Com. v. McGrath

Decision Date16 March 1972
Citation361 Mass. 431,280 N.E.2d 681
PartiesCOMMONWEALTH v. John J. McGRATH.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Robert V. Greco, Roslindale (Reuben Goodman, Boston, with him), for defendant.

Elizabeth C. Casey, Legal Asst. Dist. Atty., for the Commonwealth.

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

QUIRICO, Justice.

On July 17, 1967, the defendant was convicted by a jury on one indictment charging him with the crime of armed robbery and two indictments charging him with the crimes of assault by means of a dangerous weapon, all allegedly committed on March 29, 1967. He was sentenced to the Massachusetts Correctional Institution at Walpole on each indictment. No appeal therefrom to this court was perfected by or on behalf of the defendant.

On April 10, 1970, the defendant filed a motion for a new trial on the following grounds: (1) 'The pretrial identification of defendant was so unnecessarily suggestive and conducive to irreparable mistaken identity that petitioner was denied due process of law,' and (2) 'The quality of representation afforded defendant at his trial was so inadequate that defendant was denied his right to effective assistance of counsel.' The motion was heard on May 15, 1970, and denied on May 28, 1970. The case is before us on the defendant's bill of exceptions limited to the denial of this motion. 1

The only evidence presented by the defendant at the hearing on his motion for a new trial was the 455 page transcript of the entire evidence and proceedings at his original trial. The evidence recorded in that transcript is not summarized or otherwise described in the bill of exceptions before us. Instead the bill says that the transcript 'is incorporated herein by reference and made a part of this bill of exceptions.' Such a bill undoubtedly does not comply with the requirement of G.L. c. 231, § 113, as amended by St.1945. c. 328, that '(t)he exceptions shall be reduced to writing in a summary manner and filed with the clerk.' The bill does not purport to be an outline bill of exceptions permitting portions of the transcript to be reproduced and filed with the brief. See S.J.C. Rule 1:22, 351 Mass. 742; Goldman v. Mahony, 354 Mass. 705, 712, 242 N.E.2d 405. The bill filed by the defendant attempts to shift to the court the burden of counsel to go through the 455 page transcript and to summarize the portions of the evidence pertinent to the issues raised. By this bill the defendant also attempts to do something which he could not have done if he had seasonably taken the steps necessary to obtain appellate review of his trial exceptions. The judge, having discretion to do so, denied his motion to make the case subject to G.L. c. 278, §§ 33A--33G. Commonwealth v. King, 356 Mass. 495, 497, 253 N.E.2d 863. That left the defendant with the right to file a bill of exceptions, which could not properly have incorporated the entire trial transcript either directly or by reference. Although the judge extended the time for filing a bill of exceptions, the defendant filed none.

The attempted incorporation of the entire transcript into the bill by reference is no more permissible than is the actual indiscriminate reprinting of the entire transcript in the bill. We have spoken against the latter practice on a number of occasions. In Romana v. Boston Elev. Ry., 218 Mass. 76, 81, 105 N.E. 598, we said of such a bill: 'This bill of exceptions is of a kind that is becoming too frequent--so frequent as to suggest that if persisted in it may call for drastic action to be taken by the court of its own motion. It is such a bill as ought not to have been presented or allowed. It calls for undue effort on the part of the court to pick out the few important facts from the undigested mass of irrelevant and impertinent facts with which they are covered up.' In Cornell-Andrews Smelting Co. v. Boston & Providence R.R., 215 Mass. 381, 387, 102 N.E. 625, 626, we said that 'setting out the testimony by question and answer instead of giving the substance of the evidence in a narrative form . . . is a reprehensible method of alleging exceptions.' To the same effect, see Isenbeck v. Burroughs, 217 Mass. 537, 539, 105 N.E. 595; Corsick v. Boston Elev. Ry., 218 Mass. 144, 145, 105 N.E. 600; Graustein, petitioner, 305 Mass. 568, 569, 26 N.E.2d 535; and Rines, petitioner, 331 Mass. 714, 719--720, 122 N.E.2d 364, app. dism. sub nom. In re Rines, 349 U.S. 935, 75 S.Ct. 782, 99 L.Ed. 1264, reh. Den. 350 U.S. 855, 76 S.Ct. 38, 100 L.Ed. 724. Nevertheless, because the defendant is claiming that he has heretofore been denied his right of appellate review, we consider the exceptions on their merits notwithstanding these defects in the bill, 'but this is not to be regarded as a precedent.' Thorndike, petitioner, 254 Mass. 256, 257, 150 N.e. 296, 297.

1. The defendant argues that his right to due process of law under the Fourteenth Amendment to the Constitution of the United States was violated by permitting three witnesses to identify him in court as one of the two persons who committed a robbery from which the indictments resulted. The robbery occurred on March 29, 1967. The next day one of the witnesses (McIsaac) was taken to the police station and there asked to identify the defendant who was in a room with two police officers. The following day the two other witnesses (Barrone and Macey) were called to a District Court and shown the defendant and the codefendant charged with the same crime when the two were in the dock with another person. In both instances the witnesses identified the defendant as one of the two men who had committed the robbery. The defendant was without counsel on both occasions.

The defendant makes no claim that the out-of-court identifications by the witnesses violated his Sixth Amendment right to counsel. This is obviously due to the fact that the legal basis for such a claim did not exist until the cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, were decided on June 12, 1967. By its decision in Stovall v. Denno, 388 U.S. 293, at 296, 87 S.Ct. 1967, 1969, 18 L.Ed.2d 1199, also decided on the same date, the same court held that 'Wade and Gilbert affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after this date.'

In the Stovall case the court first concluded (at 300, 87 S.Ct. at 1971) 'that the Wade and Gilbert rules should not be made retroactive,' and then continued (at 301--302, 87 S.Ct. at 1972): 'We turn now to the question whether petitioner (Stovall), although not entitled to the application of Wade and Gilbert to his case, is entitled to relief on his claim that in any event the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. This is a recognized ground of attack upon a conviction independent of any right to counsel claim.' The defendant now makes precisely the same claim and bases it entirely on the Stovall decision. 2

Despite the fact that the now disputed identification evidence was admitted without objection or exception by the defendant, he has now had three opportunities through counsel to raise and argue the propriety of the evidence. At the conclusion of the cross-examination of the first of the three witnesses to identify the defendant in court, an associate of the defendant's trial counsel sought permission to move and argue orally to strike the testimony. The judge refused to recognize him because he had no appearance on record, but stated that he would hear trial counsel on the matter. At a lobby conference, trial counsel stated that he did not then wish to be heard on the matter. At the close of the Commonwealth's case the defendant filed a written motion seeking in part to strike the identification evidence. After hearing it was denied and the defendant excepted. At the hearing on his motion for a new trial the defendant, then, as now, represented by a lawyer from the Massachusetts Defenders Committee, had his third opportunity to be heard on the same issue. At the hearing on this motion the defendant offered no new evidence, but chose instead to rely on the transcript of the original trial proceedings.

After the hearing on the motion for a new trial the trial judge made detailed findings about the opportunity of the three identification witnesses to observe the defendant during the robbery. He reviewed the evidence concerning the movements and conduct of each of the two robbers, one of whom was identified as the defendant, and their positions with reference to each of the three witnesses. He found in part that '(t)he robbery lasted approximately twenty minutes. . . . At various times during this period, all three employees testified that they came within several feet of the felons, and had a clear unobstructed view of each one's face.' For these and all other subsidiary findings the judge cited the transcript pages containing the testimony upon which they were based. The judge concluded with the following general finding: 'The court finds and rules that while the so-called 'show-up' technique employed by the police in this instance is not to be commended, the clear and convincing evidence satisfies the court beyond a reasonable doubt that the in-court identifications were based upon observations of the suspects, and were not tainted by the pretrial confrontations.'

In ruling that the in-court identifications were not tainted by the pre-trial confrontations the judge impliedly found that the confrontations were not 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19...

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