COMMONWEALTH vs. EVERETT MENDES.

TAURO, C.J. The defendant Everett Mendes appeals under G. L. c. 278, Sections 33A-33G, from a conviction on an indictment for armed robbery.

The defendant assigns as error (1) the failure to suppress evidence of the defendant's identification at a lineup; (2) the failure to suppress his in-court identification; (3) the failure to suppress his clothing and related testimony; (4) the failure to suppress a gun found in an automobile in which he was riding at the time of his arrest for an unrelated offence; and (5) the denial of his motion for a mistrial on the wrongful admission in evidence of the gun and on the wrongful admission of evidence of irrelevant matters and other crimes.

The evidence pertinent to these issues is as follows. On June 30, 1970, at approximately eight o'clock in the evening, a man entered the F & A Liquor Store in Fall River and asked the owner, William A. Ryding, for a package of cigarettes. As Ryding was ringing up the sale, the man displayed a pistol and demanded the money in the

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register. Ryding gave him approximately $41 and was then ordered into the back room. The store was well lighted. Ryding was able to observe the robber for a period of approximately two minutes and shortly afterward described him to the police as a tall white man, with dark hair and wearing dark glasses, a tan sweater and tan pants.

On July 4, 1970, Ryding viewed "mug shots" at the police station but was unable to make an identification. No evidence was introduced on whether the defendant's picture was included. On July 30, Ryding, at the request of Lieutenant Campos, went to the Fall River police station where the lieutenant told him, "I think we have the man that held you up." Ryding was then escorted into a room where eight men, including the defendant, were standing. After being asked to look the lineup over "carefully," although at first indicating some uncertainty, Ryding identified the defendant as the robber. The next day Ryding again visited the police station where he identified certain items of clothing, which had been taken from the defendant's sister's home, as those worn by the robber.

1. The defendant argues that the trial judge's failure to suppress evidence of the lineup identification in the absence of counsel was constitutional error. Lieutenant Campos previously had given Mendes the Miranda warnings. However, these "`did not encompass the information contemplated under' United States v. Wade, 388 U.S. 218." [Note 1] Commonwealth v. Guillory, 356 Mass. 591, 593. See Commonwealth v. Cooper, 356 Mass. 74, 83. Compare Commonwealth v. Preston, 359 Mass. 368, 373. The police, contrary to well established law which we are

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required to apply, did not inform the defendant of his right to counsel at the lineup, and in these circumstances the defendant could not make a knowing and intelligent waiver of his Wade rights. Commonwealth v. Cooper, supra, at 83. [Note 2] See Commonwealth v. Preston, supra, at 373. Cf. Miranda v. Arizona, 384 U.S. 436, 475, citing Johnson v. Zerbst, 304 U.S. 458, 464. We conclude therefore that the lineup was illegal and that the lineup identification should have been excluded. Gilbert v. California, 388 U.S. 263, 272-274. Since the present record discloses no circumstance which would warrant "a belief that it [evidence of the lineup identification] was harmless beyond a reasonable doubt" (Gilbert v. California, 388 U.S. 263, 274, citing Chapman v. California, 386 U.S. 18, 24; see United States v. Wade, 388 U.S. 218, 242), [Note 3] this court must reverse the judgment of the Superior Court.

It is assumed that, in the event of a new trial, evidence of the illegal lineup identification will be excluded. Since there may be a new trial, we will now consider the defendant's other contentions.

2. We turn first to the defendant's contention that his in-court identification by Ryding was inadmissible on the

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ground that it was tainted by the prior illegal lineup identification procedure. It is well settled, however, that the mere fact that an illegal identification has occurred (but been suppressed as evidence at the trial) does not necessarily preclude the same witnesses from making valid in-court identifications. Indeed, the witness may identify the defendant at trial, provided that the Commonwealth establishes "by clear and convincing evidence that the in-court identifications . . . [are] based upon observations of the suspect other than the lineup identification." United States v. Wade, 388 U.S. 218, 240. See Commonwealth v. Robinson, 355 Mass. 620, 621-622; Commonwealth v. Cooper, 356 Mass. 74, 84; Commonwealth v. Tempesta, ante, 191, 195; Commonwealth v. McGrath, ante, 431, 437-438.

The original record in this case was not satisfactory as to this issue. [Note 4] In the event of a new trial, complete and detailed findings by the trial judge are required to support a conclusion that the in-court identification was independent of and not tainted by the illegal lineup identification. "Wade listed six inquiries. (1) The extent of the witness' opportunity to observe the defendant at the time of the crime; prior errors, if any, (2) in description, (3) in identifying another person or (4) in failing to identify the defendant; (5) the receipt of other suggestions, and (6) the lapse of time between the crime and the identification. The first factor seems the most important. Clearly the firmer the contemporaneous impression, the less is the witness subject to be influenced by subsequent events." Allen v. Moore, 453 F. 2d 970, 975 (1st Cir.). See United States v. Wade, supra, at 241. Because of the dangers inherent in subsequent suggestions (see Stovall v. Denno, 388 U.S. 293), however, the judge

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should in any event hear evidence upon, and take into account in his conclusion, what influence, if any, the illegal pre-trial confrontation between the witness and the defendant has had upon the witness's prior recollection of the defendant from the time of the crime. Cooper v. Picard, 428 F. 2d 1351 (1st Cir.), S. C. 316 F. Supp. 856, 859 (D. Mass.). See Commonwealth v. McGrath, ante, 431, 436-437.

3. The defendant argues that the admission in evidence of his clothing taken from his sister's home was error. The defendant's sister testified at a voir dire hearing that, while at the police station, she answered in the affirmative to a question on whether the defendant had any clothes at her home, and that Lieutenant Campos said, "Well, I can get a search warrant to get them, you know. . . . Otherwise you can just give them to me" and that she replied, "You don't need no search warrant. . . . It's not necessary." She then gave her consent in writing [Note 5] and was driven to her home by a police officer. The defendant's clothes were packed into a suitcase by the defendant's sister and they returned to the police station where Lieutenant Campos opened the suitcase and removed the tan sweater and trousers which were later identified by the victim and introduced in evidence over the defendant's objection. At the voir dire, the sister testified that she had acted voluntarily both in accompanying the police officer to her house and in delivering her brother's clothes to him.

Where there is a question of consent in a search and seizure, the test to be applied is stated in Bumper v. North Carolina, 391 U.S. 543, 548: "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given." See Commonwealth v.

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Campbell, 352 Mass. 387, 401; Amos v. United States, 255 U.S. 313, 317; Judd v. United States, 190 F. 2d 649 (D. C. Cir.). Here, the defendant was a guest in his sister's home while he was on vacation from California. On the record before us, it clearly appears that the sister acted voluntarily in securing her brother's clothing from the closet for the police. See Coolidge v. New Hampshire, 403 U.S. 443, 487-490. Commonwealth v. Martin, 358 Mass. 282, 285. Commonwealth v. Appleby, 358 Mass. 407, 411. Furthermore, there was no evidence that the closet in which the clothes were kept was for the exclusive use of the defendant. Compare United States v. Poole, 307 F. Supp. 1185, 1187-1190 (E. D. La.) (where the overnight bag searched belonged to the defendant and was merely entrusted to another for storage). [Note 6] We are satisfied that the sister had at least equal control of the closet. In the circumstances, she could properly consent to the search of the closet and the seizure of the clothes. See Commonwealth v. Connolly, 356 Mass. 617, 624 (consent by cotenant of apartment building to search of common basement). [Note 7] We conclude therefore that there was

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no error in the judge's ruling admitting the clothes in evidence.

4. The final issue pertains to the admission of the gun in evidence and the testimony in reference thereto. The defendant argues that testimony by the police that the gun was traced to a burglary in California was highly prejudicial and called for a mistrial or at least that the evidence should have been struck. The gun was seized by the police from under the front seat of the car in which the defendant was seated in the rear at the time of his arrest in connection with a local bank robbery. At the trial, over the defendant's objection and exception, Lieutenant Campos testified to a conversation he had with the defendant concerning the gun. "I asked him if it was his gun. And he said he never saw it before in his life." He further testified, "I told him that we had traced that gun, and it was taken in a burglary in California. He said he knew nothing about it." The court denied the defendant's motion to strike this testimony stating that "[defendant] denied the ownership." In his charge to the jury, the judge referred to the gun, stating: "No one identifies . . . [the defendant] as the owner of the pistol; nor is it shown that -- he says he didn't know it was there, as I remember. But, none-the-less, it was there."

The general rule as to the admission of the gun was stated in Commonwealth v. McLaughlin, 352 Mass. 218, 229-230: "Weapons found in the possession of a defendant at the time of his arrest are commonly held to be admissible if they might have been used in the commission of the crime charged, even though there is no direct proof that the weapons were in fact those used." The issue, therefore, with respect to the admissibility of the gun is whether it might have been used in the commission of this armed robbery. Ryding described the weapon as a "large brown gun." The gun answered that description, and,

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therefore, was properly admitted in evidence. The gun was found in an automobile occupied by the defendant when he was arrested, and whether it was under the control of the defendant presented a jury question. Commonwealth v. Retkovitz, 222 Mass. 245, 249.

The police officer's statement that the gun was taken in a burglary in California served to inform the jury that the defendant may have been involved in some prior criminal activity. Although the judge's specific instructions to the jury on this evidence probably made its admission harmless, in the event of a new trial there should be no reference to the California burglary. Commonwealth v. Stone, 321 Mass. 471, 472-473. Commonwealth v. Welcome, 348 Mass. 68. Commonwealth v. Vanetzian, 350 Mass. 491, 495.

Judgment reversed.

Verdict set aside.