3 Mass. App. Ct. 708

February 14, 1975

The defendant appeals under G. L. c. 278, Sections 33A-33G, from convictions of unnatural acts on a child under sixteen and indecent assaults and batteries on a child under fourteen. The sole question presented is whether there was error in permitting the victim to identify the defendant at the trial as his assailant, notwithstanding an allegedly impermissibly suggestive out-of-court photographic identification which was suppressed. After a voir dire on the motion to suppress, the judge made detailed subsidiary findings from which he concluded that "the in-court identification was not tainted by such photographic identification and was wholly independent of the photographic identification and was based on the boy's clear and independent memory of his observations of his assailant at the time of the alleged assault." There was clear and convincing evidence which tended to show that the victim had ample opportunity to observe his assailant in daylight and was able to provide the police with an exceptionally detailed description of his assailant and which supported the judge's subsidiary findings. "[S]uch careful findings supported by the evidence . . . are not likely to be disturbed by us." Commonwealth v. Frank, 357 Mass. 250, 254 (1970). Commonwealth v. Murphy, 362 Mass. 542, 547-548 (1972). Commonwealth v. Henley, 1 Mass. App. Ct. 564, 567 (1973). Commonwealth v. Cofield, 1 Mass. App. Ct. 660, 667 (1974).

Judgments affirmed.


3 Mass. App. Ct. 708

February 24, 1975

There was no error in the denial of the motion for a directed verdict on the indictment for possession with intent to distribute. Passing the question whether the motion was sufficiently specific to raise the points now argued in the defendant's brief (see Commonwealth v. Kalinowski, 360 Mass. 682, 686 [1971]), it was for the jury to say whether the defendant had acquired the seventy-three bags of heroin (1) for the purpose of catering to his own (agreed upon) addiction or (2) for the purpose of distributing them to persons such as (a) the three individuals with track marks on their arms whom the defendant had cautiously admitted to the building in question for brief periods (two to five minutes) during the four-day period preceding the day of the search and arrest or (b) the individual similarly admitted by the defendant on the day prior to the search and arrest who discarded a bag of heroin as a police officer pursued him away from the building. Compare Commonwealth v. Ellis, 356 Mass. 574, 578-579 (1970); Commonwealth v. Kinnitt,

Page 709

2 Mass. App. Ct. 810, 811 (1974); Commonwealth v. Baltrop, 2 Mass. App. Ct. 819, 820 (1974). There is nothing to the contrary in Commonwealth v. Croft, 345 Mass. 143, 144-145 (1962).

Exceptions overruled.