Home COMMONWEALTH vs. FRED WELLS.

360 Mass. 846

September 29, 1971

In 1967, Wells was found guilty by a judge sitting without jury on each of eleven indictments for various sex offences, some involving children. After our decision in Commonwealth v. Marshall, 356 Mass. 432 , Wells, while serving substantial sentences, filed a petition, dealt with as a motion for new trials, essentially alleging that at his trial the general public, witnesses, and friends were excluded (G. L. c. 278, Section 16A) from the court room. This motion, heard under G. L. c. 278, Sections 33A-33G, was denied. Wells had retained as trial counsel Mr. Kent B. Smith, a lawyer with long experience in criminal cases. See Smith, Criminal Practice and Procedure, Section 1031 (where, even before the Marshall decision, the author construed G. L. c. 278, Section 16A, as it was later construed in that case). This lawyer (with Wells' permission) testified at the hearing on the new trial motion (a) that witnesses were sequestered from one another at his request, and (b) that Wells had not asked him to arrange to have particular available persons, friends, or relatives present at the trial. This record shows no request to the trial judge on the subject, and no saving of any exception. No claim of appeal from the judgments was made. In the Marshall case, due request was made at trial to admit Marshall's family and friends. Here the issue first was raised on a motion for new trial. In the circumstances, there was no improper denial of any right of Wells to a public trial (under the Sixth Amendment to the United States Constitution) by the proceedings at trial in which Wells and competent counsel acquiesced. See Melanson v. O'Brien, 191 F. 2d 963, 965 (1st Cir.); Wigmore, Evidence (3rd ed.) Section 1835 (1). See also Commonwealth v. Needel, 349 Mass. 580 , 581.

Order denying new trials affirmed.

Home COMMONWEALTH vs. KENNETH GARVIN.

360 Mass. 846

September 29, 1971

On indictments for assault on Jacqueline Dias with a dangerous weapon with intent to rob her and armed robbery, a motion to suppress a pre-trial photographic identification by Mrs. Dias was denied. Her subsequent in-court identification of Garvin was admitted. The judge's wholly warranted detailed findings and certain evidence are summarized below. Mrs. Dias lived in a first floor apartment. The second floor was occupied by Mrs. Elizabeth Moore, whose daughter Sylvia Magee was visiting her on March 29, 1970. Garvin about 11:30 that night was at the second floor apartment. About midnight

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he left. Two males left just before him. About midnight a man with an "Afro hairdo" entered Mrs. Dias's lighted bedroom, and threatened her with a screwdriver. She heard other persons in a front room leave with her television set. She ran upstairs. Sylvia called the police. When Mrs. Dias described her assailant, Sylvia said, this sounds "like someone that just left my [mother's] apartment." About 1 A.M., Mrs. Dias and Sylvia, at the police station, went over 200 to 300 pictures in cabinets. Police officers were not near them but were at a desk ten to fifteen feet away. Sylvia picked out a picture and said that the subject had been in her mother's apartment that night. Mrs. Dias said, "This is the man that I'm looking for except he has this new hairdo now . . .." The picture was of Garvin. No police officer directed their attention to any particular picture. Mrs. Dias told the police at her apartment and later testified that she had seen the intruder before and would recognize him again. At trial Mrs. Dias identified Garvin as her assailant and was definite in her testimony that she needed no assistance in picking out Garvin's picture and was not in doubt about her identification. There was no State or police action which induced the identification. In our opinion (a) the photograph selection was not improper under standards outlined in Simmons v. United States, 390 U.S. 377, 382-386; and (b) the judge reasonably decided that Mrs. Dias's in-court identification was independent of pre-trial procedures and "beyond a reasonable doubt . . . [was] not tainted . . . by . . . [Sylvia's] remarks."

Judgments affirmed.