356 Mass. 724

October 30, 1969

At a trial for murder in the first degree the defendant was found guilty of murder in the second degree of Jesus M. Figueroa and sentenced accordingly. We have reviewed the whole case, mindful of our duty under G. L. c. 278, Section 33E, as amended by St. 1962, c. 453. The defendant concedes that the evidence was sufficient to support the verdict. The defendant's main contention on this appeal is that the judge's attitude toward defence counsel before, during and after trial was characterized by a personal antagonism which was so clearly manifested by critical comments, belittling rebukes and adverse rulings as to constitute a denial of a fair trial and the effective assistance of counsel and to require reversal. [Note 1] A fair reading of the transcript, far from supporting the defendant's contention, suggests that counsel should read, ponder, and perhaps profit from our observations in Commonwealth v. Lewis, 346 Mass. 373 , 378-380, cert. den. sub nom. Lewis v. Massachusetts, 376 U.S. 933. There was no error or inadequacy in the portions of the judge's charge, original or supplemental, dealing with burden of proof, or the credibility of witnesses as affected by records of conviction. The method and extent of a charge to the jury are in the judge's discretion. Commonwealth v. Greenberg, 339 Mass. 557 , 584-585. Commonwealth v. Monahan, 349 Mass. 139 , 171. There was no error in denying the motion to inspect the testimony of the witness Damasco Garcia before the grand jury. The defendant did not contend or offer to show that there was any discrepancy between that testimony and his trial testimony. Cf. Commonwealth v. Doherty, 353 Mass. 197 , 209-210; Commonwealth v. Carita, ante, 132, 140-141.

Judgment affirmed.


[Note 1] Otero's trial counsel did not argue the appeal in this court.


356 Mass. 724

October 30, 1969

Bell's appeals from his convictions on two indictments charging respectively armed robbery and robbery following a trial under G. L. c. 278, Sections 33A-33G, inclusive, are based exclusively upon assignments of error that in-court identifications of him by witnesses were inadmissible under United States v. Wade, 388 U.S. 218, Gilbert v. California, 388 U.S. 263, and Stovall v. Denno, Warden, 388 U.S. 293, all recently discussed in Commonwealth v. Bumpus, 354 Mass. 494 , and Commonwealth v. Cooper, ante, 74. The judge, following an all

Page 725

day voir dire which he ably guided to the significant factors (see United States v. Wade, 388 U.S. 218, 241) concluded that the identifications to be made in court by three of the witnesses were based on observations made by them at the time of the robberies independent of any confrontation after the robberies. Assuming, arguendo, that the pre-trial identifications made by the witnesses were constitutionally infirm, our consideration of the evidence heard by the judge at the voir dire which we deem to be "clear and convincing" (see United States v. Wade, at 240) satisfies us "beyond a reasonable doubt" (see United States v. Wade, at 240) satisfies us "beyond a reasonable doubt" (see Chapman v. California, 386 U.S. 18, 24) that the judge's conclusion was right. Commonwealth v. Cooper, ante, 74, 84-85, and cases cited.

Judgments affirmed.