Commonwealth v. Sheridan

322 N.E.2d 787, 3 Mass. App. Ct. 50, 1975 Mass. App. LEXIS 593

• Court: Massachusetts Appeals Court
• Decided: February 7, 1975
• Status: Published

Opinions

Grant, J.

The defendant has appealed from convictions on separate indictments (tried together) for rape of the same victim on August 21 and September 3, 1970. The only assignment of error (G. L. c. 278, § 33D) which we consider is the denial, subject to his exception, of the defendant’s pre-trial motion to suppress certain evidence.

A study of the evidence adduced and the constitutional arguments advanced at the hearing of the inartfully drawn motion leads to the conclusion that unless we are to blind ourselves to constitutional realities, the motion must be construed (as it should have been by the trial judge) as one to suppress any in-court identification of the defendant by the victim on the ground that any such identification would be irreparably tainted by reason of the victim’s having previously identified the defendant (1) from police mugshots of him which (unaccompanied by photographs of other persons) had been shown to the victim by a police officer on the day following her first complaint as to both rapes (see Simmons v. United States, 390 U. S. 377,383-384 [1968]) and (2) at two ensuing one-to-one confrontations between the victim and the defendant (one of them in a police barracks) which had been arranged by the police a week following the second rape (see Stovall v. Denno, 388 U. S. 293, 295, 301-302 [1967]; Foster v. California, 394 U. S. 440, 441-444 [1969]; Kirby v. Illinois, 406 U. S. 682, 684-685, 690-692 [1972]).

The trial judge, who has since retired (compare Commonwealth v. Forrester, 365 Mass. 37, 44-46 [1974]), denied the motion (except in a respect no longer material) without making any findings of fact. See Commonwealth v. Teta, 358 Mass. 814 (1971); Commonwealth v. Mendes, 361 Mass. 507, 510-512 (1972). Contrast Commonwealth v. Frank, 357 Mass. 250 (1970); Commonwealth v. Murphy, 362 Mass. 542, 547-549, 551, n. 1 (1972). In these circumstances all we can do is examine the evidence in order to determine for ourselves whether there was “clear and convincing evidence” (United States v. Wade, 388 U. S. 218, 240 [1967]) to support findings by us that the victim’s in-court identifications of the defendant as her assailant in both rapes would be independent of all or any combination of her three prior identifications.

Both rapes occurred at night. The best, and apparently the only, description of her assailant which the victim ever gave the police was confined to his approximate age and height, his general build, and the color and wave of his hair. The extent and intensity of the street lighting at the point where, prior to the first rape, the victim voluntarily entered her assailant’s car and momentarily observed him, was not described. Most of the victim’s identification testimony was phrased in terms of her opportunities to observe her assailant’s facial characteristics and bodily movements in the dark while they were in the car; she was not asked to, nor did she, relate any observations actually made during that period. The intensity of the nearest street light (one or two houses away) at the point where the victim was grabbed from the rear in advance of the second rape was problematical at best. Although the victim did testify that before she was dragged away from the area of the sidewalk she recognized her then assailant as the one who had committed the first rape, the second assault occurred in an overgrown area shielded from the nearest street light by foliage-bearing trees, a house, and a barn (or garage).

“In the absence of specific findings by the trial judge on the issue, we entertain grave doubt whether there could be found to be independent basis for... [either of the victim’s] in-court identification [s].” Commonwealth v. Teta, 358 Mass. 814 (1971). Particularly is there room for such doubt when we consider that it does not appear that the victim told the police the same person had committed both rapes until she was shown the mugshots of the defendant.

We reverse the judgments and set aside the verdicts in order to avoid possible miscarriage of justice.

So ordered.

The case was argued before Hale, C.J., and Rose, Keville, Grant and Armstrong, JJ. and was thereafter submitted on the record and briefs to Goodman, J.