5 Mass. App. Ct. 875

October 18, 1977

The defendant appeals (G. L. c. 278, Sections 33A-33G) from convictions on two counts of an indictment charging him with rape. His sole assignment of error concerns the judge's charge to the jury; the defendant argues that the judge "repeatedly stressed facts which conveyed to the jury his belief in the credibility of the Commonwealth's principal witness [the victim]." The only issue was the reliability of the victim's identification of the defendant; and the judge marshalled to the jury in great detail the evidence which bore on that issue -- both favorable and unfavorable to the defendant. In a detailed charge "[i]nevitably there will be emphasis by selection and by reference" and it may, as in this case, become a close question whether it is primarily the facts of the case properly marshalled which will be speaking to the jury without the injection of the personal views of the judge. Commonwealth v. Ferguson, 365 Mass. 1 , 10-11 (1974). A detailed analysis of the charge can serve no useful purpose. It reflects the overwhelming evidence indicating the reliability of the identification and thus may appear weighted against the defendant. The two specific objections which the trial counsel made to the charge and which the defendant mentioned in the argument in his brief are not persuasive when the fragments to which he points are viewed in context and in light of the entire testimony, which we have carefully examined. We are not convinced that the judge exceeded his powers -- bearing in mind that "we are here discussing matters which more often than not require decision by the judge without opportunity for deliberation." Commonwealth v. Hanscomb, 367 Mass. 728 , 733 (1975) (Hennessey, J., concurring). Compare Commonwealth v. Foran, 110 Mass. 179 , 180 (1872);

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Cahalane v. Poust, 333 Mass. 689 , 694 (1956); Commonwealth v. Borges, 2 Mass. App. Ct. 869 (1974); Commonwealth v. Cote, ante, 365, 369-370 (1977).

Judgment affirmed.