Commonwealth v. Diaz

1 Mass. L. Rptr. 533
CourtMassachusetts Superior Court
DecidedDecember 30, 1993
DocketNo. CR 23285
StatusPublished

This text of 1 Mass. L. Rptr. 533 (Commonwealth v. Diaz) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Diaz, 1 Mass. L. Rptr. 533 (Mass. Ct. App. 1993).

Opinion

Cowin, J.

The defendant, Cesar A. Diaz, is charged in three indictments with armed robbery (G.L.c. 265, §17); assault and battery by means of a dangerous weapon (G.L.c. 265, §15A); and larceny of a motor vehicle (G.L.c. 266, §28).

The defendant has filed a motion to suppress as evidence against him an identification made by the victim. The defendant argues that the police identification procedure was impermissibly suggestive and, further, that the police’s stop and detention of the defendant was made without any reasonable and articulable suspicion. A hearing was held on Monday, November 15, and Wednesday, November 17, 1993. The victim Jay LeBlanc and Haverhill police officers David Chambers and Dana Burrill testified. After the hearing and evaluation of the evidence, including the credibility of the witnesses, the Court denies the defendant’s motion.

FINDINGS OF FACT

On February 20, 1993, Jay LeBlanc, a taxi driver for Courtesy Cab Company in Haverhill, was sent to 116 White Street at approximately 9 p.m. for a fare to go to a skating rink. As Mr. LeBlanc approached 116 White Street, he saw three Hispanic males and one woman there. The three men got in the cab, two in the back seat and one in the front passenger seat. The front passenger said that the group wanted to go to Skateland. During the seconds that the man in the front seat was speaking, Mr. LeBlanc was looking at his face. The light inside the cab was on at that time, as Mr. LeBlanc had turned it on to write down the destination of his fares. Light also emanated from stores in the area and from street lights.

[534]*534Mr. LeBlanc turned the cab around to drive to Skateland. As he did so, he had another opportunity to see the face of the front seat passenger. As the taxi went from White Street to Emerson Street, Mr. LeBlanc turned and looked at the face of the front passenger again. Mr. LeBlanc saw that the man was starting to put on a hood. His face could still be seen despite the hood as it did not cover his face.

As Mr. LeBlanc drove down Emerson Street, the man sitting directly behind him placed a sharp object to his throat. The man in the front passenger seat said: “Give me all your money.” This same man also directed Mr. LeBlanc to take a right, and Mr. LeBlanc did so. The man in the front seat then put his hands into Mr. LeBlanc’s pocket and took his money. The man behind Mr. LeBlanc continued to hold the sharp object to the taxi driver’s throat. The man in the front seat disconnected the radio in the cab. While he did this, Mr. LeBlanc again looked at him face-to-face.

At one point on Washington Street, Mr. LeBlanc pulled his taxi to the right side of the street and was asked by the passengers if he had a wallet. He said “No.” Mr. LeBlanc was then directed to take a right. He did that. The passengers instructed Mr. LeBlanc to make further turns. Eventually they arrived at Duncan Street, a dark area with buildings on both sides.

The passenger in the front seat directed Mr. LeBlanc into a parking lot on Duncan Street. This man told Mr. LeBlanc: “Get the fuck out of the car.” Mr. LeBlanc did so. The front seat passenger then slid over to the driver’s seat and drove off in Mr. LeBlanc’s cab.

Mr. LeBlanc was in the taxicab with the three men for approximately ten minutes. Throughout that time the man in the front passenger seat was speaking to Mr. LeBlanc.

The man in the front seat was described at the hearing by Mr. LeBlanc as 5’8” to 5T0” tall, average weight (a thin-to-medium build), one hundred and forty to one hundred and fifty pounds. His skin was tannish, light, “not real black, not real white.” His hair was blackish, darkish hair, wavy or Afro. He wore a red Chicago Bulls parka.

After Mr. LeBlanc left the taxicab, he went to a nearby Store 24 on Duncan Street to telephone his cab company. That walk took approximately five minutes. Mr. LeBlanc notified his company by phone that he had been robbed and then walked (for approximately three minutes) to the company building.

At the cab company, Mr. LeBlanc was immediately met by a police officer, Officer Chambers. Mr. LeBlanc told Officer Chambers what had occurred and the locations involved in the incident. Officer Chambers transported Mr. LeBlanc to Lafayette Square. There, three men were lined up with a police officer standing beside them. Mr. LeBlanc observed the three men. He was asked by the police if any of these men were the men who had robbed him and he said: “No.”

Mr. LeBlanc then left Officer Chambers to go in another police car with Detective Burrill and another Haverhill police officer. For ten to fifteen minutes, Detective Burrill drove Mr. LeBlanc around an area of Haverhill where Detective Burrill believed that they would pass a number of Hispanic males. Mr. LeBlanc was told that if he saw any of the perpetrators he should notify the police of that fact. They passed about one hundred people on the street. Of the one hundred, approximately thirty to forty were Hispanic males. Each time the police car drove by a group of Hispanic males congregated at a street corner, the detective would either drive slowly or stop or almost stop the car in order for Mr. LeBlanc to look at the pedestrians. As they drove, the detective had his car’s lights on. The streets were also illuminated by street lights and business lights. Mr. LeBlanc did not identify any of the men whom they passed.

After approximately fifteen minutes, Detective Burrill received a radio message from Officer Chambers instructing him to drive down Emerson Street because there was someone to view at that location. One of the officers told Mr. LeBlanc that they had a man on Emerson Street whom they wanted him to see.

At that point, Detective Burrill drove Mr. LeBlanc down Emerson Street. This was approximately thirty minutes after the robbery had occurred. Mr. LeBlanc saw an individual on Emerson Street who was between the headlights of two cruisers. Mr. LeBlanc observed that this person had the same build, skin color and “the same-looking face” as that of the person who had been in his right front passenger seat. Mr. LeBlanc said that the individual on the street looked like the man in the front passenger seat, that he was pretty certain that was the man, but was not positive. He wanted to get out of the car and hear the man’s voice to be completely certain. The man on the street was wearing a jacket but it was not the red Chicago Bulls ski parka that had been worn by the man in the front seat. Mr. LeBlanc was concentrating on the face, however, rather than the clothing.

The police car pulled over. Detective Burrill got out and then permitted Mr. LeBlanc to get out. Mr. LeBlanc walked to about three feet of the individual being detained by the police on Emerson Street. The lighting was very good because the lights of the two cruisers, as well as the street lights at the corner of Emerson Street, shone on the individual.

One of the police asked the individual an inconsequential question. As soon as the individual began talking, Mr. LeBlanc recognized his voice and, “it clicked altogether.” Mr. LeBlanc was absolutely positive at that point that this was the man who had been in the front passenger seat and he indicated the same to Detective Burrill. The man whom Mr. LeBlanc had identified is the defendant Cesar Diaz.

In regard to the defendant’s contention that he was stopped and detained by the police without reasonable [535]

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Bluebook (online)
1 Mass. L. Rptr. 533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-diaz-masssuperct-1993.