Com. v. Gibson

• Decision Date: 11 February 1970
• Citation: 357 Mass. 45,255 N.E.2d 742
• Parties: COMMONWEALTH v. Herbert E. GIBSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 742

255 N.E.2d 742

357 Mass. 45

COMMONWEALTH v. Herbert E. GIBSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 6, 1970.

Decided Feb. 11, 1970.

Reuben Goodman, Boston, for defendant.

Paul V. Buckley, Asst. Dist. Atty. (John M. Lynch, III, Legal Asst. to Dist. Atty., with him), for the Commonwealth.

Before WILKINS, C.J., and KIRK, SPIEGEL and REARDON, JJ.

REARDON, Justice.

The defendant appeals from a conviction on an indictment charging armed robbery of the Joseph Warren Co-operative Bank in Roxbury on July 22, 1968. The trial was held subject to the provisions of G.L. c. 278, §§ 33A--33G. Of various errors assigned by the defendant, he presses four before us. We shall deal with these seriatim, making appropriate reference to the record and transcript of evidence as may be necessary.

1. The defendant first complains that after a pre-trial hearing of his motion for discovery he was denied permission to examine photographs in possession of the police of persons other than the defendant examined by identifying witnesses. One of these, Albert Pelletier, treasurer of the bank and working as a teller when the robbery took place, who observed the robber about three minutes, called the police after the robbery had been completed. They arrived and he described the holdup man. He then went to Boston police headquarters and, having viewed over a hundred photographs, selected after some hesitation a picture of the defendant. Richard Sage, another bank employee and a university student, had a view of the robber for two and a half to three minutes. He also gave the police a description and, on the day of the robbery, the police returned to the bank with twenty-five or more pictures which he went over. He too, identified a picture of the defendant as the robber. It is the defendant's contention that the refusal of permission to examine the photographs prevented 'counsel for the defendant from effectively testing these critical identifications,' and that under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247, the photographs reviewed by Pelletier and Sage should have been made accessible to him likewise. Both witnesses, before they viewed the pictures, gave the police descriptions of the robber which were quite similar, they had both seen him on an occasion when the bank had been held up a month or so before, and they identified him positively at the time of trial.

While the photograph of the defendant was not a particularly recent one there was no indication of improper suggestion to the witnesses by the police. Both witnesses were evidently reliable and intelligent. We agree with the Commonwealth that to require segregation of all photographs shown to witnesses in the investigatory stage of all crimes would be to place a heavy if not intolerable burden upon investigatory processes at a time when these processes are already overtaxed, and we are not disposed to do it. In any event, the jury had before them the complete story of the photographic identifications for such weight as they chose to give it. Commonwealth v. Nassar, 354 Mass. 249, 262, 237 N.E.2d 39. See COMMONWEALTH V. WILSON, MASS. , 245 N.E.2D 439^A.

2. The defendant is not content with the denial at a pre-trial hearing of his motion that the court instruct Sage and Pelletier concerning the right of defence counsel to interview them and also that the Commonwealth has no right to instruct them not to be interviewed. It appeared that the witnesses, in court at the time of a previous pre-trial hearing, were there solicited for information by defence counsel, at which time the district attorney told them they did not have to talk with him unless they so wished. We see nothing wrong here. The witnesses were not in protective custody (see COMMONWEALTH V. CARITA, MASS. , 249 N.E.2D 5.^B They were available for interview at other times and places subject to their willingness to be interviewed. Commonwealth v. McLaughlin, 352 Mass. 218,...