Commonwealth v. Gerrior

430 N.E.2d 436, 13 Mass. App. Ct. 913, 1982 Mass. App. LEXIS 1160

Opinion

1. The judge could properly find that the array of twelve photographs from which the victim identified the defendant’s photograph was not suggestive, despite the fact that the other eleven photographs had been included in the two thousand or more photographs she had previously viewed and rejected. Compare Commonwealth v. Small, 10 Mass. App. Ct. 606, 608 (1980). Compare also Commonwealth v. LaPierre, 10 Mass. App. Ct. 641, 643-644 (1980). The police were not required to forgo a photographic identification procedure in favor of a lineup. Commonwealth v. Mattias, 8 Mass. App. Ct. 786, 789 (1979). The defendant’s other contentions with respect to the identification procedure are equally without merit. 2. The judge did not err in denying the motion for a new trial. Apart from questions as to the admissibility at a new trial of the evidence offered in support of the motion, the judge was not required to believe that the evidence was, as contended, newly discovered. Compare Commonwealth v. Brown, 378 Mass. 165, 170 (1979) (relative to the testimony of Key). Among other things, the judge could property disbelieve the suggestion that the witness Porter, one of a circle of friends and acquaintances around the defendant, had learned of the charges against the defendant only after his conviction. As to the standard of review and the procedural contentions, see Commonwealth v. DeChristoforo, 360 Mass. 531, 542-543 (1971).

Judgments affirmed.

Order denying motion for a new trial affirmed.

William J. Cintolo for the defendant. Kevin J. Ross, Legal Assistant to the District Attorney, for the Commonwealth.