COMMONWEALTH vs. VERNON DAY (and seven companion cases ).

COMMONWEALTH vs. VERNON DAY (and seven companion cases [Note 1]).

4 Mass. App. Ct. 831

July 22, 1976

1. White, a witness to the robberies, testified on direct examination that he had met Day on various occasions prior to the robberies in the course of athletic and social events; he positively identified Day as the individual who had shot one of the robbery victims. It appeared from White's cross-examination that he had been unable to give the police Day's name when he had, within hours of the robberies, identified a mugshot of Day as being a likeness of the gunman. White had shortly thereafter had a conversation with someone "who wasn't a police officer", who had given White Day's name, which White had then given the police. The judge's unsolicited refusal to order White to disclose the name of his conversant did not result in an abridgement of Day's rights under the Sixth Amendment to the Constitution of the United States (see Pointer v. Texas, 380 U.S. 400, 403-406 [1965]) or under art. 12 of the Declaration of Rights of the Massachusetts Constitution. It did not appear that White's conversant had been a witness to the robberies or the shooting, that he was a police informer (see Commonwealth v. Swenson, 368 Mass. 268 , 275-278 [1975]), or that either he or his identity was in any way important to the conduct of Day's defense. He was no more a "witness" within the meaning of either constitutional provision than was the unidentified police officer who had originally implanted Day's name or identifying number on the mugshot which White had already selected at the police station. 2. The judge did not err in denying Hill's motion for a directed verdict, which was grounded on the proposition that the evidence was insufficient to warrant a finding that Hill had been the second participant in the robberies and shooting. We pass White's evasive and equivocal answers to the prosecutor's and the judge's direct questions concerning the identity of the second participant; it is enough to note that White never said that Hill was not the man in question. We concentrate instead on White's other testimony, given in unguarded moments following his having been declared a hostile witness. White testified that he had also seen Hill on occasions prior to the robberies.

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He gave an affirmative answer to a question as to whether it was true that Hill was the individual who had taken the wallet of one of the robbery victims. White also testified that Hill's beard, moustache and sideburns (as observed by him in the court room) were different from what he had observed on the date of the robberies; on "the day of the incident" Hill had not been wearing the platform shoes he was wearing in the court room ("he wasn't that tall then"). Finally, the foregoing testimony was bolstered (see Commonwealth v. Walker, 370 Mass. 548 , 563-564 [1976]) by undisputed evidence (no longer objected to) that five days after the robberies White had made a photographic identification of Hill from among mugshots exhibited to him by the police. The jury could properly consider that identification as substantive evidence of Hill's guilt. Commonwealth v. Torres, 367 Mass. 737 , 739 (1975). Commonwealth v. Swenson, 368 Mass. at 272.

Judgments affirmed.

FOOTNOTES

[Note 1] Commonwealth vs. Vernon Day (three indictments) and Commonwealth vs. John S. Hill (four indictments).