COMMONWEALTH vs. WILFRED M. COX (and a companion case ).

COMMONWEALTH vs. WILFRED M. COX (and a companion case [Note 1]).

6 Mass. App. Ct. 968

January 10, 1979

The defendants were tried by a jury and convicted in the Superior Court of armed assault with intent to murder and three related crimes. The defendants claim error in the denial of their motions to suppress separate, one to one identifications of them by the victim while the latter was in the intensive care unit of a hospital, having been wounded in the assault, and in the judge's failure to suppress subsequent in-court identifications of the defendants at trial. Prior to the hospital identifications the victim had made photographic identifications of each defendant in circumstances which the defendants concede were free of suggestion and which led to their arrest. An identification must be suppressed if, in the totality of the circumstances, it was so unnecessarily suggestive as to give rise to the likelihood of irreparable misidentification. United States ex rel. Kirby v. Sturges, 510 F.2d 397, 402 (7th Cir.), cert. denied, 421 U.S. 1016 (1975). Manson v. Brathwaite, 432 U.S. 98, 110-114 (1977). While one to one confrontations are inherently suggestive, the hospital confrontations in this case were not unnecessarily so; see Commonwealth v. Barnett, 371 Mass. 87 , 91-94 (1976), cert. denied, 429 U.S. 1049 (1977); and there was no evidence of gratuitous impropriety on the part of the police. United States ex rel. Kirby v. Sturges, supra at 403-404. We note that Griffin was accompanied by counsel when identified by the victim in the hospital and that Cox insisted on confronting his accuser in the hospital having declined an opportunity afforded him by the police first to obtain counsel. See Commonwealth v. Alicea, 376 Mass. 506 , 509, 515 (1978). The evidence warranted the judge's findings that a lineup at the time of the hospital confrontation was not feasible. See Commonwealth v. Murphy, 362 Mass. 542 , 547 (1972); Commonwealth v. Lifsey, 2 Mass. App. Ct. 835 (1974). The victim's life was in danger when he identified Griffin in the hospital thirty hours after having

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been shot; and he was still in the intensive care unit when he identified Cox four or five days after the shooting. In the circumstances, "an immediate hospital confrontation was imperative." Stovall v. Denno, 388 U.S. 293, 302 (1967). Trask v. Robbins, 421 F.2d 773, 775-776 (1st Cir. 1970). Moreover, where, as here, there had been prior unsuggestive photographic identifications, in-person identifications are appropriate particularly where a witness's initial observation of the defendants was made under less than ideal circumstances. See Commonwealth v. Chase, 372 Mass. 736 , 742 (1977). The judge was not remiss in declining to make findings on the reliability of the victim's out-of-court identifications of the defendants. Cf. Manson v. Brathwaite, supra at 114-116; Commonwealth v. Gordon, ante 230, 235-236 (1978). And since the judge warrantably found that the pretrial identification procedures were not constitutionally invalid, it became unnecessary for him to consider whether the in-court identifications would be based upon the victim's observations of the defendants independent of the challenged pretrial procedures. Commonwealth v. Mobley, 369 Mass. 892 , 896-897 (1976). Commonwealth v. Chase, supra at 745.

Judgments affirmed.

FOOTNOTES

[Note 1] Commonwealth vs. Edward F. Griffin.