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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Napolitano, 378
Supreme Judicial Court of Massachusetts,
Argued
Decided
Monroe L. Inker, Newtonville (John E. DeVito,
Michael J. Traft, Asst. Dist. Atty. (Alice Hanlon,
Before HENNESSEY, C. J., and QUIRICO, KAPLAN, LIACOS
and ABRAMS, JJ.
ABRAMS, Justice.
Jerome
Napolitano appeals from two convictions of murder in the first degree. (FN1) See G.L. c. 278, ss 33A‑33G. Napolitano contends that the trial judge
erred in (1) the denial of his motion to suppress identification testimony, (2)
the charge to the jury concerning identification testimony, and (3) in the
admission of evidence. (FN2) We find no
error and affirm the convictions. We
also decline to exercise our power under G.L. c. 278, s 33E, to direct the
entry of a verdict of a lesser degree of guilt.
1. The
motion to suppress. On
A. The
photographic identification. The three
witnesses for the Commonwealth selected Napolitano's picture from an array of
forty‑four photographs. Napolitano
argues that the array was impermissibly suggestive because most of the pictures
did not resemble him and because the police prompted the witnesses. The record does not support Napolitano's
claims.
We
summarize the evidence surrounding the photographic identification. On
Weeks furnished the police with a detailed
description of the man who had shot Willett and McGuire, including the man's
height, weight, build, age, hair length, and clothing. He also told police that the assailant had a
beard and wore glasses.
From
Weeks' description a police artist drew up some composite pictures but none of
them satisfied Weeks. The police showed
Weeks two separate photographic arrays but Weeks made no identification. On February 1, 1977, Weeks was shown a third
array consisting of forty‑four photographs. Weeks selected Napolitano's picture and said
that he was "70 percent sure" Napolitano was the assailant, but that
he wanted to see Napolitano in person because the picture did not portray the
man's body.
Cory Bush
viewed the assailant for four to six minutes from her apartment, 150 to 200
feet from the killings. Bush, who has
twenty‑twenty vision, gave the police a description of the assailant by
height, weight, age and build. She also
described the gunman's clothing and said that he had a "scruffy
beard."
In March
of 1977, the police brought Bush the array of forty‑four photographs and
asked her "to look through the pictures and see if there's anyone you
recognize." Bush eliminated many of
the pictures because they were of thin men.
She picked out the defendant's picture in one minute.
John
MacKenzie saw the shootings from a distance of approximately four car
lengths. On the night of the slayings he
had consumed twelve beers and was "feeling no pain." (FN4) At some time after Weeks selected the
defendant's photograph, MacKenzie was asked to come to police headquarters and
look at some photographs. Prior to
looking at the array of forty‑four pictures, MacKenzie was told "to
look through them to see if the person is in there." MacKenzie picked out Napolitano's picture
after approximately fifteen or twenty minutes.
MacKenzie told the police that he had no "doubt in his mind"
and that he was "positive" he had selected the assailant's
photograph.
[1]
Napolitano asserts that the array was impermissibly suggestive because only
three of the forty‑four photographs depict heavy men with "
scraggly" beards, a consistent description of the assailant. The judge found the group of forty‑four
photographs was "a fair cross‑section." We have examined the photographs, all of
which were in evidence at the hearing on the motion to suppress. Several photographs closely resemble that of
Napolitano, and there is no evidence that the police in any way suggested to
the witnesses which photograph was of the person under investigation. (FN5) Accord, Commonwealth v. Clark, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNA), 393 N.E.2d 296
(1979). We conclude that the judge was
correct in finding that the array was not impermissibly suggestive. See Simmons v. United States, 390 U.S. 377,
384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Commonwealth v. Clark, supra at ‑‑‑
‑ ‑‑‑ (FNB), 393 N.E.2d 296; Commonwealth v. Moynihan,‑‑‑
Mass. ‑‑‑ (FNC), 381 N.E.2d 575 (1978); Commonwealth v.
Jones,‑‑‑ Mass. ‑‑‑, ‑‑‑ ‑
‑‑‑ (FND), 377 N.E.2d 903 (1978).
[2]
Moreover, given the fact that, at least as far as the record discloses, the
police were without a suspect, the array was abundantly fair. Napolitano suggests that in order for the
array to be fair, it should have consisted solely of heavy men
with beards. We are unwilling to compel
the police to show to witnesses only pictures of men with certain features
which may be altered. Such a requirement
might unduly hamper police investigations and might permit those who commit
crimes to escape detection and detention by a simple alteration of
appearance. Contrary to Napolitano's
claim, the police were not required to limit the array to pictures of heavy men
with "scraggly beards." We
think the array in this case displays a real effort by the police to secure a
fair photographic identification procedure.
[3]
Napolitano also argues that the photographic identifications were impermissibly
suggestive because police prompted the witnesses. The short answer to this contention is that
the record clearly supports the judge's finding that the identifications were
not prompted in any way. (FN6)
B. The
identifications at the probable cause hearing.
Bush, Weeks and MacKenzie identified Napolitano at a probable cause
hearing in the Municipal Court of the Brighton District. Napolitano contends that all three
identifications at the probable cause hearing were impermissibly suggestive
because they took place when he was seated in the prisoner's dock, isolated
from others in the court room. The three
witnesses testified that there were a number of people in the court room.
[4] We
recognize that a degree of suggestiveness inheres in any identification of a
suspect who is isolated in a court room.
Nevertheless, such isolation does not, in itself, render the
identification impermissibly suggestive.
Commonwealth v. Jones, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNE), 377 N.E.2d 903
(1978). What is important is not so much
the style of the identification procedure but whether it meets "a certain
basic standard of fairness."
Commonwealth v. Dougan, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (FNF), 386 N.E.2d 1, 8 (1979).
[5] After
seeing and hearing the three witnesses, the judge concluded that their
identification had a basis independent of the probable cause hearing. (FN7) The judge's findings of fact are
warranted by the evidence and amply justify his conclusions.
[6]
Moreover, Napolitano had counsel present at the probable cause hearing to
"ferret out (any) suggestive influences" he perceived in the
identification procedures. (FN8)
Commonwealth v. Jones, 362 Mass. 497, 500, 287 N.E.2d 599 (1972). Commonwealth v. Jones, ‑‑‑
Mass ‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNG), 377 N.E.2d 903 (1978). See Moore
v. Illinois, 434 U.S. 220, 229‑230, 98 S.Ct. 458, 54 L.Ed.2d 424
(1977). There is nothing in this record
to suggest that counsel "move(d) for an in‑court lineup or to seat
the defendant in the court room audience," Commonwealth v. Jones, 362
Mass. at 500, 287 N.E.2d at 602, because of the suggestiveness of Napolitano's
placement in the court room. Such a
motion cannot be made for the first time in this court.
[7] Counsel argued that the witnesses did not
identify Napolitano until four months after the shootings, that two of them
were influenced by alcohol while viewing the assailant, and that MacKenzie
identified Weeks as the assailant on the night of the shooting. These factors bear on the weight which the
trier of fact should place on their identification testimony but not on its admissibility. In sum, the identifications at the probable
cause hearing were not constitutionally impermissible. (FN9) See Commonwealth v. Jones, 362 Mass. at
500‑501, 287 N.E.2d 599; Commonwealth v. Jackson, ‑‑‑
Mass. ‑‑‑, ‑‑‑ n. 12 (FNH), 386 N.E.2d 15 (1979).
C.
Identification by Weeks in Dedham.
Napolitano's argument concerning the identification by Weeks in Dedham
while he was being arraigned on unrelated charges presents a more serious
question. Though Napolitano was
represented by counsel at that hearing, neither Napolitano nor his counsel was
informed that he was being identified in connection with another crime. Thus his counsel was unable to propose
procedures to reduce the suggestiveness inherent in his presence in the
prisoners' dock. Further, at the time he
was identified in Dedham, it was approximately four months after the crime, and
Napolitano may have been wearing a shirt similar to that worn by the assailant
on the night of the crime.
[8]
Despite these undeniably suggestive factors, the totality of the circumstances
surrounding the identification in Dedham demonstrates that the procedure was
not constitutionally infirm. Napolitano
was not alone in the prisoners' dock, but was seated with two other males, at
least one of whom was about the same size and age. Moreover, Napolitano himself admitted that
the court room was crowded and busy, and that persons were standing around the
dock. Thus, Napolitano's isolation was
lessened by the crowded court room.
Further, the police did not direct Weeks' attention to the prisoners'
dock. In these circumstances, the
identification procedure was not a "one‑to‑one"
confrontation. Compare Commonwealth v.
Jones, supra, ‑‑‑ Mass. at ‑‑‑ (FNI), 377
N.E.2d 903.
In
addition, the informal identification procedure employed was justified in light
of the fact that the only evidence against Napolitano at that point was Weeks'
tentative photographic identification.
(FN10) Informal identification procedures during the initial
investigatory stages of the criminal process may free innocent suspects and
allow the police to follow other more productive leads. See Commonwealth v. Barnett, 371 Mass. 87,
92, 354 N.E.2d 879 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50
L.Ed.2d 765 (1977) (speedy showup permissible).
Cf. Simmons v. United States, 390 U.S. 377, 384‑385, 88 S.Ct. 967,
19 L.Ed.2d 1247 (1968); Commonwealth v. Lopes, 362 Mass. 448, 454, 287 N.E.2d
118 (1972) (viewing of a suspect without his knowledge may save innocent but
insecure suspect from engaging in inculpatory conduct). Where the investigation has not focused on a
particular individual, the police must feel free to bring an eyewitness into
court to view possible suspects. (FN11)
State v. Long, 293 N.C. 286, 290‑291, 237 S.E.2d 728 (1977). Hopkins v. State, Ind., 382 N.E.2d 147, 148‑149
(1978).
In this
case, the police did not have probable cause to arrest Napolitano at the time
of the Dedham identification. It is
clear that without probable cause, the police could not detain him for
investigatory purposes. See Dunaway v.
New York, ‑‑‑ U.S. ‑‑‑‑, 99 S.Ct.
2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45
L.Ed.2d 416 (1975). Cf. Commonwealth v.
Bumpus, 362 Mass. 672, 676, 290 N.E.2d 167 (1972), judgment vacated and
remanded on other grounds, 411 U.S. 945, 93 S.Ct. 1941, 36 L.Ed.2d 407 (1973),
aff'd on rehearing, 365 Mass. 66, 309 N.E.2d 491 (1974). Thus the police did not elect "to pursue
an informal identification procedure for the purpose of avoiding a lineup
conducted in accordance with constitutional requirements." (FN12) Commonwealth v. Chase, 372 Mass. 736,
363 N.E.2d 1105 (1977). Accord, United
States ex rel. Burton v. Cuyler, 439 F.Supp. 1173, 1181 (E.D.Pa.1977), aff'd
582 F.2d 1278 (3d Cir. 1978).
Though we
find no constitutional infirmity in the identification procedure at Dedham, our
holding does not imply approval of that procedure. While the Federal Constitution does not
establish inflexible identification procedures (Neil v. Biggers, 409 U.S. 188,
199‑200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)) both the public and the
prosecution benefit from identification procedures "which are more easily
viewed as inherently fair and accurate."
Commonwealth v. Storey, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (FNJ), 391 N.E.2d 898 (1979). See Commonwealth v. Balukonis, 357 Mass. 721,
724 & n. 3, 260 N.E.2d 167 (1970) (motion to suppress identification
allowed where defendant's attorney, though present, was unaware of the
identification procedure).
[9] We
think that it would have been preferable for the Commonwealth to have told the
District Court judge that Napolitano was a suspect in an unrelated crime, and
that a witness was being asked to identify him in the court room. The District Court judge then could have
taken steps to minimize any suggestiveness by Napolitano's placement in the
court room during the identification procedure.
Alternatively, the Commonwealth could have informed the defendant's then‑counsel
and requested that Napolitano voluntarily participate in a line‑up.
While we
find no error in the denial of the motion to suppress, we think that when
judicial proceedings are used as a means of identifying a particular
individual, an effort must be made to eliminate any unnecessary suggestiveness. It is the Commonwealth's duty "not
merely to secure convictions . . . (but) to secure them with due regard to the
constitutional and other rights of the defendant." Smith v. Commonwealth, 331 Mass. 585, 591,
121 N.E.2d 707, 710 (1954). COMMONWEALTH
V. TABOR, ‑‑‑ MASS., ‑‑‑, ‑‑‑
‑ ‑‑‑ , 384 N.E.2D 190 (1978)(FNK).
2. Charge
to the jury. Napolitano claims that the
judge committed reversible error in failing "to alert jurors to the
vagaries of identification testimony by stressing the government's obligation
to prove a defendant's identity beyond a reasonable doubt and by focusing the
jurors' attention on the shortcomings of such proof." (FN13) See United States v. Kavanagh,
572 F.2d 9, 11 (1st Cir. 1978).
Napolitano requested instructions patterned on those approved in United
States v. Telfaire, 152 U.S.App.D.C. 146, 152, 469 F.2d 552, 558 (1972). See United States v. Dodge, 538 F.2d 770, 784
(8th Cir. 1976), cert. denied sub nom.
Alvarado v. United States, 429 U.S. 1099, 97 S.Ct. 1119, 51 L.Ed.2d 547
(1977); United States v. Masterson, 529 F.2d 30, 32 (9th Cir.), cert. denied,
426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833 (1976); United States v. O'Neal,
496 F.2d 368, 373 (6th Cir. 1974). See
also United States v. Fernandez, 456 F.2d 638, 644 (2d Cir. 1972).
[10]
Napolitano is correct in his assertion that a specific charge on identification
was appropriate. In Commonwealth v.
Rodriguez, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑ (FNL), 391 N.E.2d 889 (1979). We specifically approved an identification
instruction modeled after that given in United States v. Telfaire, supra. In this case, however, the judge fully
instructed the jury on the troublesome aspects of identification
testimony. Compare United States v.
Dodge, supra, with United States v. Greene, 591 F.2d 471, 476‑477 (8th
Cir. 1979).
During
trial (FN14) and again in his final instructions to the jury, the judge
emphasized that in weighing the identification testimony the jurors should
consider the witness's opportunity to view, inconsistent descriptions given by
the witness, and the fairness of the identification procedures. We find no error. In this, as in all other matters at trial,
the judge demonstrated sound judgment and assured Napolitano a fair trial.
3.
Character evidence. Napolitano argues
that the judge erred in allowing the prosecution to present evidence that he
owned "motorcycle‑type" clothing, and that he visited a certain
bar in Brighton. Napolitano contends that the prosecution thus
impermissibly introduced evidence of his bad character. See Commonwealth v. O'Brien, 119 Mass. 342
(1876). We find no error.
[11] The
record discloses that three witnesses described the assailant's clothing as
"motorcycle‑type."
Indeed, at trial such testimony was first elicited by defense
counsel. Subsequently the prosecutor
questioned Napolitano's girl friend concerning his ownership of clothing
usually associated with motorcycle riders.
We think the prosecutor's questions concerning Napolitano's
"motorcycle‑type" clothing were proper and clearly relevant to
the identity of the assailant. The judge
did not abuse his discretion in concluding that the probative value of the
evidence outweighed its prejudicial effect.
Commonwealth v. Caine, 366 Mass. 366, 370‑371, 318 N.E.2d 901
(1974).
[12]
Evidence concerning Napolitano's visit to a bar in Brighton was elicited from
Napolitano's girl friend by the prosecutor.
The judge ruled that the question was an appropriate test of the
witness's credibility in light of the witness's assertion that Napolitano never
"frequented" establishments in Brighton. We find there was no abuse of judicial
discretion. See Commonwealth v. Flynn,
362 Mass. 455, 470, 287 N.E.2d 420 (1972).
[13] 4.
Review under s 33E. Pursuant to our
responsibilities under G.L. c. 278, s 33E, we have reviewed the entire record
for a consideration of the law and the evidence. The jury could have found as follows. An assailant shot Willett and McGuire after
pushing them away from Weeks. The
assailant then reloaded his gun and, after Weeks ran off, he fired several more
shots at Willett, who was lying on the ground.
The assailant then placed the gun on McGuire's chest and fired two more
shots. Further, there were eight bullet wounds
in McGuire's body, of which those in the chest "would cause rapid death,"
even if others were "survivable if medically treated." There were six bullet wounds in Willett's
body, one of which entered the back of the head, " transversed the brain,
and . . . would have been rapidly fatal."
The major contested issue at trial was the identity of the
assailant. The jury decided that
Napolitano was the assailant. We find no
reason to order a new trial or to direct the entry of a lesser degree of guilt. (FN15) See Commonwealth v. Whipple, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNM), 387 N.E.2d 575 (1979).
Judgments
affirmed.
FN1.
Napolitano was sentenced to two concurrent life sentences at the Massachusetts
Correctional Institution at Walpole, to be served from and after a three to
five year sentence which he was already serving for an unrelated armed robbery.
FN2. Assignments of error not briefed are
deemed waived. Commonwealth v. Amazeen, ‑‑‑
Mass. ‑‑‑ n. 1 (Mass.Adv.Sh.
(1978) 1025 n. 1), 375 N.E.2d 693.
FN3. At trial two other eyewitnesses
contradicted the identification testimony of the three who testified at the
hearing. The testimony of the two
eyewitnesses goes to the weight of the other three identifications, and not to
whether they should have been suppressed.
See Neil v. Biggers, 409 U.S. 188, 201 n. 8, 93 S.Ct. 375, 34 L.Ed.2d
401 (1972).
FN4. Originally, MacKenzie told the police
that the assailant was wearing a green football shirt; when Weeks entered the
police station wearing such a shirt, MacKenzie identified him as the
assailant. The judge found that this
misidentification went to the weight, not the admissibility of MacKenzie's
identification.
FN5. The defendant does not argue or suggest
that his photograph was included in any of the earlier arrays from which Weeks
had been unable to make an identification.
Of course, Napolitano would have been entitled to such information. See Commonwealth v. Clark, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (Mass.Adv.Sh. (1979) 1646, 1651), 393 N.E.2d 296.
FNa.
Mass.Adv.Sh. (1979) 1646, 1656.
FNb.
Mass.Adv.Sh. (1979) at 1651‑1659.
FNc.
Mass.Adv.Sh. (1978) 2654, 2663.
FNd.
Mass.Adv.Sh. (1978) 1467, 1472‑1474.
FN6. The evidence indicated that Bush was
told, "We want you to look through the pictures and see if there's anyone
you recognize." Further, MacKenzie
was told, "We think we have someone here who fits the
description." The latter statement,
though it should not have been made, merely states the obvious purpose of
showing the photographs to the witness.
FNe.
Mass.Adv.Sh. (1978) 1467, 1478‑1479.
FNf. Mass.Adv.Sh. (1979) 380, 396.
FN7. Napolitano did testify
at the hearing to facts which, if believed, would warrant a finding that the
identification procedure at the probable cause hearing was suggestive. However, his testimony was contradicted by several
prosecution witnesses, and the judge, in written findings, accepted the
testimony of the prosecution witnesses.
FN8. Defense counsel has
several methods by which he can reduce the suggestiveness of the
identification. He can request
postponement of the identification until a line‑up could be arranged in a
less suggestive setting, or he can request that the defendant be seated in the
audience during identification. Moore v.
Illinois, 434 U.S. 220, 230 n. 5, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977). Commonwealth v. Jones, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (Mass.Adv.Sh. (1978) 1467, 1478), 377 N.E.2d 903. If security becomes an issue the judge may
require that others be seated in the dock with the defendant.
FNg. Mass.Adv.Sh. (1978) 1467, 1478‑1479.
FN9. During the trial the
judge instructed the jury as follows: "I can tell you that a probable
cause an identification at a probable cause hearing is probably not reliable
because at that instant, or at that probable cause hearing, that is if that's
the only identification, it isn't reliable, because then the focus of the whole
proceedings is upon the accused."
We intimate no view as to the correctness of this instruction, since its
correctness was not raised or argued.
See also notes 13‑14 Infra, for the judge's instructions to the
jury on identification.
FNh. Mass.Adv.Sh. (1979) 401, 417 n. 12.
FNi. Mass.Adv.Sh. (1978) at 1474.
FN10. Napolitano does not
argue that the confrontation at Dedham occurred at a critical stage of his
prosecution for murder. Thus, he does
not claim that failure to inform his counsel of the identification procedure
denied his Sixth Amendment right to counsel.
See Boyd v. Henderson, 555 F.2d 56, 61 (2d Cir.), cert. denied, 434 U.S.
927, 98 S.Ct. 410, 54 L.Ed.2d 286 (1977).
Compare Saltys v. Adams, 465 F.2d 1023, 1029 (2d Cir. 1972) (Friendly,
J., dissenting).
FN11. This situation must
be distinguished from one where the identification in court is not a genuine
effort to test a witness's ability to identify a suspect but rather is an
attempt to bolster identification testimony.
See Martin v. Donnelly, 391 F.Supp. 1241, 1248 (D.Mass.1974).
FN12. We note that the
identification at Dedham was but one aspect of Weeks' identification of
Napolitano, and that Bush and MacKenzie were not present at Dedham.
FNj. Mass.Adv.Sh. (1979) 1546, 1555.
FNk. Mass.Adv.Sh. (1978) 3088, 3097‑3098.
FN13. The judge instructed
the jury: "Now, your function is to determine whether or not you are
convinced beyond a reasonable doubt that when they (the identification
witnesses) say to you under oath from this stand that's the man, are you
convinced beyond a reasonable doubt that it is it was? And that is why we allow the witnesses to be
examined further, and cross examined, as to what they base their statement to
you here that that's the man, what was it based on. And you are entitled to take into
consideration how long, under what circumstances a witness who tells you that's
the man had to observe that person; whether or not they gave varying or
inconsistent descriptions, whether they identified somebody else first or not,
how they picked out the photographs. Was
it a fair and you will have the forty‑four photographs was that a fair
show‑up? You may take all these
matters into consideration in determining whether you are going to believe when
a witness says, 'Now, that's the man in front of you here,' regardless of what
they said any place else, does that convince you beyond a reasonable doubt.
"You
are also entitled, of course, to take into consideration and determine for
yourselves the fact that a couple of other witnesses from this stand under oath
before you said that is not the man.
Again, he does not have to prove that he was not the man. But are you satisfied, in view of these other
witnesses who say that's not him, and what opportunities they had to observe,
whether they were able to make prior identifications, whether they were looking
at the same man or not, does that create a reasonable doubt in your mind that
that isn't the man.
"Now,
I don't think I have to say much about whether a lineup should have been used
and wasn't used, or whether it could have been used right close to the time of
the crime. I told you that there is no
hard and fast rule that says that the police have to use one form of
identification process over another.
It's up to you to determine was the form that was in fact used fair, and
does it convince you beyond a reasonable doubt that this is the man."
FNl.
Mass.Adv.Sh. (1979) 1527, 1532‑1533.
FN14.
During the trial the judge instructed the jury as follows: "Mr. Foreman
and other members of the jury, in the first instance I want to tell you that
there is no rule that says that the police or the DA's Office has to use one
method of identification over another.
That is, there is no rule that says that if possible you have to use a
line‑up or that a line‑up is better than any other way.
"There
are various ways that the police have used which are approved. For example, the line‑up is one, if
possible. And this has been used quite
often; you allow the witness, or give the witness an opportunity to see the
suspect in a crowd of people. For
example, coming out of his place of employment, you know, like a factory at the
time when a shift ends or to see him in a crowd at a hockey game or any way.
"And
one of the other ways is by using a photographic identification, which was used
in this instance. Now, it will be your
function to determine whether or not whether other means were available is not
the issue, but whether or not you are satisfied beyond a reasonable doubt that
the method used, in this instance the photographic identification, was
sufficiently reliable for you to base, if you are going to, a conviction of
this defendant on, along with all the other evidence.
"And
often after a partial identification from a photograph or any other means is
used, the witness is brought into a place where the suspect is going to be in
this instance you've heard about this being done at the Dedham Court House on a
particular day, and again you will be able to judge for yourself as to whether
under the circumstances in which that show‑up was made, that was a
reliable method of obtaining an identification." See note 9, Supra.
FN15.
Defense counsel, with Napolitano's consent, stipulated that the question of
manslaughter not be submitted to the jury.
Defense counsel stated that he and his client considered any claim of
manslaughter inconsistent with Napolitano's claim that he was not at the scene
of the crime. Section 33E does not
require that we second‑guess such tactical decisions of a defendant and
his counsel. Nevertheless, we have
considered whether to direct the entry of a verdict of manslaughter under G.L.
c. 278, s 33E. We think that on the
facts presented, a claim of manslaughter is not compelling.
FNm. Mass.Adv.Sh. (1979) 907, 913‑914.