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Blue Jeans (1975)

seen together in a car with two other young men about a quarter of a mile from the Burlington McDonald's. One of the two other young men was Steven Archer. During the incident at McDonald's, the robbers wore masks, one red and one blue. It was assumed by both the prosecution and the defense that Anderson was the one wearing the blue mask. The key issue at trial was the identity of the robber wearing the red mask. The defendant attempted to suggest it was not he, but Archer. As part of their investigation on the night of the robbery, the police spoke with both Archer and the fourth individual seen in the car with the defendant and Anderson earlier in the evening. Archer was wearing tan pants and work boots at the time he was questioned. Putting aside the question of clothing, both Archer and the defendant fit the witnesses' general descriptions of the individual wearing the red mask.

Blue Jeans (1975)

A Burlington police officer arrived promptly at the scene of the robbery. He and Abdullah Yusuf, a McDonald's employee who was present during the robbery, began searching the parking lots, embankments, and marsh behind McDonald's and other neighboring businesses in the area towards which Yusuf believed the robbers had fled. Yusuf and the officer spotted Anderson running, chased him on foot, and found him, along with a McDonald's bag filled with money and a knotted blue tee shirt, later identified as the blue mask worn by one of the robbers.

side of the fence behind the liquor store yard. When ordered to "freeze," the defendant dove into the pond. He remained there for five or ten minutes. He was arrested after swimming to the opposite shore. At the time of his arrest the defendant was wearing blue jeans, a white sleeveless tee shirt, and work boots. Early the next day, while searching the area, a police officer found a red bandana at the water's edge, about five feet from where the defendant had been seen. The bandana was later identified as the mask worn by one of the robbers. Also found in the marshy area behind McDonald's were a BB rifle, footprints leading towards the liquor store, and a jacket.

None of the witnesses was able to make an in-court identification of the defendant as the man with the red mask. In this context, the question of the clothing he wore during the robbery assumed importance. Yusuf was the fifth witness called by the Commonwealth. Asked to describe that clothing, the witness stated that the robber was wearing blue jeans, work boots, and a jacket, which was zipped up. [Note 1] As the defendant was wearing blue jeans and work boots when he was arrested and a jacket was found near where he was hiding, Yusuf's testimony tended to implicate the defendant. Two other McDonald's employees who were witnesses, however,

Sergeant Walter Bevis was the tenth witness called by the Commonwealth. The defendant raised an objection by a motion in limine to Sergeant Bevis's proposed testimony, offered by the Commonwealth to corroborate Yusuf's in-court description. The judge was informed by defense counsel that Sergeant Bevis's testimony about Yusuf's description of the clothing worn by the robber on the night of the robbery would include reference to a white shirt. As the defendant was wearing a sleeveless white tee shirt when he was arrested, Sergeant Bevis's testimony tended to reinforce the credibility of Yusuf's testimony that the man in the red mask wore blue jeans, not tan pants. The judge denied the defendant's motion in limine, stating that it was inconsequential that "the details of the assertively corroborating testimony do not match with perfect congruence the testimony given by the witness . . . ." Sergeant Bevis proceeded to tell the jury

There are limitations to the hearsay exception, however. "Where . . . the extrajudicial identification is established not by the identifying witness but by a person who observed the identification, . . . [the] probative worth is outweighed by `the hazard of error or falsity in the reporting.' McCormick, The Turncoat Witness: Previous Statements as Substantive Evidence, 25 Tex L. Rev. 573, 588 (1947). Where there is a dispute not only as to the accuracy of a pretrial identification, but also as to whether the identification was in fact made, `the evidential value of the prior identification is almost completely dissipated.' Commonwealth v. Swenson, 368 Mass. 268, 273 n.3 (1975)." Commonwealth v. Daye, 393 Mass. at 61.

Contrary to the Commonwealth's argument on appeal, it is not an answer that Yusuf was available for cross-examination by the defendant. Contrast Fed.R.Evid. 801(d)(1)(C) (1975). Defense counsel was not required "to put [her] client's head in the lion's mouth" by questioning Yusuf about a description he might have given to the police. Commonwealth v. Seminara, 20 Mass. App. Ct. at 796.

(b) Was the error harmless? It is undisputed that the defendant was wearing blue jeans, a white sleeveless tee shirt, and work boots when he was arrested. In his direct testimony Yusuf described what he remembered the man in the red mask to have been wearing: blue jeans, work boots, and a jacket. As a result of the erroneous ruling, the jurors were informed that, soon after the robbery, Yusuf included reference to a white shirt in his description of the clothing worn by the man with the red mask, and, thus, his description matched the clothing the defendant was wearing soon after the robbery. The reference to the white shirt, therefore, had a tendency to strengthen Yusuf's trial testimony that the man was wearing blue jeans. The question of the pants color had significance because two other witnesses to the robbery thought that the man was wearing tan pants. Archer, who

We think the error was harmless, although we acknowledge that the issue, in the circumstances, is a close one. The one mention of the white shirt was not repeated during the course of the trial. Other than mentioning the color, Yusuf was not said to have described the shirt in any way, and white shirts are very common. The prosecutor did not mention Yusuf's statement about the white shirt in his closing argument, and it was not mentioned in the judge's instructions. The prosecutor may actually have undercut the force of the reference to the white shirt by arguing that the defendant must have shed his jacket after the robbery so that the witnesses would not be able to recognize his clothing. Based on the entire record of the trial, we think the effect of the brief reference to the white shirt on the credibility of Yusuf's testimony that the man in the red mask was wearing blue jeans, not tan pants, was negligible.

The defendant was vigorously and competently represented by counsel, and in all respects other than the admission of the hearsay the trial was conducted fairly. Moreover, the evidence of the defendant's guilt was very strong. It was established that he was friendly with Anderson (the man in the blue mask), that they were together earlier in the evening a quarter of a mile from McDonald's, and that he fit the general description given by the witness. Although those facts apply equally to Archer, no one placed Archer in the vicinity of the McDonald's restaurant after the robbery. That none of the eyewitnesses ever identified the defendant is not surprising because the robber wore a mask. The circumstantial evidence of the defendant's involvement in the robbery was particularly compelling. He hid from the police in a marshy

(c) The defendant challenges the denial of his motion to suppress statements made during the course of his booking which related to a blue tee shirt used by Anderson as a mask. When the defendant arrived at the police station after his arrest, he was cold and wet from his venture into the pond. After declining several offers of a dry blanket, he pointed to the blue shirt, which was on the booking officer's desk, and asked if he could put it on. When he was informed that the shirt was the "mask," the defendant replied, "Bedford Fire Department, right? . . . That's what it says on the side of it." Soon afterwards the defendant claimed that the shirt had been tied in such a way that he could read the logo and accused the police at the station of "framing" him.

had seen the blue shirt prior to its use as a mask. The police officers' testimony at trial that the shirt was knotted so that the logo was not visible was not contradicted, and the defendant's statement was used as evidence of his guilt. [Note 4] His motion to suppress was based upon his contention that the police had made a videotape of the booking procedure, which did not depict the condition of the shirt and the visibility of the logo when he made the statement. A videotape properly made, the defendant contends, would have constituted potentially exculpatory evidence.

REDINGER, RUBY VIRGINIA (3 April 1915-9 Feb. 1981) was a Cleveland novelist and college educator whose most famous works were The Golden Net (1948) and George Eliot: The Emergent Self (1975) each of which received critical praise and established Redinger's reputation as an author.

This photo, a vision of bare-foot, blue jean and tie-dye affection, captured a sentiment of free love in the early years of UW-Green Bay. Can you share any information or memories? Please post your comments below. 041b061a72


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