Com. v. Kudish

• Citation: 362 Mass. 627,289 N.E.2d 856
• Parties: COMMONWEALTH v. Benedict KUDISH (and two companion cases 1 ).
• Decision Date: 20 November 1972
• Court: United States State Supreme Judicial Court of Massachusetts

Page 856

289 N.E.2d 856

362 Mass. 627

COMMONWEALTH v. Benedict KUDISH (and two companion cases ¹).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 3, 1972.

Decided Nov. 20, 1972.

Joseph C. Delcore, Everett, for defendants.

Terence M. Troyer, Asst. Dist. Atty., for Commonwealth.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ.

HENNESSEY, Justice.

These are appeals under G.L. c. 278, §§ 33A--33G. Indictments against the three defendants were tried together before a jury. Kudish was convicted of using an instrument to procure a miscarriage, and Rittner and Segal were convicted of being accessories before the fact of that crime. The defendants assign as error the judge's denial of their motions to suppress identification testimony, and the denial of their motions to put questions to prospective jurors, for directed verdicts, and for a new trial.

The young lady upon whom the abortion was allegedly performed (the young lady) testified that sometime in September of 1967 she discovered that she was pregnant. As a result of information received from other people, she looked up Dr. Kudish's number in the telephone book, called that number and asked for Dr. Kudish. ² A female voice first came on the line and then a male voice. The young lady described her condition to this person. This man, who never identified himself, gave her another name and telephone number to call. She later called that number and asked for Sally Rodman. Sally Rodman was not there, but the young lady left her own number and within a half hour, a person who identified herself as Sally returned her call. This person stated that Dr. Kudish 'does not do it anymore but we have a surgeon.' Approximately an hour later, a man called her for further discussion.

The young lady testified that four or five days after these calls she went to a certain restaurant in Brookline, where she was picked up after dark by two men and a girl in a car. The driver of this car was the defendant Segal, who introduced himself as 'Eddie.' The other man was dropped off, and after a ride of approximately one-half hour, the car stopped at a house in what she later learned was the city of Malden. The defendant Sandra Rittner was in the house when the young lady entered and was introduced as Sally Rodman. Rittner took her temperature and blood pressure and Segal obtained a blood sample from her ear. She was given a pill which was described as a 'tranquilizer.' She was in the presence of Rittner and Segal for about three hours.

Half an hour to an hour after the young lady arrived at the house, she heard a person walk down the stairs and then observed this person walk through the room in which she was seated and go into the kitchen. This person, who she identified in court as the defendant Kudish, was wearing a tee shirt, regular pants and a half mask which concealed the lower part of his face including part of his nose. Later, she went into the kitchen, gave a sum of money to either Rittner or Segal and lay upon a table with her legs placed in stirrups. Either Rittner or Segal gave her a round mask containing some form of gas. During the period she was in the kitchen she put this device over her face 'once or twice just for a second.' She remained in the kitchen with Kudish, Rittner and Segal forty minutes, during which time Kudish inserted an instrument into her vagina, and an abortion was performed on her. During this entire period Kudish talked 'off and on.' His voice was the same one she had heard on the telephone when she called his office. During the abortion, the young lady was injured. She was then taken to a taxi and brought to the Massachusetts General Hospital.

A gynecologist on duty at the Massachusetts General Hospital testified that the young lady was brought there in the early morning of September 20, 1967, and that her uterus had been perforated in two places. A partial hysterectomy was performed at the hospital.

Sometime later a police officer drove the young lady past a house which she identified as the house where the abortion had occurred. She at that time identified Rittner, who was standing on the street, as the woman who was in the house on the night of the abortion. On October 30, 1967, the young lady was driven by the police to a place in Boston, where she identified Segal as the man who had been in the house on the night of the abortion. On October 6, 1967, she viewed nine photographs of men, including Kudish, and did not pick out any picture. Then a policeman showed her a picture of Kudish singly and she said, 'That is pretty good. I don't think he had that much hair . . . (j) ust more hair.' Thereafter, on October 30, 1967, she viewed and identified Kudish as the abortionist, as a police station where she had gone at the invitation of the police. She recognized his voice also as that of the abortionist. Kudish was under arrest, was not in a lineup, and was not represented by counsel. ³ All of these identifications of the three defendants by the young lady occurred before any complaint or indictment issued against any of them.

1. All three defendants argue that there was error in the judge's denial of their motions to suppress identification testimony by the young lady. She was allowed to make in-court identifications of all three defendants before the jury. Evidence of her pre-trial identifications of the defendants Rittner and Segal, and her pre-trial photographic identification of the defendant Kudish, was introduced before the jury, but evidence of her pre-trial identification of Kudish at the police station was excluded.

There was no error. A voir dire hearing was conducted concerning the motions to suppress. After oral argument before the full court, the case was remanded to the Superior Court for more detailed findings of facts. The subsequent findings of the judge were warranted by the evidence and adequately established the constitutional validity of his rulings on the motions. Although the defendants were without counsel at the times and places of the pre-trial identification procedures, all of these confrontations occurred before the defendants had been indicted or otherwise formally charged. The 'Wade-Gilbert per se exclusionary rule' is therefore not applicable. Kirby v. Illinois, 406 U.S. 682, 686, 92 S.Ct. 1877, 32 L.Ed.2d 411; Commonwealth v. Lopes, Mass., 287 N.E.2d 118. ^a The judge's findings are sufficiently supportive of his conclusions that the identification procedures were not so...