Suffolk. Indictments found and returned in the Superior Court on March 18, 1977. The cases were tried before Garrity, J.
Hale, C.j., Goodman, & Grant, JJ.
Evidence, Photograph, Other offense. Practice, Criminal, Mistrial, Deliberation of jury, Instructions to jury.
The opinion of the court was delivered by: Hale
At a criminal trial, the admission in evidence of a "mugshot" album from which the victims had selected the defendant's photograph was not so prejudicial as to constitute reversible error where defense counsel had placed the reliability of the victims' identification of the defendant in question and where any impact resulting from the introduction of the album was merely cumulative of previous unchallenged testimony to the effect that the victims had selected the defendant's photograph from a book of mugshots. 
At a criminal trial, the Judge did not err in allowing a court clerk to testify that the defendant had been present in court on two days on which an alibi witness had testified he was in her home. 
At a criminal trial, the Judge did not err in denying the defendant's motion to strike from evidence an album from which the victims had selected the defendant's photograph where a detective's testimony that photographs might have been added to or taken away from the album in the interval since the victims' identification went to the weight of the evidence rather than to its admissibility. 
At a criminal trial, the Judge did not err in refusing to declare a mistrial or in reading verbatim the jury charge approved in Commonwealth v. Rodriquez, 364 Mass. 87 (1973), after the jury informed him they were deadlocked following a deliberation of slightly less than three hours. 
The defendant was indicted for the armed robbery of two persons in the Washington Street subway station. He was convicted on those charges after a jury trial held subject to G. L. c. 278, §§ 33A-33G, in the Superior Court and has appealed. He assigns as error the Judge's admission of certain evidence at trial and the Judge's supplemental charge to the jury.
At trial the Commonwealth presented the testimony of the two victims that at about 12:05 A.M. on February 17, 1977, while they sat together on a bench awaiting a train in the Washington Street subway station they were confronted by two black males. One of the men, identified in court by both victims as the defendant, brandished a long-bladed knife. He spoke with the victims for several minutes, demanding that they hand over money. With the assistance of his companion, whom the victims were later unable to identify, the defendant took both cash and jewelry from the victims. The defendant then ordered the victims not to report the robbery to the police, and he and his companion left the subway station. A train subsequently pulled into the station, and the victims reported the robbery to employees of the Massachusetts Bay Transportation Authority (MBTA).
The next morning two MBTA police officers went to the victims' homes. The officers asked each victim to look through an album of photographs. In the course of looking through the album both victims independently pointed out a photograph of the defendant and identified him as the man who had robbed them. The defendant was subsequently arrested on charges of armed robbery.
After the victim testified on direct examination, the defendant's attorney cross-examined them closely as to whether they had had an opportunity to observe the appearance of the two robbers, as to whether their first descriptions of the robbers to the police had contained certain inaccuracies and omissions, and as to whether their pretrial confrontations with the defendant had been conducted in a suggestive manner. The Commonwealth then called an MBTA detective to the stand. The detective testified that he had been present when the victims had selected the defendant's photograph on the morning after the robbery. The prosecutor then asked the detective to describe those features that were common to all the photographs contained within the album which he had shown to the victims. The defendant's attorney objected, and the question was excluded. The prosecutor then offered the entire album, and it was admitted in evidence over the defendant's objection and exception. The album contained mugshots of approximately 288 black males.
The defendant contends that the introduction of the album in evidence was improper because the jury were permitted to observe that his photograph was included therein, and they may have inferred from that fact that he had previously been involved in criminal activity. He claims that admission of this evidence was in violation of his right to due process because it allowed the jury to consider his prior criminal involvement against him without any proof of such involvement having been properly admitted in evidence. While we agree that the Judge should have excluded the album from evidence, we consider that the effect of the error was not so prejudicial as to require reversal of the defendant's conviction.
When the defendant's attorney by his cross-examination placed the reliability of the victims' identification of the defendant in question, the Commonwealth had a major interest in fortifying its case with evidence that soon after the robbery the victims had selected the defendant's photograph under circumstances which indicated that their identification of him was reliable. Commonwealth v. Torres, 367 Mass. 737, 738-739 (1975). Commonwealth v. McCants, 3 Mass. App. Ct. 596, 597 (1975). United States v. Fosher, 568 F.2d 207, 215 (1st Cir. 1978). The case against the defendant rested entirely upon the victims' identification ...