Commonwealth v. Bowden

Citations: 399 N.E.2d 482; 379 Mass. 472; 1980 Mass. LEXIS 944

Court: Massachusetts Supreme Judicial Court; January 9, 1980; Massachusetts; State Supreme Court

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Horace Bowden was convicted of first-degree murder and unlawfully carrying a handgun, receiving a life sentence for the murder and a concurrent sentence of 2.5 to 5 years for the firearm charge. He appealed, challenging various pretrial rulings, jury instructions, and evidence admissibility. The case stemmed from the shooting of Frank Colvin on April 23, 1975, in Boston, where a cab driver, Jose Fernandes-Soares, witnessed Bowden shoot the victim. Police initially found the scene secure and later staked out Bowden's residence. After forcibly entering the premises, they discovered Bowden and found bullets in his jacket pocket. A subsequent search of the property revealed a .38 caliber revolver hidden in a tire in the basement. Fernandes-Soares's identification of Bowden was inconsistent throughout the proceedings, but he ultimately identified Bowden at trial. The court later reversed the conviction.

The defendant challenged the trial judge's denial of his pretrial motions to suppress evidence and identification testimony. The judge's findings indicated three searches: a pat-down of the defendant, a search of the basement at 88 Brook Avenue, and a search of the second floor. The judge allowed the admission of evidence from the first two searches, including bullets on the defendant and a .38 caliber revolver in the basement, but suppressed evidence found on the second floor. 

The defendant argued that his arrest was illegal due to lack of probable cause, asserting that all evidence obtained should be suppressed. He also contended that even if probable cause existed, the warrantless search of his apartment exceeded permissible limits following a valid arrest. The judge determined that probable cause was established based on detailed eyewitness testimony and the defendant’s actions upon arriving at Brook Avenue. The police observations, including the defendant matching the description provided and his suspicious behavior in a taxi, supported this determination.

The judge's findings were found to be supported by evidence, and the standard for probable cause was met as defined in prior case law. Although the defendant argued that the Commonwealth did not adequately demonstrate the credibility of the hearsay from the cab driver under the two-pronged test outlined in Commonwealth v. Stevens, the court concluded that the motion to suppress was appropriately denied.

The cab driver involved in the case was classified as an ordinary citizen rather than an informant, as established in Commonwealth v. Martin. He provided information as a witness to a violent crime, which is considered reliable without prior verification of reliability, aligning with precedents that relax reliability requirements for eyewitnesses (United States v. Rueda). The cab driver's information was corroborated by independent sources, satisfying constitutional standards even if it did not meet the Aguilar criteria (Commonwealth v. Stevens; Spinelli v. United States). The arrest was deemed lawful and based on probable cause, allowing the police to conduct a search of the defendant incident to the arrest (Chimel v. California). The search revealed .38 caliber bullets, which the judge ruled could not be suppressed. Officer Martin's search of the cellar, prompted by safety concerns due to the visibility of shell casings and an open door, led to the discovery of a .38 caliber revolver. Despite the defendant's argument that the officers knew no one else was present, the judge found that a security check was reasonably necessary, supporting the lawfulness of the search (Commonwealth v. Walker). 

Additionally, the defendant filed a motion to suppress identification testimony from eyewitness Jose Soares, who had driven the alleged assailant to the crime scene. Soares provided a detailed description of the suspect and the pickup location, and he was brought to the police station for identification after the defendant's arrest.

Mr. Soares was instructed by police to identify the defendant through a window of the detention cell, a process termed a one-on-one confrontation. Although this method is generally disfavored as per Stovall v. Denno, it was deemed permissible in this case because there were no indications of unfairness, aligning with precedents like Commonwealth v. Barnett. The judge ruled correctly in denying a motion related to this identification procedure.

Regarding jury instructions, the defendant raised several errors: (1) the jury was not instructed on alibi per Commonwealth v. McLeod; (2) the judge declined to provide requested instructions on identification testimony; (3) the reasonable doubt standard was questioned; and (4) instructions on the non-existence of evidence were contested. Specifically, the judge informed the jury about the alibi defense, suggesting it should be scrutinized due to its potential for fabrication. This approach echoed issues raised in Commonwealth v. Williams, where similar claims were dismissed due to lack of timely objection. The judge had repeatedly emphasized the burden of proof throughout the instructions, mitigating concerns that the jury might overlook the reasonable doubt standard. Overall, the court found no error in the jury instructions provided.

The judge's reference to the 'defense' of alibi as an attempt to prove inconsistency with the defendant's involvement in the crime was deemed improper; however, this was somewhat alleviated by the judge's repeated emphasis on the Commonwealth's burden of proof. The defendant argued that the judge erred by scrutinizing alibi evidence while neglecting to acknowledge that an alibi could be the sole 'refuge for the innocent.' This concern must be evaluated alongside the potential burden-shifting language to assess whether the alibi instruction was prejudicial. The court noted that while the defendant did not explicitly request the 'refuge of the innocent' language, he did raise concerns about the focus on alibi evidence. In previous cases, such as Williams, the failure to include this language was not addressed due to the defendant's lack of exception at trial, but the court pointed out that the Appeals Court reversed a conviction in Cobb for not complying with guidance from McLeod and Ramey regarding alibi instructions. As the case at bar was tried after these decisions, the judge should have modified the charge, and failing to do so constituted reversible error.

Additionally, regarding jury instructions on identification testimony, the judge's refusal to provide the defendant's requested instruction was found to be inappropriate. The court highlighted that while the judge gave extensive instructions on credibility, he failed to address the possibility of the victim's honest mistake in identifying the defendant, thus neglecting a critical issue. The need for such an instruction was underscored by prior inconsistent statements from the identifying witness. Citing precedents, including Rodriguez and Telfaire, the court concluded that the defendant was entitled to an instruction on mistaken identification given its significance in the case.

The defendant challenged the jury instructions regarding the reasonable doubt standard, specifically criticizing the judge's use of a newspaper delivery example, which he argued trivialized the concept. The judge's intent was to illustrate inference drawing, though he used somewhat confusing language that could mislead regarding the certainty of inferences as opposed to the prosecution's burden of proof. However, the later instructions on reasonable doubt correctly emphasized the prosecution's burden and aligned with established precedent.

Additionally, the judge instructed the jury not to consider the nonexistence of certain scientific tests when making their judgment, a point contested by the defendant. The defense had aimed to highlight the absence of such tests to question the integrity of the police investigation. The judge criticized the defense's approach during a bench conference, indicating that lack of evidence could not be construed as proof of nonexistence due to the absence of scientific tests.

The court concluded that the judge's instructions constituted an error requiring reversal. The failure to conduct tests or produce evidence could legitimately contribute to reasonable doubt regarding the defendant's guilt, and the judge improperly restricted the jury's ability to consider this evidence. As a result, the court reversed the judgments, set aside the verdicts, and remanded the case for further proceedings. The court also noted that claims of evidentiary rulings would not be addressed since a new trial was mandated due to the errors in jury instructions.

The defendant contends that evidence at the motion to suppress hearing did not establish that the cab driver witnessed the shooting, although such evidence was later presented at trial. However, testimony indicated that the cab driver was present at the scene and provided a detailed description of the assailant to law enforcement shortly after the incident, which led the judge to infer that the cab driver had indeed witnessed the shooting. Questions arose regarding the state of Mr. Soares’ awareness during identification procedures, but the critical issue was the police confrontation method rather than Soares' identification of the defendant.

Additionally, the requested jury instruction emphasized the defendant's alibi, stating that if there is reasonable doubt regarding his presence at the crime scene, he must be acquitted. It also noted that defendants are not obligated to call witnesses or provide evidence. The Commonwealth’s case relied primarily on Mr. Soares' testimony, which must be deemed reliable and certain to avoid reasonable doubt; identification testimony is inherently uncertain and should be scrutinized.

Concerns were raised about the requested instruction suggesting that Soares’ testimony was the only direct evidence, as other circumstantial evidence (e.g., gun, bullets, jacket) also contributed to the case. The instruction's implication that disbelief in Soares’ testimony necessitates a not guilty verdict is misleading, as the jury might still find guilt based on other evidence.

Legal precedents from various circuits, including cases such as United States v. Kavanagh and United States v. Barber, highlight the importance of providing clear identification instructions to juries, especially in instances where misidentification is a risk. Several circuits have expressed the necessity of these special instructions, while allowing district courts discretion in their formulation.

In United States v. Dodge, 538 F.2d 770 (8th Cir. 1976), and several other cases, various circuit courts have addressed the issue of particularized identification charges, with the Tenth Circuit notably declining to endorse such charges in McGee v. United States, 402 F.2d 434 (10th Cir. 1968). The judge instructed the jury regarding the evaluation of evidence, emphasizing that the absence of certain types of evidence, such as fingerprints, should not influence their decision. He reiterated that the Commonwealth bears the burden of proving the defendant's guilt beyond a reasonable doubt, and the jury should only consider the evidence presented, not any lack of evidence. The judge clarified that the case's outcome hinges solely on the evidence before them, instructing jurors to base their judgment on what is actually presented rather than on what is absent.