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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Pacheco, 12 Mass.App.Ct.
109 (1981)
Appeals Court of Massachusetts,
Argued
Decided
Further Appellant Review Denied
Robert J. Barker, II,
Robert M. Payton, Asst. Dist. Atty., for the
Commonwealth.
Before [12
Mass.App.Ct. 109]
GREANEY, CUTTER and KASS, JJ..
GREANEY, Justice.
The
defendant, Pacheco, was convicted on
[12 Mass.App.Ct.
111] 1. The motion for directed
verdict. The evidence pertinent to this
claim may be summarized as follows. On
the afternoon of
The
defendant argues that the foregoing evidence was insufficient to warrant his
conviction of armed robbery because the evidence pertaining to the
disappearance of the three one dollar bills is equally consistent with a
conclusion that they had fallen from the victim's purse during the struggle and
had been lost in the woods as with a conclusion that they had been taken in a
robbery. He also maintains that if a
theft occurred, it happened after the rape.
As a consequence, he asserts that the theft was not accompanied by the
requisite force when the property was taken and that the resulting crime was
larceny, not robbery.
(1)(2) We
find no merit to either argument. The
above recounted evidence, viewed as it must be in a light most favorable to the
Commonwealth (Commonwealth v. Kelley, 359 Mass. 77, 86, 268 N.E.2d 132 (1971);
Commonwealth v. Clark, 378 Mass. ‑‑‑, ‑‑‑,
([FNA]) 393 N.E.2d 296 (1979); Commonwealth v. Latimore, 379 Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑, ([FNB]) 393 N.E.2d 370
(1979)), would have permitted a rational jury to conclude that the defendant
had a continuing intent to rob as well as rape the victim and that he
accomplished both purposes. The fact
that the victim's purse, containing at least three one dollar bills, was
removed from her possession by force, backed by the defendant's statement that
he had a knife, his subsequent threat to return and kill her, and the discovery
at the scene on the following morning of the purse with the currency missing
but with the loose coins intact, established a sufficient basis for a jury
verdict convicting the defendant of armed robbery. Commonwealth v. McCarthy, 360 Mass. 566, 567‑568,
276 N.E.2d 696 (1971). Commonwealth v.
Jones, 362 Mass. 83, 90, 283 N.E.2d 840 (1972).
Cf. Commonwealth v. Montmeny, 360 Mass. 526,
530, 276 N.E.2d 688 (1971). Contrast
Commonwealth v. Novicki, 324 Mass. 461, 464, 87
N.E.2d 1 (1949).
[12 Mass.App.Ct.
113] 2. The motions to
suppress. The defendant was arrested by
the Taunton police on a warrant about 6:15 P.M. on March 8, 1976. At the Taunton police station, he was advised
of his Miranda rights ([FN3]) and informed
of his right to make a telephone
call pursuant to G.L. c. 276, s 33A. The Plymouth police were notified that he was
in custody and were advised to pick him up.
While at the Taunton police station, the defendant made a telephone call. Shortly after the call was completed, his
father appeared at the station and spoke with him. The defendant was not questioned, nor did he
volunteer any statements while he was held at the Taunton station.
About 7:00
P.M., Sergeant Murphy of the Plymouth police arrived in Taunton, took custody
of the defendant, and, prior to transporting him to Plymouth, advised him of
his Miranda rights. Upon arriving at the
Plymouth police station, Murphy again advised the defendant of his Miranda
rights. ([FN4]) He was then booked by Sergeant Budge who
warned him a further time of his Miranda rights, ([FN5]) and readvised him of his right to make a telephone call to
speak to friends, arrange for bail or consult a lawyer. Murphy testified that at the completion of
the booking procedure, the defendant signed a slip indicating that he had
"understood" [12 Mass.App.Ct. 114]
the Miranda warnings. ([FN6]) Later that evening, the defendant gave Murphy
a tape recorder statement. ([FN7])
On March
8, 1976, Sergeant Murphy interviewed the victim at her home. After discussing the incident with her for
about twenty minutes, he told her that he was going to play a tape recording
and advised her not to say anything until the machine had been shut off. Nothing else was said prior to the tape being
played. Upon hearing a brief portion of
the cassette, the victim identified the defendant's voice as that of her
assailant. ([FN8]) There was evidence that the victim had,
because of her blindness, developed an ability to identify the voices of
different persons, and that she could accurately identify the voices of each of
thirty or forty college acquaintances promptly after they would greet her.
The judge
concluded in his written memorandum that "the defendant was fully advised
of his rights as required under Miranda ..., that it (was) proven beyond a
reasonable doubt that he understood them and that he exercised a knowing,
intelligent and voluntary waiver of his ... rights when he spoke with Sergeant
Murphy on ... March 8, 1976." He
also found that the statutory requirements of G.L. c.
276, s 33A, with respect to a telephone call had been met. As to the voice identification, the judge
found that the victim's "means of identification by voice was developed to
the similar extent that a sighted person is able [12 Mass.App.Ct. 115] to make a visual identification." He concluded that while the voice
identification procedure used by the police is "not to be
recommended," it was not so suggestive as to require the identification's
suppression. In reaching this
conclusion, he relied primarily on the evidence of the victim's aural acuity,
together with the facts that she had been in her assailant's presence for a considerable
period of time, in circumstances that would tend to fix the defendant's voice
in her mind, and that she had made an almost immediate identification of the
defendant's voice on the tape recording without any prompting by Sergeant
Murphy.
A. The
statement. The defendant contends that
he was not properly advised of his Miranda rights because the warnings
furnished in Taunton failed to indicate that anything he said could be later
used against him, and because the warnings provided by the Plymouth police
failed to make it clear that he had the right to consult with and seek the
advice of an attorney, separate and apart from having an attorney present
during any questioning. Based on these
perceived deficiencies, and the fact that the record does not contain a formal
waiver, the defendant claims that the Commonwealth failed to establish that he
had intelligently and voluntarily relinquished his rights.
(3)(4) The
warnings given in Taunton were deficient, but the shortcomings are of no
consequence because no questioning was undertaken, nor statement given, while
the defendant was being held there for the Plymouth police. The at least thrice repeated warnings
furnished by the Plymouth police complied in all essential respects with the
command of Miranda that a suspect "be warned prior to any questioning that
he has the right to remain silent, that anything he says can be used against
him in a court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for him prior to
any questioning if he so desires."
Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct.
1602, 1630, 16 L.Ed.2d 694 (1966). The
rights recited by the Plymouth police are virtually identical to the rights
given by the officers and approved by the Supreme Judicial Court, in
Commonwealth[12 Mass.App.Ct.
116]
v. Lewis, 374 Mass. 203, 204, 205, 371 N.E.2d 775 (1978). Moreover, the police complied with the
"better practice" of furnishing the defendant with the so‑called
optional "fifth warning" that he could stop any questioning at any
time if he so desired. See also
Commonwealth v. Williams, 364 Mass. 145, 148 n.1, 301 N.E.2d 683 (1973);
Commonwealth v. Fielding, 371 Mass. 97, 115, 353 N.E.2d 719 (1976). Undoubtedly, in most cases, the police will
supplement the warnings by instructing the suspect of his right to consult with
counsel prior to, and during the course of, any questioning. See Commonwealth v. Johnson, 3 Mass.App. 226, 229 n.3, 326 N.E.2d 355 (1975), and cases
cited. But the omission of that piece of
advice will not render an otherwise clear and comprehensible statement of
"the four required Miranda warnings" (374 Mass. at 205, 371 N.E.2d
775) constitutionally defective. The
defendant's argument to the contrary confuses what must be said under Miranda
to meet fundamental constitutional requirements, with what the police should do
if a suspect chooses to exercise any of his rights. See 384 U.S. at 469‑470, 86 S.Ct. at 1625‑1626.
We hold that the Miranda requirements were fully satisfied in this case.
(5) There
is also ample support for the judge's conclusion that the defendant voluntarily
waived his rights prior to making the statement. ([FN9])
"(I)f the record demonstrates that a defendant has been clearly and
accurately told of the Miranda rights and that he has affirmatively
acknowledged his understanding of those rights, a knowing and intelligent
waiver of those rights may be inferred, in circumstances not otherwise casting
doubt on voluntary waiver."
Commonwealth v. Johnson, supra at 230, 326 N.E.2d 355, and cases cited. Commonwealth v. Roy, 2 Mass.App.
14, 19‑20, 307 N.E.2d 851 (1974).
Commonwealth[12 Mass.App.Ct. 117] v. White, ‑‑‑ Mass.App. ‑‑‑, ‑‑‑, ([FNC]) 399 N.E.2d 885 (1980).
Commonwealth v. Collins, 9 Mass.App. ‑‑‑,[FNd] 404 N.E.2d 655 (1980).
Explicit statements that the defendant understood his rights and waived
them are not essential. Commonwealth v. Valliere, 366 Mass. 479, 487, 321 N.E.2d 625 (1974). Commonwealth v. Williams, 378 Mass. ‑‑‑,
‑‑‑ n.7, ([FNE]) 391 N.E.2d 1202
(1979). Commonwealth v. Monteririo, 4 Mass.App. 349, 351,
348 N.E.2d 449 (1976). See North
Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755,
1757, 60 L.Ed.2d 286 (1979).
In
addition to the oft‑repeated Miranda warnings (see Procunier
v. Atchley, 400 U.S. 446, 453, 91 S.Ct.
485, 489, 27 L.Ed.2d 524 (1971)), the evidence indicates that the defendant was
fairly and courteously treated while in custody and during the taking of the
statement. There is no evidence that the
police engaged in any threats, trickery or deception, nor any evidence that the
defendant suffered any disability or impairment of physical or mental
functions. It is conceded that the
defendant is of average intelligence and there is no suggestion that he was not
alert at the time of the questioning.
The questioning was not unduly lengthy or prolonged. Cf. Watts v. Indiana, 338 U.S. 49, 53, 69 S.Ct. 1347, 1349, 93 L.Ed. 1801
(1949); Clewis v. Texas, 386 U.S. 707, 709, 87 S.Ct. 1338, 1339, 18 L.Ed.2d 423 (1967). Like the trial judge, we cannot find anything
in the record which would show that the statement was involuntary.
(6)(7) B.
The voice identification. The defendant
maintains that the voice identification procedure amounted to an impermissibly
suggestive one‑on‑one confrontation which violated his right to due
process. The scope of due process
protection against the admission of evidence derived from pretrial
identification procedures is, by now, firmly established constitutional
doctrine. Such evidence is not
admissible where "the confrontation conducted ... was so unnecessarily
suggestive and conducive to irreparable mistaken identification that (the
defendant) was denied due process of law."
Stovall v. Denno, 388 U.S. 293, 301‑302,
87 S.Ct. 1967, 1972‑1973, 18 L.Ed.2d 1199
(1967). Commonwealth v. Venios, 378 Mass. ‑‑‑, ‑‑‑,
([FNF]) 389 N.E.2d 395 (1979). In deciding this threshold question, it is
necessary to examine the "totality of the circumstances" surrounding [12 Mass.App.Ct.
118] the identification alleged to
be impermissibly suggestive. Stovall v. Denno, supra at 302, 87 S.Ct. at
1972. Although this test was enunciated
with regard to visual identifications produced by photographic displays and
line‑ups, it is equally applicable to a voice identification. Commonwealth v. Torres, 367 Mass. 737, 740,
327 N.E.2d 871 (1975), and cases cited.
The use of a single taped voice raises suspicion of a constitutional
violation, but that factor alone will not constitute sufficient ground for
exclusion of the out‑of‑court identification. Id. at 740, 327 N.E.2d 871. See Commonwealth v. Nolin,
373 Mass. 45, 51, 364 N.E.2d 1224 (1977); Commonwealth v. Venios,
supra at ‑‑‑,[FNg] 389 N.E.2d 385; Nassar v. Vinzant, 519 F.2d 798,
801 (1st Cir.), cert. denied, 423 U.S. 898, 96 S.Ct.
202, 46 L.Ed.2d 132 (1975). Rather,
"(t)he crucial determination ... is whether the identification sought to
be admitted in evidence is the product of the witness' observations at the time
of the crime or is instead the product of improper suggestions by the
police." Commonwealth v. Wheeler, 3
Mass.App. 387, 392, 331 N.E.2d 815 (1975).
(8) We
agree with the trial judge that the procedure used here is not one to be
recommended as a substitute for obtaining such identifications by an
impartially constructed array of voices.
([FN10]) Nevertheless, we are not prepared to say, after careful
scrutiny of all the circumstances pertaining to this identification, including
its one‑on‑one feature, that constitutional standards were
violated. The judge's findings, which
are amply supported by the underlying evidence, indicate that the victim had
developed extraordinary powers of aural perception, and that she listened to
her assailant's voice continuously for a lengthy period of time in
circumstances which made her attention inevitably intense [12 Mass.App.Ct. 119] and which were likely to fix his voice in her mind. The playing of the tape was not corrupted by
any "special elements of unfairness."
See Russell v. United States, 408 F.2d 1280, 1284 (D.C.Cir.),
cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d
245 (1969); Commonwealth v. Barnett, 371 Mass. 87, 93, 354 N.E.2d 879
(1976). For example, she was not told
that the defendant was in custody.
Indeed, the judge found, on the evidence he determined to be more
credible, that the police sergeant gave the victim no prompting before or
during the playing of the tape (contrast Palmer v. Peyton, 359 F.2d 199, 201
(4th Cir. 1966); Commonwealth v. Moon, ‑‑‑ Mass. ‑‑‑,
‑‑‑, ([FNH]) 405 N.E.2d 947 (1980))
and the record does not indicate that he otherwise engaged in behavior which
might have prejudiced the identification.
Contrast Sanchell v. Parratt,
530 F.2d 286, 297 (8th Cir. 1976).
Moreover, the identification was made (as found by the judge)
"almost immediately" after the tape was started. There is no claim that the victim vacillated
and arrived at the identification only after the defendant had uttered
incriminating remarks. ([FN11])
Importantly, the identification was found by the judge, on competent evidence,
to be based "solely upon" the victim's independent memory of her
assailant's voice as recalled from the impressions made by that voice at the
scene of the crimes. Thus it bears
sufficient indicia of trustworthiness to satisfy either the reliability test
formulated in the Biggers‑Brathwaite cases or
the independent source standard stated in the Bothelo‑Venios
decisions. ([FN12]) The constitutional protections [12 Mass.App.Ct.
120] in this area are designed,
among other things, to preserve the integrity of the truth seeking process by
eliminating, to the extent reasonably possible, convictions based on highly
suspect identifications. See Neil v. Biggers, 409 U.S. at 198, 93 S.Ct.
at 381; Foster v. California, 394 U.S. 440, 89 S.Ct.
1127, 22 L.Ed.2d 402 (1969); Caver v. Alabama, 537 F.2d 1333, 1335 (5th Cir.
1976). Such a risk, in the
constitutional sense, was not present here because the victim had not been
"manipulated so that the mental image derived from the identification
procedure supplant(ed) that derived from (her) own
experience." United States v. Pheaster, 544 F.2d 353, 370‑371 (9th Cir. 1976),
cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51
L.Ed.2d 546 (1977). Thus, we conclude
that due process standards were met, and that any infirmities in the challenged
identification were properly left for the defense to raise at trial and for the
jury to weigh in deliberations. See
Commonwealth v. Cincotta, 379 Mass. ‑‑‑,
‑‑‑, ([FNI]) 398 N.E.2d 478 (1979),
and cases cited.
(9)(10) 3.
Use of the identification at trial. We find
unavailing the defendant's contention that, because the victim did not attempt
to identify the defendant at trial, evidence of her prior out‑of‑court
identification was not admissible for substantive purposes. A constitutionally proper out‑of‑court
identification is admissible for substantive purposes even if the victim is
unable or unwilling to identify the defendant at trial (Commonwealth v.
Swenson, 368 Mass. 268, 272 n.3, 331 N.E.2d 893 (1975); Commonwealth v.
Fitzgerald, 376 Mass. 402, 408‑409, 381 N.E.2d 123 (1978); Commonwealth
v. Vitello, 376 Mass. 426, [12 Mass.App.Ct. 121] 458‑459, 381 N.E.2d 582 (1978)), and even if no attempt to
obtain an identification at trial is made.
Commonwealth v. Torres, supra 367 Mass. at 738‑739, 327 N.E.2d
871. See also Rule 801(d)(1)(c) of the
Proposed Massachusetts Rules of Evidence.
The defendant's attempt to distinguish Torres on the ground that it
involved an out‑of‑court identification of an actual voice and not
a tape‑recorded voice is without merit.
We see nothing to the contrary in Commonwealth v. Repoza,
‑‑‑Mass. ‑‑‑ ([FNJ]).
(11) The
defendant also argues that there was no testimony before the jury which
established that the voice on the tape played by the sergeant to the victim was
that of the defendant. The relevant
testimony was as follows. The victim was
asked on direct examination if she heard a tape when visited at her home by the
police sergeant and if she identified the voices on it. She said that she identified "Sergeant
Murphy's and the defendant's" voices.
Upon objection of defense counsel, the prosecutor said "(D)o you
mean the man who assaulted you?," and she said, "Yes." The only other evidence with respect to the
tape and the voice identification came from Murphy's testimony that he had
advised the defendant that a tape was being made of a conversation (between him
and the defendant), and that this tape might be used in an identification of
his voice.
(12) From
this evidence, we think that the jury could have inferred that the voice on the
tape was that of the defendant. However,
even if the evidence of the voice identification was arguably incompetent,
there would be no error where the defendant's counsel did not move to have the
victim's statements struck after it became apparent that sufficient testimony
identifying the voice on the tape with that of the defendant was not
forthcoming. ([FN13]) See Commonwealth v. [12 Mass.App.Ct. 122] Dyer, 243 Mass. 472, 507, 138 N.E. 296 (1922), cert. denied, 262
U.S. 751, 43 S.Ct. 700, 67 L.Ed.
1214 (1923); Commonwealth v. Knight, 257 Mass. 421, 424‑425, 154 N.E. 91
(1926); Commonwealth v. Demboski, 283 Mass. 315, 320,
186 N.E. 589 (1933).
4. Other
issues. The remaining claims do not
require extended discussion.
(13) (a)
Although it would have been preferable to have permitted defense counsel to
call Sergeant Budge from Plymouth as his last witness at the suppression
hearing, the judge's failure to do so does not constitute reversible error in
view of evidence which warranted a conclusion that the defendant's telephone
rights had been satisfied by the Taunton police.
(14) (b)
No abuse of discretion can be found in the judge's exemption of Sergeant Murphy
from the sequestration order. The judge
implicitly found him to be "essential to the management of the
case." Commonwealth v. Therrien, 359 Mass. 500, 508, 269 N.E.2d 687 (1971). Commonwealth v. Washburn, 5 Mass.App. 195, 197, 360 N.E.2d 908 (1977).
(15) (c)
The judge acted within his discretion in sentencing the defendant to a penal
facility instead of referring him, as requested by defense counsel, for
immediate examination and diagnosis by psychiatrists under G.L.
c. 123A, s 4, in order to determine whether he was a sexually dangerous
person. See Thibodeau
v. Commonwealth, 366 Mass. 452, 455‑456, 319 N.E.2d 712 (1974). Although the defendant was convicted of a
sexual crime involving the use of force, and although his background disclosed
a history of sexual offenses, the judge could properly have decided that
continued imprisonment was the more appropriate disposition, leaving the
question of an examination under s 4 to be resolved, as the judge stated
"administratively." See Id. at
457, 319 N.E.2d 712. Once he was
sentenced further proceedings would be under G.L. c.
123A, [12 Mass.App.Ct.
123] s 6. This is particularly so where the defendant
was already serving a life sentence. The
existence of the statutory option of treatment "does not imply ... that
traditional sentencing concerns and alternatives have been preempted by the
remedial concerns of this statute. A
sentencing judge may consider other factors, such as punishment and deterrence,
despite the existence of the sexually dangerous offender provisions." Thibodeau v.
Massachusetts, 428 F.Supp. 542, 545 (D.Mass.1977).
Judgments
affirmed.
(FN1.) A sentence of forty‑five to fifty
years to the Massachusetts Correctional Institution at Walpole was imposed on
the rape indictment, and a from and after life sentence on the armed robbery
indictment. Both of these sentences were
to take effect upon the expiration of a life sentence which the defendant was
then serving. The defendant's
convictions on indictments charging assault and battery and kidnapping were
filed with his consent.
(FN2.)
These witnesses testified to out‑of‑court identifications of the
defendant made from photographic arrays shown to them by the Plymouth police
shortly after the incident. These out‑of‑court
identifications were not challenged as suggestive. The witnesses also made in‑court
identifications of the defendant at the trial.
(FNA.) Mass.Adv.Sh. (1979) 1646, 1661.
(FNB.) Mass.Adv.Sh. (1979) 2043, 2051‑2052.
(FN3.)
A Taunton police detective testified that he advised the defendant at the time
of arrest that he had a right to remain silent, that he did not have to answer
any questions unless a lawyer was present, that he could refuse to answer
questions, and that if he could not afford a lawyer one would be provided for
him.
(FN4.)
Murphy testified that this advice consisted of warnings that the defendant had
the right to remain silent, that if he agreed to answer any questions anything
he said could be used as evidence against him in a court of law, that he had a
right to have an attorney present during any and all questioning, that if he agreed
to answer questions he could stop the interrogation at anytime, and that in the
event he could not afford an attorney and desired counsel, a lawyer would be
provided for him without charge before he was asked anything.
(FN5.)
The rights given by Sergeant Budge were described as the same as those given a
short time before by Sergeant Murphy.
(FN6.)
The portion of the slip which contained the defendant's signature was not
introduced in evidence, nor were the contents of that slip explained.
(FN7.)
The contents of this statement were not introduced at the voir
dire on the suppression motions but its substance was introduced at trial. In his statement the defendant admitted that
on the day of the incident he had helped the victim to cross the street,
because she was blind, that he left her in the vicinity of the food store she
wanted to shop at, that he was wearing dungarees and a blue denim jacket, and
that although he had shaved that day he had not shaved for about three weeks
before.
(FN8.)
The identification procedure was conducted with the use of two tape
recorders. While the tape containing the
defendant's voice was played a separate tape recorder was run to transcribe the
conversations between the victim and Sergeant Murphy and the material from the
defendant's statement.
(FN9.) This conclusion could have been
established more easily if the tape recording or a stipulated transcript
thereof had been introduced at the voir dire, because
prior to taking the statement the officer fully repeated all of the Miranda
warnings. This portion of the statement
was not introduced, however, at this hearing or at the trial. Although the judge appended a copy of a
transcript of the tape recording to his memorandum of decision on the
suppression motions, there is no indication that he relied upon it in deciding
the waiver issue.
(FNC.) Mass.App.Ct.Adv.Sh.
(1980) 185, 186.
FNd. Mass.App.Ct.Adv.Sh.
(1980) 921.
(FNE.) Mass.Adv.Sh. (1979)
1431, 1441 n.7.
(FNF.) Mass.Adv.Sh. (1979)
1184, 1187.
FNg. Mass.Adv.Sh. (1979)
at 1190.
(FN10.) As stated in Commonwealth v. Marini, 375 Mass. 510, 517, 378 N.E.2d 51 (1978): "At
all events, police and prosecutors are warned to take particular pains to avoid
suggestive conditions in making arrangements for out‑of‑court tests
where a witness tries to match live voices with his recollections of a voice
heard in the usually stressful original setting. One‑on‑one auditions ought
certainly to be avoided ... there should be the best approach to a 'lineup'
with precautions against directing undue attention to any
participant." Marini
also suggests other safeguards and protocol to minimize the risk of
suggestiveness on voice identifications.
(FNH.) Mass.Adv.Sh. (1980)
1337, 1344.
(FN11.) The portions of the tape heard by the
victim at the voice identification procedure were in large part transcribed by
the court reporter as "inaudible."
The victim appears to have made her identification based on a few
fragments of the tape which stated (as far as we have them) "I walked down
through ... on the left hand side a ... it goes ...." The defendant states
in his brief that the victim heard only a "minor portion" of the
defendant's voice. There is no claim
that any of the statements upon which the identification was made were inculpatory in nature.
(FN12.) The references here are to the
familiar decisions in Neil v. Biggers, 409 U.S. 188,
93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct.
2243, 53 L.Ed.2d 140 (1977); Commonwealth v. Botelho,
369 Mass. 860, 343 N.E.2d 876 (1976); and Commonwealth v. Venios,
supra. We recognize, of course, that the
reliability and independent source formulations are usually applied in the
context of the admissibility of a proposed in‑court identification after
an out‑of‑court identification has been suppressed as unnecessarily
suggestive. The victim did not make an
in‑court identification in this case.
The judge made alternative findings under both of the foregoing tests in
the event that we should find the voice identification procedure to be
impermissibly suggestive. We think that
this was a proper mode of analysis in the peculiar circumstances of this case,
because a study of the totality of events necessarily implicates, and is
intrinsically connected with, this victim's perceptions of her assailant at the
time of the commission of the crimes and her ability to retrieve and apply
those impressions. In so deciding, we
have given weight to the testimony of the victim's description (see supra at
395 and ‑‑‑ n.7, 389 N.E.2d 395 n.7).
(FNI.) Mass.Adv.Sh. (1979)
2671, 2677.
(FNJ.) Mass.Adv.Sh. (1980)
2499.
(FN13.) While the judge did not state
explicitly that the victim's testimony was being admitted conditioned on
subsequent testimony concerning the tape, such could be implied from the
colloquy between him and defense counsel.
The judge was not obliged to advise defense counsel that it was his
burden to move to have the testimony struck in the event the subsequent
testimony was not introduced. See Annot., 88 A.L.L.2d 12, 79, s 10 (1963). It is of special note that defense counsel
made effective use of the scantiness of the evidence concerning the voice
identification in his closing argument, a fact which suggests that he was
content as a matter of purposeful trial strategy to leave that point to the
jury's consideration.