Home COMMONWEALTH vs. RONALD S. TETA.

358 Mass. 814

January 28, 1971

Miss Mary C. Erasmi was walking on a well lit street in Dedham at dusk (6:30 P.M.) on March 10, 1969. A young man came up behind her, grabbed her parcel, and ran. At a distance which the evidence showed to be between twenty-five and 168 feet from her, he turned. She saw his face for "just a second or two" and promptly described her assailant to the police. On March 15, through a one-way window at the police station, she identified Teta who wore a black leather jacket, like that of her assailant. He was with three or four other people, including an officer, Teta's father, and one or two other men. Teta had no counsel present. Miss Erasmi identified him again in the District Court two days later and at trial on October 9, 1969. The trial judge properly suppressed the highly suggestive police station identification. Stovall v. Denno, 388 U.S. 293, 301-302. He refused to suppress the District Court identification. The trial judge made no express finding (as recommended in Commonwealth v. Frank, 357 Mass. 250 , 254, decided after Teta's trial) whether Miss Erasmi's in-court identification (to which no exception was saved when it was introduced, see Commonwealth v. Theberge, 330 Mass. 520 , 527) had basis independent of the suppressed police station identification. See United States v. Wade, 388 U.S. 218, 239-242; Cooper v. Picard, 428 F. 2d 1351, 1354 (1st Cir.), S.C. 316 F. Supp. 856 (D. Mass.). Testimony at trial cast serious doubt on Miss Erasmi's estimates of the distance at which she saw briefly her assailant's face. Under Rule 101B of the Superior Court (effective June 1, 1965) the judge need not have entertained (at the close of the evidence) Teta's effort to "renew" his motion to suppress. To its original partial denial there had been no exception. The judge, however, as matter of discretion, did entertain the renewed motion. He denied it subject to Teta's exception. See Commonwealth v. Cooper, 356 Mass. 74 , 77-85. Teta was found guilty of unarmed robbery. In the absence of specific findings by the trial judge on the issue, we entertain grave doubt whether there could be found to be independent basis for her in-court identification. See Commonwealth v. Guillory, 356 Mass. 591 , 593-594; Commonwealth v. Kazonis, 356 Mass. 649 , 651, 653, also decided after Teta's trial. We reverse the judgment to avoid possible miscarriage of justice. The verdict is set aside.

So ordered.

Home COMMONWEALTH vs. HARRY L. MCGRATH.

358 Mass. 814

January 28, 1971

This indictment charges the defendant and others with assault and battery by means of a dangerous weapon, a shoe. The indictment was tried before a jury together with indictments charging robbery and assault with intent to rape. The defendant was found guilty of assault and battery with a dangerous weapon and not guilty of robbery. He was found guilty of so much of the

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indictment charging assault with intent to rape as charged simple assault, and the indictment was placed on file. The case is here on the defendant's exceptions. He claims it was error to exclude from evidence the police journal which he offered to impeach the victim's testimony "by prior inconsistent statements." She had testified that she knew the defendant and one of the codefendants and had met another codefendant on the day in question. The police journal stated that she had been assaulted by "three unknown white males." However, police Sergeant Celona was called as a witness by a codefendant and was questioned by the defendant. He testified that he conducted the investigation and had talked with the victim on the night in question; that "she wasn't in a condition to describe coherently what actually took place regarding the attack"; that she did not give him "the names of any of the people involved" or "any indication as to whether they were known or unknown to her." He also stated that the entry in the journal was made by another police sergeant who had reduced to writing "a report" by Celona. Even if we assume that it was error to exclude the journal, it would have been merely cumulative and its exclusion was not prejudicial. See Commonwealth v. Palladino, 346 Mass. 720 , 722-723. The defendant's other contention is that it was error to admit the testimony of a person to whom the victim had spoken shortly after the alleged attack. The defendant argues that this "was hearsay and admissible neither as res gestae of the attack nor as fresh complaint." The victim testified to substantially the same facts. We are of opinion that the testimony objected to was merely cumulative and, even if its admission was erroneous, it was not prejudicial.

Exceptions overruled.