Opinion
November 18, 1975.
Charles L. Johnson for the defendant.
W. James O'Neill, Assistant District Attorney, for the Commonwealth.
This is an appeal under G.L.c. 278, §§ 33A-33G, from convictions of rape and assault and battery by means of a dangerous weapon. The defendant, a black man, argues a single assignment of error, the denial of his motion "to allow more than one black to sit in the defendant's dock to insure proper identification of defendant in court," a request in substance for an in-court lineup for identification purposes at trial. There is no constitutional requirement that in-court identification of a defendant be conducted as a lineup. Commonwealth v. Wheeler, ante, 387, 391 (1975). Whether to accede to the defendant's request for an in-court lineup rested within the sound discretion of the judge. See Commonwealth v. Bumpus, 362 Mass. 672, 680 (1972), judgment vacated on other grounds, 411 U.S. 945 (1973), affd. on reh., 365 Mass. 66 (1974). Obviously, an element of suggestion existed in the relative isolation of the defendant in the dock. It has been held, nonetheless, that "counsel [for the defendant] has the responsibility, by way of cross-examination, to bring to the attention of the trier of facts any circumstances which tend to cast doubt upon a witness's identification testimony." Commonwealth v. Jones, 362 Mass. 497, 500-501 (1972). Absent a showing of an abuse of discretion which prejudices the defendant's opportunity for a fair trial, the judge's ruling is not to be disturbed. There is no such showing here. Cases upon which the defendant places reliance dealt with assertions that in-court identifications were tainted by prior impermissible out-of-court confrontations between the witness and the defendant. Here there had been no such confrontation, suggestive or otherwise, and the victim was permitted to identify the defendant as her assailant at the trial held thirteen months after the assault. Contrary to the defendant's assertion, the victim not only had ample opportunities prior to, during and immediately following the assault to observe her assailant but also, as the record shows, to receive "a firm contemporaneous impression" of him not likely to have been influenced by subsequent events. Commonwealth v. Ross, 361 Mass. 665, 672 (1972), judgment vacated on other grounds, 410 U.S. 901 (1973), affd. on reh., 363 Mass. 665 (1973).
Judgments affirmed.