three suspects. Crannell asked Luma if he might be able to identify the persons who had robbed him, and Luma said that he might. Crannell then went over the department's identification procedures check-list with Luma. The check-list included advisements that the perpetrators might not be among those presented, and that he should not feel compelled to identify someone shown to him.

Luma was brought to the area where the three suspects were standing. A number of police officers were close by; however, none of the men was presented in any physical restraint.⁵ Luma viewed the suspects from the rear seat of the cruiser. The suspects were displayed in the same area, about two car lengths or twenty-five to thirty feet apart from each other. The distance between the officers and the suspects was approximately two feet, and the lighting was good. Luma identified the three suspects as being among the group that had robbed him.⁶

The motion judge properly ruled that the police had reasonable suspicion to believe that the three men, including Demos, had been involved in the robbery. They were spotted by McGahey shortly after the robbery took place (at about 3:00 A.M.), they fit the general description given by Luma of his assailants, and they were walking together on an empty street a short distance from the crime scene.⁷

After the three were apprehended, it was not unreasonable for the police to detain and transport all of them, including Demos, to the site of the showup, as a reasonable extension of the investigatory stop. See Commonwealth v. Dargon, 457 Mass. 387, 404 (2010); Commmonwealth v. Hill, 64 Mass.App.Ct. 131, 134 (2005). Where the crime had occurred minutes earlier, and the procedure allowed the victim to see the suspects immediately after the robbery, there was good reason to conduct the showup. See, e.g., Commonwealth v. Santos, 402 Mass. 775, 783–784 (1988).

There was nothing inherently improper about the defendants being displayed together. See Commonwealth v. Lifsey, 2 Mass.App.Ct. 835, 835 (1974); Commonwealth v. Rogers, 38 Mass.App.Ct. 395, 402–404 (1995). None of the men was in restraints, and Luma viewed them in good lighting. Luma received cautionary advisements from Officer Crannell, in accordance with department procedures. In these circumstances, the motion judge was warranted in concluding that Demos had failed to show by a preponderance of the evidence that the defendant was subjected to a showup that was so unnecessarily suggestive as to be conducive to a mistaken identification.

c. Admission of hearsay. Demos argues that Crannell should not have been permitted to testify about certain statements made by Luma, because they were inadmissible hearsay.⁸ To the extent that Demos challenges statements of identification made by Luma at the showup, the statements were admissible for both corroborative and probative purposes. Commonwealth v. Martinez, 431 Mass. 168, 176 & n. 7 (2000). To the extent that Demos challenges the descriptions of the suspects given by Luma to Crannell,⁹ the judge properly admitted this evidence, with appropriate limiting instruction, ¹⁰ as relevant to show the state of police knowledge that drew their attention to the defendants. See Commonwealth v. Rosario, 430 Mass. 505, 508–509 (1999); Commonwealth v. Gaynor, 443 Mass. 245, 270 (2005).¹¹

d. Sufficiency of the evidence. Taken in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979), there was sufficient evidence for the jury to find that Demos was one of the perpetrators. Luma testified that of the individuals who were involved in the robbery, one was “a little heavier,” a description that fit Demos. Shortly after the robbery, McGahey saw McLaughlin, Field, and Demos walking together in the same deserted area. When McGahey approached them, McLaughlin said something, and then Demos (along with Field) walked away. McGahey, who was present at the showup, testified that the two men he initially saw with McLaughlin were brought back by other officers for the showup. At that showup, Luma identified the three suspects as among those who had robbed him.

At a minimum, the evidence sufficed to establish Demos's culpability as a joint venturer. It was established that four to five men surrounded Luma, McLaughlin pointed a gun at him, another man clicked open a knife, and two men rummaged through his pockets and took items later recovered from McLaughlin and Field. From these facts, it fairly could be inferred that regardless of which individual took particular actions, all those who surrounded Luma knowingly participated in the armed robbery, with the intent required to commit the crime. See Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009); Commonwealth v. Jansen, 459 Mass. 21, 28 n. 20 (2011).

2. Field's appeal. a. Admission of hearsay. As Field's argument mirrors that of Demos, it fails for the reasons stated above.

b. Sufficiency of the evidence. In addition to the evidence discussed above with respect to the sufficiency argument raised by Demos, there was evidence that, at booking, Field was wearing a “gray hoodie,” thus matching a detail of Luma's description of those who robbed him. There also was evidence that Field was found with a purple lighter that matched the description of a lighter taken from Luma during the robbery, and identified by Luma at trial. The jury reasonably could...