COMMONWEALTH vs. JAMES L. COFIELD & another [Note 1] (and twenty-two companion cases).

HALE, C.J. After a joint trial held subject to the provisions of G. L. c. 278, Sections 33A-33G, both defendants were found guilty on four indictments charging assault with a dangerous weapon, on four indictments charging armed robbery, and on three indictments charging kidnapping. Additionally, Dukes was found guilty on two indictments charging rape and Cofield on one. The defendant Cofield has briefed and argued two assignments of error: (1) that the judge improperly refused to ask prospective jurors certain questions on voir dire designed to elicit possible racial bias in addition to the questions provided for by G. L. c. 234, Section 28; [Note 2] and (2) that he was deprived of due process of law because the photographic

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identification procedure which resulted in the selection of his photograph by the four victims "was so impermissibly suggestive . . . [that it gave] rise to a very substantial likelihood of irreparable misidentification." The defendant Dukes is here on a single assignment of error which is substantially the same as Cofield's first assignment of error, set out above. There was no error.

It appears from the evidence that at about 11:45 P.M. on August 14, 1971, four white teenagers, Lynne, Mary, Paul and David, who had been bowling, were walking through a baseball field in the Fens area of Boston on their way to Mary's home in the Mission Hill section of Roxbury. When they reached the middle of the field they were accosted by a group of seven or eight black youths, at least four of whom brandished knives. During this encounter, which lasted ten minutes, the four victims were robbed of money and jewelry, after which the robbers left. The four then started to walk toward Park Drive but were soon confronted again by one of the youths, later identified as the defendant Cofield. He said that he and his friends needed cash and not the jewelry. The four victims followed Cofield to a wall at the side of the park where the other youths were waiting. There they were told by the defendant Dukes, who appeared to be the leader of the group, that if they could come up with twenty-five dollars in cash he would return all of their jewelry. Dukes told Paul to go home and get the money and that the other three would be held as hostages. He also told Paul that the hostages would be killed if the police were called or if Paul did not return "within a certain amount of time." Paul left and was followed by one of the youths.

Dukes then forced Lynne into some bushes about twenty yards from the group and there raped her. After Dukes left with Lynne, Cofield talked with Mary for about ten minutes and then ordered her into the bushes. Brandishing a knife, he gave her the alternative of removing her clothing or being killed. While she was undressing, Dukes appeared. Dukes then proceeded to rape Mary while Cofield held a knife to her throat. Cofield then raped her. A third youth

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was prevented from performing a similar act by the arrival of the police. Upon the arrival of the police all the youths fled. A quick search of the area by the police met with no success. The victims were then taken to a hospital.

1. Prior to trial, requests for voir dire questions were filed by the defendants. [Note 3] The trial judge refused to give those requests but said that he would instruct the venire, from which the jury would be selected, on the fundamental rules of law and would refer to the matters raised in the suggested questions concerning racial prejudice.

Sixty prospective jurors were called to the court room from the regular jury pool and were given general instructions on the law, including the need for jurors to be free of bias and prejudice in their deliberations. [Note 4] No exception was taken to any of those remarks, nor was the judge requested

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to extend or clarify them. Prospective jurors were selected and examined. [Note 5] G. L. c. 234, Section 28. No juror expressed an affirmative response to any of those directions, nor did any indicate a desire so to respond. No challenges were exercised, but both defendants "took exceptions to the whole panel on the questions in the voir dire." [Note 6] Those exceptions form the basis for the assignments of error argued by both defendants. The substance of the defendants' argument is that a black defendant, accused of raping a white woman, falls within the ambit of Ham v. South Carolina, 409 U.S. 524 (1973), by the very nature of the offense charged. In the Ham case the black defendant, well known locally as a civil rights activist, was convicted of possession of marijuana; the United States Supreme Court held that in the circumstances the trial judge was required to inquire specifically into the question of the jurors' possible racial bias. We note that our Supreme Judicial Court has said that the Ham rule requiring such inquiry applies only where "special circumstances" can be shown. Commonwealth v. Ross, 363 Mass. 665 (1973), cert. den. sub nom. Ross v. Massachusetts, 414 U.S. 1080 (1973). Commonwealth v. Ryles, 363 Mass. 674 (1973). [Note 7] Assuming without deciding that the rape of a white woman by a black man constitutes a special circumstance within the meaning of the Ross and Ryles cases, our opinion is that the trial judge in the case at bar committed no error

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in refusing to ask the requested questions. "[T]he trial judge [is] not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by [the defendant]." Ham v. South Carolina, 409 U.S. 524, 527 (1973). Thus, in cases where the issue of the prospective jurors' racial prejudice is material, the crucial circumstance is not whether they are asked any particular questions on the subject but whether their attention is sufficiently drawn to the possibility that some of them may harbor such prejudice toward a black defendant. We think the lengthy remarks of the judge on the subject, reproduced in part in footnote 4, served clearly to "focus the attention of prospective jurors on any racial prejudice they might entertain." Id. at 527. We cannot see how any of the veniremen in this case could have failed to understand that the statutory questions, propounded shortly after those remarks, clearly encompassed racial bias and required a response from any juror who might hold such bias. The judge's remarks pointedly amplified the importance and delineated the broad scope of the statutory questions. While it might have been preferable for the judge to have made specific inquiry (see Commonwealth v. Ross, 363 Mass. 665, 673-674 [1973]), we cannot say that he was required to do so, as his prefatory remarks here accomplished the same objective as specific inquiry would have. See Commonwealth v. Rodriquez, 364 Mass. 87, 92-93 (1973).

2. Cofield filed motions to suppress the photographic, lineup and the in-court identifications of him by the four victims. The judge held an extensive pre-trial hearing which lasted three days and which covered 359 pages of transcript. Cofield's motions were allowed as to the identifications by Paul and David. They were denied as to identifications by Lynne and Mary, and the defendant's exceptions were saved. Those exceptions form the basis of Cofield's additional assignment of error. The judge made detailed findings of fact, which were amply supported by the evidence. His findings included the facts previously related herein and also that the lighting

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at the scene of the first encounter was sufficient to permit the victims to see the faces of the youths without difficulty; that the light came from street lights on nearby Park Drive as well as from a light on a clubhouse at the end of the ball field. He further found that at about 4:30 A.M. on August 15 the victims were taken to the Boston police headquarters, where the officer in charge selected certain drawers from extensive files of police photographs. The four victims divided the drawers equally among them, and each examined about 200 photographs. They were allowed by the officer in charge to remain together and to confer in arriving at an identification. They were instructed to be absolutely positive of any identification made. During the examination of the photographs, Mary picked out a photograph of Cofield from a drawer, showed it to Lynne and asked her, "Does it look like one of them to you?" Lynne responded that it did. Mary then repeated the procedure with Paul and David, who also responded affirmatively. Other photographs were picked out by the victims. As to six of the photographs selected, the victims could not make a positive identification, but they were definite that the photograph of Cofield was that of one of their assailants.

On September 30 a lineup was held which included the defendant Cofield. He was represented by counsel at that time, who provided the stand-ins for the lineup. No objection was made that the stand-ins were dissimilar in appearance to Cofield. Each of the four victims viewed the lineup separately and independently, and each identified Cofield.

Having made those findings, the judge ruled that as to Lynne and Mary the photographic identification procedure was not so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. The judge further ruled on the basis of clear and convincing evidence and in consideration of the totality of the circumstances that the in-court identifications of Cofield by Mary and Lynne were independent of any improper procedures and were therefore valid. He found that the two girls gained certain impressions of Cofield as a result of their being

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raped and robbed and that those impressions were not influenced by any subsequent events. He did not make such findings with respect to the male victims and therefore allowed the motions to suppress any identification by Paul or David.

Much of the defendant's argument on this point is devoted to "pointing out evidence tending to permit findings of fact contrary to those made by the judge." Commonwealth v. McGrath, 361 Mass. 431, 437 (1972). Our duty as an appellate tribunal, however, is not to substitute one set of findings for another but is to determine whether the judge's findings were supported by clear and convincing evidence. Commonwealth v. Frank, 357 Mass. 250, 254 (1970). Commonwealth v. McGrath, supra, at 437. See Commonwealth v. Henley, ante, 564 (1973). We reiterate that they were.

While there are obvious pitfalls in permitting victims to view photographs in each other's presence, the practice is not ipso facto invalid so as to preclude an identification made as a result thereof. See Commonwealth v. Garvin, 360 Mass. 846, 847 (1971); Commonwealth v. Roberts, 362 Mass. 357, 365-366 (1972); United States v. Fitzpatrick, 437 F.2d 19, 26 (2d Cir. 1970). In the case at bar the judge's findings reflect his careful consideration of this procedure and of its possible drawbacks. His decision not to allow identifications by Paul or David illustrates those considerations. The defendant asserts that there is no support in the record for the distinctions drawn by the judge between the identifications made by Paul and David and those made by Lynne and Mary. We disagree. We think the judge's ruling, allowing the girls' identification testimony but not the boys', reflects an abundance of caution on his part and was intended further to insure the fundamental rights of the defendants to a fair trial. There was no error in admitting the identification testimony.

Judgments affirmed.