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June 7, 1978


Suffolk. Indictments found and returned in the Superior Court on November 13, 1975. The cases were tried before Roy, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

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


Identification. Practice, Criminal, Probable cause hearing, Motion to suppress.

The opinion of the court was delivered by: Liacos

Evidence at a hearing on a motion to suppress photographic identifications of the defendant warranted the Judge's finding that the array of photographs shown to the witnesses was not impermissibly suggestive. [351-355]

There was no error in the denial of the defendant's motion to suppress identifications of the defendant made at a probable cause hearing where the defendant was represented by counsel at the hearing and there was no showing that counsel had sought to alter the identification procedures. [355-359]

The defendant was indicted for murder in the first degree, armed robbery (two indictments), and the unlawful carrying of a handgun. After a jury trial, the defendant was found guilty of murder in the second degree and guilty of the three remaining charges. He was sentenced to life imprisonment on the murder charge as well as to three lesser terms on the other charges to run concurrently with the life sentence. We consider the defendant's appeal pursuant to G. L. c. 278, §§ 33A-33G.

The principal issues in this case involve the identification of the defendant by three witnesses. The defendant argues first that the trial Judge erred in denying a motion to suppress identification evidence, and second that the Judge erred in denying the defendant's requests for jury instructions on the issue of identification. We consider the issues in that order after relating the material facts. We conclude that there was no error and that the judgments of conviction are to be affirmed.

The murder occurred about 10 p.m. on August 30, 1975, at the Golden Cafe in Roxbury. A patron in the cafe, one Alma Condo, was seated with an employee of the cafe, Rita McLellan, and her daughter, Deborah McLellan. Also present was the owner and operator of the cafe, Albert A. Dunn. Two men entered the cafe, announced a holdup, and jumped over the bar to confront Dunn. One of the men was holding a gun. After a few words were exchanged with Dunn, the robber with the gun put it to Dunn's head and fired. Dunn died as a result of a gunshot wound to his brain. The two men took some money from the cash register and from Rita McLellan's handbag and fled. Rita McLellan called the police, who arrived at the scene within minutes. Although there is some dispute as to whether Alma Condo and Deborah McLellan gave a description of the robbers at that time, it appears that Rita McLellan gave the police a brief description of them.

Other relevant facts involve the process of identification that led to the arrest of the defendant. For our purposes, it will be helpful to divide the identification process into three stages: (1) pre-arrest identification by photographs; (2) identification at a pre-indictment probable cause hearing; and (3) identification at trial. Each stage will be discussed separately.

1. Pre-arrest Identification by Photographs.

a. Rita McLellan. Two police detectives visited Mrs. McLellan at her home on September 17, 1975, and handed her thirteen photographs. She picked out the photograph of the defendant as the man with the gun. There was no significant conversation with the police either before or after the identification.

b. Deborah McLellan. On or shortly after September 17, 1975, Deborah McLellan was called to the police station and was asked to look at the same photographs. Prior to looking at the photographs, she was questioned regarding the events at the cafe. She became highly excited, or hysterical, much as she had been on the night of the murder. According to the police, she was unable to select any of the photographs due to her excited condition. Deborah testified, however, both at the hearing on the motion to suppress and at the trial, that she did pick out the defendant's photograph from the group of thirteen and had identified it as being a photograph of one of the robbers.

c. Alma Condo. The police detectives visited Mrs. Condo in her home sometime in September and showed her the same thirteen photographs. She was not able to make an identification. Subsequently, Mrs. Condo came to the police station on her own initiative, complaining that she was being followed and that she was afraid. The police presented to her the same thirteen photographs, from which, according to the police, she picked the photograph of the defendant as the man who had been following her. Mrs. Condo's testimony on this point was somewhat confused, making it unclear ...

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