COMMONWEALTH vs. STEPHEN B. JONES.

GREANEY, J. On August 31, 1978, at approximately 9:00 A.M., an apartment in Roxbury was entered by a black male wearing a ski hat with a nylon stocking partially covering his face. This male proceeded to rape, rob and severely beat the apartment's occupant, a fifty-seven year old woman. As he left, the assailant set fire to the apartment. Stephen B. Jones was subsequently indicted for seven major crimes. [Note 1] He filed a pretrial motion to suppress out-of-court and proposed in-court identifications by the victim. [Note 2] Following a hearing at which the victim and a police detective testified in detail, a Superior Court judge made findings and rulings and ordered the identifications suppressed. The Commonwealth was permitted an interlocutory appeal (G. L. c. 278, Section 28E), and that appeal has been transferred here (G. L. c. 211, Section 4A). We reverse.

The following is a summary of the relevant evidence at the hearing on the motion. Shortly after the crimes had occurred, Detective Emmet F. McNamara, attached to District

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2, received information that the assailant was a black male, in his twenties, about five feet ten inches tall, weighing approximately 150 pounds and wearing a striped ski hat. [Note 3] At the scene the detective ascertained the assailant's escape route down a nearby dirt road. On the road a ski hat containing a rolled up lady's stocking was discovered. A closer look at the hat revealed a piece of tape inside bearing the printed name of Stephen Jones. Pursuing this lead, the detective ascertained that two black males with the name of Stephen Jones, one of whom was the defendant, lived in the vicinity of the victim's apartment. A visit to the victim at the hospital produced a positive identification of the ski hat as that worn by her assailant ("That's the hat"), and an identification of the stocking as resembling the one covering her attacker's face. The demonstrative tape in the hat was not brought to the victim's attention, nor did she independently observe it when she examined the hat. The detective next assembled several mugshot photographs of black males for viewing by the victim. The defendant's picture was not among this array; a photograph of the other Stephen Jones was. She rejected all the photographs and in particular rejected the photo of the other Jones as "too dark skinned."

Prime attention now focused on the defendant. Upon discovering that he had once held a hackney license, the detective assembled a new array consisting of seven hackney licenses owned by black males, including one belonging to the defendant. This gallery was shown to the victim on September 8, 1978, at her son's apartment. She positively and unequivocally identified the picture on the defendant's license as that of her assailant [Note 4] ("This is the man"). During

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this viewing the detective avoided mention of the defendant's name and eschewed any action, gesture or comment that might tend to highlight or distinguish the defendant's license from the other six. The victim was also not made privy to information that the defendant had been interviewed at the police station and had supplied handwriting and hair samples for expert analysis.

Following release from the hospital, the victim went to live with her son, a Boston police officer. Although he knew that the defendant was a suspect and that Jones' picture would be among the second array, his mother testified that no communications had ever been exchanged between them as to either fact. During the procedure that produced the identification, the son was dispatched to the kitchen by Detective McNamara, where he could see what was going on but could not comment thereon. [Note 5]

The victim testified that the criminal incidents spanned a thirty to forty-five minute period during which she viewed the attacker's face at a distance for ten to fifteen minutes, [Note 6] and close up for five to ten minutes in the light of a nearby bedroom table lamp. Her description of the assailant before the judge was quite full -- he was a black male, five feet nine to five feet ten inches tall, [Note 7] with brownish eyes wearing a white tee shirt, beige pants, blue sneakers and a

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blue ski cap with yellowish stripes. She particularly emphasized that her attacker was a light skinned Negro person with "big lips" and a "big nose." She repeated that her positive identification of the hat was without knowledge or sight of the name inside. The defendant's name meant nothing to her, and she firmly disclaimed that any efforts, direct or indirect, had been made by the police or her son to alert her to the defendant's status in the investigation or otherwise to steer her to his picture in the second display. [Note 8]

Her courtroom identification wavered. She was first "sure" that the defendant was her assailant because of his eyes; then she testified that the defendant "looks like him," "something like him" or "resembles him." At other junctures in her examination she testified that she recognized the defendant because he was in the dock, that she was unsure about his eyes, and that she was "doubtful now."

Based essentially on this evidence, the judge found that the victim did not have an adequate opportunity to view her attacker so as to fix his features in her mind. He found that, because the victim had been living with her son after the attack and because the son had some knowledge of the investigation's progress, a substantial likelihood existed that the defendant's identity had been communicated to the victim in advance of her selection of the picture. He determined that the photographic identification procedure was impermissibly suggestive because of this assumed preknowledge on the victim's part and because the defendant's name was conspicuous on the face of the license when "none of the other photographs had any identification on them." The judge ultimately concluded that the out-of-court identification was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification and that the in-court

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identification was based on the defendant's presence in the dock without an authenticating independent source.

In the context before us, a challenge to identifications as constitutionally suspect requires at the outset a showing by the defendant that the witness was subjected by the police to a pretrial confrontation, "`so unnecessarily suggestive and conducive to irreparable mistaken identification' as to deny the defendant due process of law." Commonwealth v. Venios, 378 Mass. 24, 27 (1979), quoting from Commonwealth v. Botelho, 369 Mass. 860, 865-868 (1976). The factual search for unnecessary suggestiveness is to be made in light of "the totality of the circumstances" surrounding the questioned procedure. Stovall v. Denno, 388 U.S. 293, 302 (1967). Our function in review of this type of case is to consider whether the evidence supports the judge's findings of fact, due respect being accorded to his superior opportunity to observe and weigh the testimony; then we are to ascertain whether the findings justify the judge's decision in law. [Note 9] Commonwealth v. Murphy, 362 Mass. 542, 547 (1972). Commonwealth v. Stanley, 363 Mass. 102, 104 (1973). Commonwealth v. Botelho, 369 Mass. 860, 868 (1976).

With respect to the victim's photographic identification on September 8, 1978, the judge ruled that the procedure employed was impermissibly suggestive. That ruling in

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turn is essentially derived from three groups of factual findings which may be summarized as follows: (1) that the police presented the seven-license array with only the defendant's license and none other bearing the conspicuous display of a name; (2) that during the viewing the victim's son was close enough to observe what was going on (suggesting but not finding that he subliminally guided her choice); and (3) that it was quite probable that the victim's son had advised his mother that the defendant was her assailant and that the defendant's photo would be seen in the spread. These findings are critical to the judge's ultimate result; none receives adequate support in the evidence. [Note 10]

As to the first, we have before us all seven hackney licenses used in the array. They all identically display the pictures of black males on a small standardized card. Each also contains the logos of the Boston police department and the city, the typewritten name and address of the licensee, his signature, the license number and its expiration date. All seven licenses are precisely the same in form and the whole array is a fair, nonsuggestive display of individuals basically similar in features, ages and general appearance. There is nothing in the composition of the display which tends to dramatize the defendant or to single out his license or picture from the others. The array was assembled with a circumspect eye and appears impartial. See United States v. Lustig, 555 F.2d 737, 749 (9th Cir. 1977), cert. denied, 434 U.S. 1045 (1978) (array of four or five photos shown to officers without indication of which was suspect not impermissibly suggestive); United States v. Medico, 557 F.2d 309,

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311 (2d Cir.), cert. denied, 434 U.S. 986 (1977) (showing eight photos of white men to each of three witnesses and asking if they recognized any as the robber not suggestive); United States v. Collins, 559 F.2d 561, 563 (9th Cir.), cert. denied, 434 U.S. 907 (1977) (photo array of six with subjects of similar age and like hairstyles not impermissibly suggestive). We therefore conclude that the judge's finding that the defendant's license was conspicuous because it displayed his name when the others did not is clearly erroneous.

The second and third groups of findings are joined for discussion. The judge arrived at them apparently by disbelieving major portions of the testimony of the police detective and the victim to the effect that the defendant had not been selectively targeted for display, and that she had not seen the name in the ski hat, and by concluding from the circumstantial evidence of the son's knowledge of the investigation and his common residence with his mother that she had been advised that the defendant was a suspect and that she had been told to anticipate the presence of the defendant's picture in the group by watching for his name.

Disbelief of the testimony of the victim and Detective McNamara alone would be an unjustified basis for the findings. The substantially uncontradicted testimony of these two witnesses -- the only witnesses who testified at the hearing -- establishes that the gallery was fairly selected as part of an ongoing process of police investigation and that the victim's ultimate selection of the defendant's picture was the product of her independent choice. There was not a shred of material evidence that her selection was influenced in any way by her son [Note 11] or by any other police officer, and the only evidence in the record as to any knowledge on her part of the defendant's name was that it was disclosed to her for the first time at the grand jury hearing. The judge was not obligated to give credit to this uncontradicted testimony. But it is well settled that "[m]ere disbelief of testimony is not proof of facts of an opposite nature or tendency"

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(McDonough v. Vozzela, 247 Mass. 552, 558 [1924]), and that "such disbelief [will] not be [the] equivalent of proof to the contrary." Carmichael v. Carmichael, 324 Mass. 118, 121 (1949). Commonwealth v. Mahnke, 368 Mass. 662, 691 (1975) (judge may reject proffered testimony because he does not find it credible, but nonetheless his finding of the reverse must be supported by other relevant evidence).

Nor does the circumstantial evidence warrant the judge's conclusions. Although the process of drawing inferences is capable of bridging many gaps in the proof, the line must be drawn between permissible deduction and unwarranted suspicion. As Chief Justice Shaw classically stated in 1850 in Commonwealth v. Webster, 5 Cush. 295, 312 (1850), "great care and caution ought to be used in drawing inferences from proved facts . . . [and any inference drawn] must be a fair and natural, and not a forced or artificial conclusion . . . ." See also Commonwealth v. Bonomi, 335 Mass. 327, 355-356 (1957), and cases cited. All of the evidence in this case pointed to the absence of any corrupting suggestiveness. It does not therefore logically and permissibly follow that because the son, a Boston police officer, permitted his mother to live with his family after the crimes and knew of the general progress of the investigation and the purpose of the second photographic display that he forewarned his mother that the defendant's picture would be in the group. We conclude that the judge made an improper leap of reasoning from inadequate data, and that the circumstantial facts are insufficient to forge a chain of inferences supportive of his ultimate conclusions.

The failure of the defendant to pass the threshold in establishing a constitutional deficiency in procedures is fatal to his claim. Commonwealth v. Chase, 372 Mass. 736, 745 (1977). Because he has failed to meet his burden, there is no need to analyze extensively the evidence to see if the identifications are rooted in an independent source or whether they remain convincing after an application of the "reliability" formula developed in Manson v. Brathwaite, 432 U.S.

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98, 114 (1977). Suffice it to say that under either standard they remain constitutionally acceptable. [Note 12]

With respect to the proposed in-court identification we find, again looking to the totality of the circumstances (Manson v. Brathwaite, 432 U.S. 98, 106 n.9 [1977]), that the judge's conclusion declaring it unreliable is clearly wrong. At no time did the victim firmly renounce her selection. Vigorous questioning in the nature of cross-examination brought her from a state of certainty to one of some doubt. To be sure the defendant's presence in the dock was an unsettling influence on her. See generally Commonwealth v. Moore, 379 Mass. 106, 107-111 (1979). But the evidence does not support the conclusion that his situation in the box was the sole ground of the identification. She was thrown off to some extent by the fact that the defendant in the courtroom was bearded and her assailant's eyes appeared more "slurred" than the defendant's because of the use of the stocking mask. The goal of the process does not require extirpation of all appearances of doubt. The goal is to ensure that the accused receives a fair trial by not being exposed to an identification which is inherently unreliable or which derives from governmental misconduct at its inception. Commonwealth v. Wheeler, 3 Mass. App. Ct. 387, 392 (1975). Because the prohibited line of substantial likelihood of irreparable misidentification was not passed in this case it therefore remained "for the jury to decide how

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much weight to attach to [this] identification[], as well as to the [out-of-court identification] when they were admitted at trial." Commonwealth v. Cincotta, 379 Mass. 391, 397 (1979). See also Commonwealth v. Botelho, 369 Mass. at 866; Commonwealth v. Funderberg, 374 Mass. 577, 582 (1978); Commonwealth v. Jones, 375 Mass. 349, 355 (1978); Commonwealth v. Rodriguez, 378 Mass. 296, 308 (1979).

Finally, we have been mindful throughout of the judge's finding that the victim did not project herself before him as a person of strong independent mind. In a close or doubtful case, where impermissibly suggestive practices are present and the burdens of proof are implicated, such an observation might carry the day. But that observation's linkage with the erroneous conclusions on the suggestiveness question and its over-all disharmony with the bulk of the evidence require that it be rejected as a decisive force in the analysis.

The order suppressing the identifications is reversed.

So ordered.