Bumpus was found guilty upon an indictment charging breaking and entering a building in the nighttime with intent to steal. He appealed from a sentence of six months in the house of correction. See G.L.c. 278, §§ 33A-33G. Portions of the evidence and certain facts, which on the evidence could have been found, are set forth below.
Greenberg, a student at Northeastern University, was in bed in his room at 214 Hemenway Street Boston, on the
Greenberg testified that the man who entered his room was wearing "white sneakers, dark pants, a white shirt, a `T' shirt, a dark over-jacket ... and a wrist watch," and was "colored." Subject to exception, he also testified that the man brought back by Fallon was "colored" and similarly dressed. In court Greenberg identified Bumpus as the intruder. Bumpus, he also said, was with Fallon when he came back.
Greenberg was then asked, "[D]id you identify the defendant?" This question was excluded after a bench conference, during which the trial judge, subject to exception, refused to hold a voir dire "in the absence of the jury to determine what part the confrontation ... played in ... Greenberg's ... subsequent identification in court." A nonresponsive answer, "I identified him," by Greenberg (to a question about how Bumpus was dressed) was struck from the record and the jury at once were instructed to "disregard it entirely." On cross-examination Greenberg agreed that, as to his identification of Bumpus, his "state of mind" was that "[i]t could be the man; I am not really sure."
Officer Fallon testified that, after he obtained a description from Greenberg, he went "into the street looking for" someone fitting that description, and "a short distance from the scene" found Bumpus, "a man who fitted this description," who did not give responsive answers. This was twenty minutes to half an hour after starting his search. Fallon also stated that Bumpus was wearing "white sneakers, dark pants, white `T' shirt, black type sweater-type
A flashlight was found on Bumpus's person. This was identified by William E. Perkins, another occupant of 214 Hemenway Street, as a flashlight (of which Perkins gave a detailed description) with a missing lens which had been "on a table beside the front door" and which the witness had used on occasion. A screwdriver also was found in Bumpus's pocket.
Officer Fallon took Bumpus to 214 Hemenway Street. Perkins and Greenberg came out on the street and talked with him while Bumpus was standing on the street. Bumpus was then taken away in the patrol wagon.
1. The trial judge denied a motion for a directed verdict, and indicated in doing so that, if the only evidence had been Greenberg's identification (which was somewhat equivocal because of his candor in expressing his doubts on cross-examination), he would probably have granted the motion. The judge stated, however, that all the evidence, including (a) the similarity of the description (including clothing) of the intruder and the appearance of Bumpus when picked up, and (b) the finding of the flashlight on Bumpus, warranted the jury in finding Bumpus guilty. We agree. The evidence (concerning events, all of which took place within the space of about an hour and which were substantially continuous), summarized above, if admissible (as we think it was), and the inferences which reasonably could be drawn from that evidence were sufficient in the aggregate to support the jury's verdict.
2. Bumpus's principal contention is that the trial judge erred in admitting (a) evidence concerning Greenberg's and Fallon's observation of Bumpus immediately after his arrest, and (b) Greenberg's in-court identification of Bumpus
In the Wade case (see 388 U.S. 218, 220) a bank robbery took place on September 21, 1964. An indictment was returned on March 23, 1965. Wade was arrested on April 2, 1965, and counsel was appointed to represent him on April 26. Fifteen days later, without notice to Wade's lawyer, two bank employees observed a lineup and identified Wade. The post-indictment lineup (p. 237) was held (pp. 228-239) to be a "critical stage of the prosecution" at which Wade was entitled to the assistance of counsel.
In Gilbert v. California, 388 U.S. 263, 269-274, three eyewitnesses to one robbery observed Gilbert "at a lineup conducted without notice to his counsel ... 16 days after his indictment and after appointment of counsel." The robbery occurred on January 3, 1964 (see pp. 270, 282). Gilbert was arrested on February 26 (see p. 283). The lineup occurred on March 26, after Gilbert had been indicted (p. 270, fn. 2). Witnesses, who were present at the lineup, identified Gilbert in court (pp. 269-270). The court (per Mr. Justice Brennan, over vigorous dissent) said, at p. 272, "The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but
The Stovall case, 388 U.S. 293, 294-295, did not involve a post-indictment lineup. A doctor was stabbed to death about midnight on August 23, 1961. His widow also was stabbed a number of times. She was placed in a hospital for surgery. Stovall was arrested on the afternoon of August 24. "The police, without affording ... [Stovall] time to retain counsel," took him to the widow's hospital room handcuffed to a police officer. He was the only Negro in the room. She identified him. Later she testified to her identification of him in the hospital room and "also made an in-court identification." After holding the Wade and Gilbert cases prospective in effect only (pp. 296-306) and "therefore inapplicable" to Stovall's case (p. 296), the Supreme Court (again per Mr. Justice Brennan) considered (pp. 301-302) whether Stovall was "entitled to relief on his claim that in any event the confrontation ... was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." After stating that the "practice of showing suspects singly to persons for ... identification, and not as part of a lineup, ... [had] been widely condemned," the opinion (p. 302) proceeded, "However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the
The confrontation in the present case, of course, was less immediately imperative than in the Stovall case. It was likely that Greenberg, a student, would be available at trial, whereas the widow in the Stovall case was seriously wounded and might die. It was, however, entirely reasonable for Officer Fallon to take Bumpus to 214 Hemenway Street upon his apprehension. Although Officer Fallon testified that he was in a one man cruiser when he first went to the scene of the crime, the somewhat ambiguous evidence indicates other officers went with him and, in any event, were there upon his return. It was wholly appropriate for Officer Fallon to desire the assistance of brother officers in taking Bumpus to the station and to provide them with transportation. Also, despite the apprehension of a suspect, closely fitting the description of the intruder, in the immediate vicinity of the offence and within a brief period, Officer Fallon reasonably may have desired to know whether Greenberg thought Bumpus was the intruder.
Reasonable confrontations of this type, in the course of (or immediately following) a criminal espisode, seem to us to be wholly different from post-indictment confrontations (such as those in the Wade and Gilbert cases) in serious crimes, after a significant interval of time, and in the absence of already appointed counsel. The Supreme Court of the United States has not applied the principle of the Wade and Gilbert cases in such circumstances. Until we have more guidance than at present about the scope of necessary application of these cases, we shall regard them as not intended to apply to facts like those in the case at bar. This is an area where proper police protection of the public may be greatly embarrassed by rigid rules restricting intelligent, fair, police action. Such action must be appraised with commonsense appreciation of the problems which confront policemen patrolling a residential area. See United States v. Ventresca, 380 U.S. 102, 108-109, 111-112. See also Commonwealth v. Wilbur, 353 Mass. 376, 382-383, cert den. 390 U.S. 1010. The most recent decisions of the Supreme Court may lend some support to our view. Simmons v. United States, 390 U.S. 377, 382-386. See Biggers v. Tennessee, 390 U.S. 404 (but see pp. 405-406). Cf. Wright v. United States, 404 F.2d 1256 (Ct. App. D.C.).
The trial judge was aware of the standards laid down in the Supreme Court cases. The record shows that he permitted
3. We think that what was said in the Gilbert case, 388 U.S. 263, 273 (see fn. 1, supra) about out-of-court identifications in the absence of counsel, is inapplicable to the present record. Greenberg's testimony, so far as not struck out, concerning his observation of Bumpus in the custody of Officer Fallon related only to what he then saw as to Bumpus's apparel and color. Similarly, his description of the intruder was merely a statement of what he observed. We hold that there was no improper supporting of an in-court identification by evidence of prior identification. Greenberg's description of Bumpus in custody was essentially only a duplication of that given by Officer Fallon, who, of course, had not been present during the intrusion, and was not barred from describing Bumpus's appearance at the time of the arrest.
4. Bumpus also assigns as error denial of a motion to dismiss the indictment on the ground that it was returned on insufficient evidence. From cross-examination it appeared that neither Greenberg nor Officer Fallon testified before the grand jury. This evidence proves only that these two witnesses did not appear before the grand jury. See Commonwealth v. Coco, ante, 78, 79-80. It does not exclude the possibility that other officers present on the morning of the offence testified or that a summary of the available evidence was given by an investigator, essentially on the basis considered in Commonwealth v. Ventura, 294 Mass. 113, 119-120. See Commonwealth v. Geagan, 339 Mass. 487, 499; Costello v. United States, 350 U.S. 359, 363.