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07/06/77 COMMONWEALTH v. CARL Z. PETTIJOHN

July 6, 1977

COMMONWEALTH
v.
CARL Z. PETTIJOHN



Suffolk. Indictment found and returned in the Superior Court on September 25, 1975. The case was tried before Roy, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Hennessey, C.j., Braucher, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Identification. Evidence, Judicial discretion, Collateral matter, Identification.

The opinion of the court was delivered by: Hennessey

At the trial of an indictment for armed robbery, there was no error in the denial of the defendant's motion to suppress an out-of-court photographic identification. [27-28]

At the trial of an indictment for armed robbery, the Judge did not abuse his discretion in refusing to allow the defendant to call a witness who had been mistaken in his first attempt to select a photograph of the defendant from a number shown to him by police and whose out-of-court identification testimony had previously been suppressed on the defendant's motion where that witness's mistake in identifying the defendant was not relevant in assessing another witness's identification of him. [28-32]

This is an appeal under the provisions of G. L. c. 278, §§ 33A-33G, from a conviction on a charge of armed robbery, after a jury trial in the Superior Court. Before the trial the Judge denied the defendant's motion to suppress the testimony of the witness David Smith, and the defendant excepted. The Judge allowed the motion to suppress as it applied to the testimony of the witness Frank Griffin.

During the trial, and after the Commonwealth rested, the trial Judge ruled that the defendant could not call as a defense witness Frank Griffin, whose testimony had previously been suppressed on the defendant's motion.

The defendant's conviction was affirmed on appeal by the Appeals Court, 4 Mass. App. Ct. 829 (1976), and this court granted the defendant's application for further review.

The defendant argues two issues before this court: that the Judge was in error in permitting before the jury the identification of the defendant by the witness Smith, and that the Judge was also in error in excluding the testimony of the witness Griffin, as proffered by the defendant. We conclude that there was no error. We reach this Conclusion on substantially the same reasoning applied by the Appeals Court, as more fully expounded in this opinion.

1. We turn first to the issue whether there was error in the Judge's denial of the defendant's motion to suppress the identification testimony of the witness Smith. Clearly there was no error.

We summarize the contested testimony of Smith as it was presented at the hearing on the motion to suppress. Smith testified that at 3:30 P.M., September 8, 1975, while on duty as a security guard for New England Wholesale Drug Co. in Dorchester, he was robbed of his weapons; that the next morning he was shown photographs at New England Wholesale Drug Co., including a photograph marked 1G which he identified as the picture of the person who robbed him; that he saw other photographs at the police station before that and 1G was not among them but he did not know if the other photographs marked as exhibits were among the photographs he was shown at the police station or later at the New England Wholesale Drug Co., but they resembled them; that he knew the defendant's face as he was from the neighborhood, and that he did not recall if a photograph marked 1A was among the photographs shown him by the police on the morning of September 9, 1975. *fn1

Boston police Officer Ivanoski testified that on September 9 he showed Smith nine photographs and Smith had selected 1G.

There was no showing that the photo identification process was in any way suggestive as it related to the witness Smith. The Judge was correct in his ruling denying the motion to suppress. Commonwealth v. Botelho, 369 Mass. 860, 867-868 (1976). *fn2 Commonwealth v. Underwood, 3 Mass. ...


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