Commonwealth v. Turner

372 N.E.2d 269, 6 Mass. App. Ct. 829, 1978 Mass. App. LEXIS 655

Opinion

The record does not bear out the defendant’s claim that the judge abused his discretion in denying the defendant’s request for a voir dire on the victim’s identification of the defendant from a group of photographs. No pretrial motion to suppress had been filed. Rule 61 of the Superior Court (1974). Commonwealth v. Gauthier, 5 Mass. App. Ct. 185, 187-188 (1977). Nor did the failure to file such a motion deprive the defendant of the effective assistance of counsel. Commonwealth v. Saferian, 366 Mass. 89, 98-99 (1974). See Commonwealth v. Hall, 369 Mass. 715, 723-725 (1976). The evidence of the photographic identification procedure appears to have been fully developed at trial. That evidence was insufficient to warrant a finding that there was anything suggestive about the identification (compare Commonwealth v. Coburn, 5 Mass. App. Ct. 781, 782 [1977]), and for that reason the defendant has failed to show prejudice. Commonwealth v. Saferian, supra at 96. Pires v. Commonwealth, 373 Mass. 829, 836 (1977). It also appears from the transcript that the defendant was ably represented by trial counsel. This appeal is frivolous.

The case was submitted on briefs. J. Russell Hodgdon for the defendant. Garrett H. Byrne, District Attorney, for the Commonwealth.

Judgments affirmed.