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09/12/78 COMMONWEALTH v. JOSEPH ALVES

September 12, 1978

COMMONWEALTH
v.
JOSEPH ALVES, III, & OTHERS *FN1



Plymouth. Indictment found and returned in the Superior Court on September 19, 1973. The case was tried before Sgarzi, J.

Hale, C.j., Goodman, & Grant, JJ.

SYLLABUS BY THE COURT

Constitutional Law, Speedy trial. Practice, Criminal, Speedy trial, Assistance of counsel. Identification. Evidence, Hearsay, Police report.

The opinion of the court was delivered by: Hale

A delay of three years between the indictment and trial of two defendants did not constitute a denial of the defendants' right to a speedy trial where findings were warranted that the defendants were responsible for a major portion of the delay, that they had failed to assert their right to a speedy trial during the delay, and that they had not been prejudiced by the delay. [576-580]

Defendants in a criminal case failed to show either that a conflict of interest existed or that their rights to effective assistance of counsel were violated by the fact that the same public defender was permitted to represent all three of the defendants prior to and during their trial. [580-581]

A confrontation between the victim of a crime and the occupants of an automobile stopped by police at a roadblock was not so unnecessarily suggestive as to create a substantial likelihood of mistaken identification where the victim had had an ample opportunity to observe the perpetrators of a robbery, the confrontation occurred in the course of a continuing police investigation within an hour and a quarter following the robbery, the victim identified the occupants immediately upon observing them without any prompting by the police, and the victim's descriptions of the robbers, which had been given to the police within a very short time of the robbery, were consistent with the appearances of the occupants when apprehended. [581-582]

At a criminal trial, the Judge did not err in excluding from evidence a police officer's report which contained statements made by another police officer; such second-level hearsay was not admissible under either the business records or the official written statements exception to the hearsay rule. [582-583]

These are appeals by three defendants who have been convicted after a jury trial held pursuant to G. L. c. 278, §§ 33A-33G, on a single indictment charging them with armed robbery. In a brief submitted by Baptista and Dias they contend that the Judge erred in refusing to dismiss the indictment against them on the ground that the Commonwealth failed to provide them with a speedy trial. Baptista and Dias also contend that they were deprived of their rights to the effective assistance of counsel because of a conflict of interest which arose between the defendants at a time when they were jointly represented by the same public defender. In a brief filed by Alves he contends that the Judge erred in refusing to suppress the testimony of one of the victims identifying Alves as one of the robbers because of a suggestive confrontation which occurred between the victim and the defendants soon after the robbery. Alves also assigns error in the Judge's exclusion of certain evidence offered by him at trial. After first recounting certain of the material facts which could have been found by the Judge from the evidence submitted at the hearing on the motions to dismiss and to suppress, we shall discuss the defendants' contentions separately.

On the night of May 22, 1973, Mr. and Mrs. Horton, an elderly couple, were watching television in the living room of their home, located on Route 28 in Middleboro. None of the lights was on in the Hortons' home. However, the living room was amply illuminated both by light which emanated from the television set and by light which shone through a picture window from a mercury vapor streetlight located across the street from the house.

At about 9:45 P.M. three men entered the Hortons' home. One of the men, armed with a nickel-plated handgun, forced the Hortons to remain seated in the living room while the other two men took about $300 from several envelopes which they found in a metal cash box in one of the bedrooms. The men then tore the Hortons' two telephones from their connections and left the house. The robbery lasted approximately five to seven minutes.

After the men had left, Mr. Horton went to a gas station next to his house and telephoned the Middleboro police. While enroute to the gas station he saw the three men running down Route 28. The Middleboro police received Mr. Horton's report of the robbery at about 9:55 P.M. Upon receiving the report some officers went directly to an intersection on Route 28 located about four miles west of the Hortons' residence, set up a roadblock, and began stopping all westbound traffic. At the roadblock the officers received a radio report that the robbery had been committed by three black men, armed with a revolver, all three men being about 5' 8", and one man having a large afro hairstyle.

After having stopped several automobiles at the roadblock, the officers stopped a black Corvair in which the three defendants and two women were riding. The height of the three defendants ranged from about five feet seven inches to about six feet. One of the defendants wore his hair in a large afro style. The officers ordered the occupants out of the Corvair. All were patted down, and the Corvair was searched. No gun or significant amount of cash was found. The occupants of the Corvair were detained while an officer transported Horton to the roadblock.

The officer and Horton arrived at the roadblock between 10:30 and 11:00 P.M. As the officer brought the police cruiser to a halt Horton immediately and without prompting pointed to the three defendants, who were standing together by a streetlight at the edge of the road about ten to fifteen feet from the cruiser, and identified them as the men who had robbed him. Horton then walked up to the defendants and identified Baptista as the man who had threatened him with a gun. He also identified Alves and Dias as the men who had searched his bedrooms. Horton stated that he recognized the red shirt worn by Dias, the yellow shirt worn by Alves, and the shirt with the dark and ...


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