5 Mass. App. Ct. 792

March 8, 1977

1. There was overwhelming physical and circumstantial evidence of the defendant's guilt which was completely independent of either of the in-court identifications which the defendant sought to suppress, and we are satisfied beyond a reasonable doubt that the defendant was not harmed by either of those identifications. Monteiro v. Picard, 443 F. 2d 311, 313-314 (1st Cir. 1971), cert. den. 404 U.S. 1041 (1972), and cases cited. 2. As we read the transcript, the defendant expressly waived any point he might have had concerning the admissibility of his confession at the police station, very likely because he had decided to testify (as he subsequently did) that the confession was a fabrication on the part of the police. 3. We find it unnecessary to decide any question whether the defendant was deprived of some constitutional or other right by the prosecution's apparently inadvertent (compare Commonwealth v. Roberts, 362 Mass. 357 , 362-363 [1972]) failure to comply with the pretrial order for the disclosure of the oral statements the defendant had made to the police at the time of his arrest. See Commonwealth v. Dabrieo, 370 Mass. 728 , 742-744 (1976); Commonwealth v. Colon, ante, 775, 776 (1977). The defendant voiced no objection when the assistant district attorney advertised the existence of those statements in her opening remarks to the jury (contrast Commonwealth v. Johnson, 365 Mass. 534 , 548 [1974]) and announced her intention to offer the statements in evidence; no objection was voiced when the statements were actually offered and received in evidence. The judge was not required to believe that the considerable delay in moving for a mistrial was explained by surprise on the part of counsel for the defendant. In any event, we see no likelihood that the verdict on the robbery indictment (the other indictment was placed on file) was affected by any of the statements in question. See Commonwealth v. DeChristoforo, 371 Mass. 26 , 35-36 (1976).

Judgment affirmed.


5 Mass. App. Ct. 792

March 9, 1977

The order of July 3, 1975, in so far as it adjudges the defendant to be in contempt of court, must be reversed, not because the judge could not properly found such a decree on representations of counsel in the absence of objection to such a procedure (see Sodones v. Sodones, 366 Mass. 121 , 127 [1974]; Milano v. Hingham Sportswear Co. Inc. 366 Mass. 376 , 378-379 [1974]), but because the representations of counsel,

Page 793

which are before us, afforded no basis for a finding that the defendant refused to pay the judgment despite an ability to do so. Contrast Sodones v. Sodones, 366 Mass. at 130. An essential element of civil contempt is the defendant's ability to comply with the court's order. Stuart v. Stuart, 123 Mass. 370 , 371 (1877). Milano v. Hingham Sportswear Co. Inc. 366 Mass. at 378. On general principles, the burden of proof on that issue was on the plaintiff (United States Time Corp. v. G.E.M. of Boston, Inc. 345 Mass. 279 , 282 [1983]), and the burden was not met by stipulation, evidence, or otherwise. To be contrasted are cases where the allegedly violated order itself implies an adjudication that the defendant was at that time able to comply, thus constituting evidence of, or establishing a prima facie case of, present ability to comply which the defendant may be required to rebut. See, e.g., Maggio v. Zeitz, 333 U.S. 56, 75 (1948) (order to turn over property to another); Sodones v. Sodones, supra (order to pay alimony); State on complaint of Cook v. Cook, 66 Ohio St. 566, 570 (1902) (same); In re S.L.T. 180 So. 2d 374, 379 (Fla. Dist. Ct. App. 1965) (order to pay child support). A simple order or judgment for the payment of money does not, of course, carry any implication of ability to pay. No question is raised with respect to the second numbered paragraph of the order. The first numbered paragraph is to be struck from the order, and the remainder is affirmed.

So ordered.