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June 26, 1978


Suffolk. Indictments found and returned in the Superior Court on September 24, 1975. The cases were tried before Roy, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Hennessey, C.j., Quirico, Kaplan, Wilkins, & Abrams, JJ.


Identification. Error, Whether error harmful.

The opinion of the court was delivered by: Kaplan

The Judge at a criminal trial erred in allowing a one-on-one voice identification of the defendant by the victim in open court under unnecessarily suggestive conditions [516-519]; such error was not harmless where the evidence apart from the voice test, while sufficient to warrant a guilty verdict, was not overwhelming [519-521].

After a trial centering on the question of identification, a jury found the defendant guilty on three indictments for rape by unnatural sexual intercourse (G. L. c. 265, § 22), and indictments for assault with a dangerous weapon (c. 265, § 15B) and for armed robbery (c. 265, § 17), all arising out of a criminal event on the evening of Wednesday, August 13, 1975. As will be seen, there was substantial evidence pointing to the defendant as the culprit. But as the trial drew to a close the prosecutor was permitted over repeated objections to conduct a "one-on-one" voice identification in open court, and it is claimed that the proceedings were thereby infected with serious error. The Appeals Court affirmed the convictions. Commonwealth v. Marini, 5 Mass. App. Ct. 834 (1977). This court granted further appellate review.

We describe the trial in some detail and then deal with the claimed error. *fn1

As its case in chief the Commonwealth brought out the following through testimony of the complaining witness (whom we shall refer to as the victim) regarding the details of the crime, and through testimony of the victim and police officers regarding the efforts at identification. On the date mentioned the victim, aged twenty-three, and her girl friend were sitting on a bench on the platform of the elevated station in Boston called Science Park, awaiting the trolley. The only other person on the platform was a man appearing to be in his late teens or early twenties standing nearby carrying a shopping bag. The man walked behind the girl friend and, drawing a gun and warning the two not to scream, forced them along the platform and into a small, squalid utility room lit by an unshaded electric bulb. He demanded and took from the victim all the money in her wallet (but refused the wallet) and dropped the money into his shopping bag. Still menacing the women with his gun, he ordered them to take off their clothes. He let down his pants and in vulgar words ordered the victim and the girl friend to perform acts of fellatio on him and to submit themselves to acts of cunnilingus. They did so. After threatening to take their clothes, the assailant relented, and left, warning them to remain in the room for a half hour without summoning help. The episode had taken fifteen to twenty minutes. The women stayed for perhaps a further fifteen minutes and then returned to the victim's apartment in the neighborhood.

Next morning the victim went to a station house of the Metropolitan District Commission and told her story to Officer Flynn. *fn2 She was then taken to another office where she and Officer Morris produced cooperatively (by the "Ident-a-kit" method) a composite picture of the assailant as she recalled him. A week later Officer DeGuilio of the police department of the Massachusetts Bay Transit Authority called at the victim's apartment and asked her to look through some sixty-six "mug" photographs of white males around twenty years old. *fn3 On the first run through she selected a picture, then paused at another, but soon rejected it, and on a second examination of the deck rather firmly identified the picture she first chose. This was a picture of the defendant. It showed a clean-shaven young man whereas the composite was with moustache and goatee, but otherwise the facial resemblance was close. The defendant was arrested a few days after this identification. There was no lineup or showup. At the probable cause hearing held at the Municipal Court of the City of Boston the victim, so she testified at trial, recognized the defendant at sight, but it is fair to say he was so placed in the court room that any onlooker would probably have perceived he was the subject of the hearing. The victim identified the defendant at trial which occurred in May, 1976.

The verbal descriptions of the assailant given by the victim to the three officers, and at a voir dire hearing, *fn4 and at trial, were consistent in depicting a "very thin," or "very, very thin" white male in his late teens or early twenties with a narrow face, unkempt dark blond or light brown hair, blue eyes, and moustache and goatee. *fn5 Some differences, however, did appear. As to height: Officer Flynn said the victim gave the assailant's height as six feet two inches. *fn6 On the composite, height was stated as six feet. Officer DeGuilio said the victim had estimated five feet ten inches to six feet. *fn7 At trial, the victim put the assailant's height at approximately six feet, figuring that he seemed about four inches taller than her own height of five feet seven inches. As to weight: The composite gave weight as 165 pounds, but the victim testified that she believed she had given estimates from 150 to 165 pounds to Officers Flynn and DeGuilio. *fn8 This was the Commonwealth's case in chief.

The defense called Mrs. Jean Ratliff. She testified that on the evening of August 13, around 8 p.m., she was visiting with the defendant and his mother at their home. As supervisor of the mailing department of Winthrop Printing Company, she had gotten a job for the defendant and he was to report the next day. There was Discussion of the nature of the job and possibilities of advancement because the defendant had a driver's license. The defendant was "going back and forth" getting dressed during the conversation, and left the house about 9 p.m. On cross-examination Mrs. Ratliff said the defendant started work the next morning (a Thursday) and did some day work (i.e., work on call) the next few days. Pressed as to when she learned of the importance of the defendant's whereabouts at 8 p.m., she said she learned of his arrest through a newspaper report on Monday, August 25, but that did not mention when the crime occurred. She did not recall when she became informed of this. She said she had been a friend of the defendant's mother for sixteen years. On redirect, the witness said she was first in touch with defense counsel in January, 1976. At that time she told counsel she had visited at the defendant's home on August 13. *fn9

The defendant took the stand in his own behalf and on direct examination testified consistently with Mrs. Ratliff as to the visit on August 13 around 8 p.m.

The Commonwealth opened cross-examination by eliciting from the defendant that he was nineteen years old and five feet eight inches tall (as indicated, he said, on his driver's license). He said he left the house on August 13 about 9 p.m. but he could not say where he went that night; nor could he identify the job he claimed he was doing earlier that day as a helper to his father, an electrician. He said he was at work at Winthrop's the next morning and worked perhaps two days before he was arrested, apparently on Saturday, August 23. Some time after the arrest, it occurred to him to have his mother look into his employment at Winthrop's in order to help fix his actions on August 13.

About this stage of the cross-examination the prosecutor at a bench conference asked the Judge to admit the victim to the court room -- thus modifying his previous order sequestering witnesses -- and to direct the defendant to stand so that the victim could undertake a further identification of the ...

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