Home COMMONWEALTH vs. ARNOLD JACKSON (and a companion case).

359 Mass. 742

April 1, 1971

The defendant appeals under G. L. c. 278, Sections 33A-33G, and assigns as error the denial of his motion for a new trial following his convictions in the Superior Court in a jury waived session on charges of assault and battery with a dangerous weapon, and armed robbery. The police had arrested the defendant about four weeks after the robbery and brought him to the Municipal Court of the Dorchester District for arraignment, where the victim identified him in the dock. The sole ground argued to us is that this pre-trial identification was constitutionally defective and should not have been admitted in evidence, and that it fatally tainted the victim's in-court identification of the defendant. Both the pre-trial identification and the trial occurred before the decisions in United States v. Wade, 388 U.S. 218, and Gilbert v. California, 388 U.S. 263. Under Stovall v. Denno, 388 U.S. 293, 302, the pre-trial identification may be attacked only if on "the totality of the circumstances surrounding it" it was "so unnecessarily suggestive and conducive to irreparable mistaken identification that . . . [the defendant] was denied due process of law." In applying this principle, we have held that "an identification by a witness to a crime, without the presence of counsel, is admissible in evidence if reasonable in the light of all the circumstances." Commonwealth v. Connolly, 356 Mass. 617 , 624. The identification here satisfied that requirement. No police bias is suggested in the identification procedure. The victim was simply asked if he could identify anyone in the court room. Commonwealth v. Bumpus, 354 Mass. 494 , 500. Commonwealth v. Sullivan, 354 Mass. 598 , 605. Commonwealth v. Kazonis, 356 Mass. 649 , 652. Federal cases have sustained pre-Wade identifications made at preliminary hearings against similar due process challenges. United States v. Lipowitz, 407 F. 2d 597, 599 (3d Cir.). United States v. Davis, 407 F. 2d 846, 847 (4th Cir.). Clemons v. United States, 408 F. 2d 1230, 1240, 1249 (Ct. App. D. C.). Finally, the victim at the trial emphasized the opportunity which was his before he was assaulted and robbed to observe the men involved, including the defendant whom he saw subsequently at the Municipal Court of the Dorchester District.

Judgments affirmed.

Home GERALD R. ARCHAMBAULT vs. ALFRED R. WILLIAMS & another.

359 Mass. 742

April 2, 1971

This is a tort action in which the plaintiff seeks to recover for injuries sustained while walking on a private way allegedly in the control of the defendants. The case was heard by a judge of the Superior Court on an "Agreed Statement of Facts." The judge in effect ordered judgment for the defendants and the plaintiff appealed. The plaintiff was a business and social guest of a third party who had been granted an easement by the defendants over the way on which the plaintiff was injured. The plaintiff does not stand in any better position than the holder of the easement. It is a well settled

Page 743

legal principle that no obligation is imposed on the grantor of an easement to maintain or repair the land placed in servitude. See Prescott v. Williams, 5 Met. 429 , 435. The plaintiff, in essence, asks us to change this general rule. We see no reason to do so.

Order for judgment affirmed.