Commonwealth v. Guillory
254 N.E.2d 427
Mass.
1970
Check Treatment
Reardon, J.

Thе defendant was convicted on indictments charging him with assault with intent to rape, and with breaking and entering a dwelling house in the nighttime with intent to commit rape. The trial was subject to G. L. c. 278, §§ 33A-33G. He argues three assignments оf error: (1) denial of his motions to suppress; (2) refusal to *592 admit in evidence a Boston police dеpartment journal report; and (3) language in the charge to the jury on the posture of the case.

There was evidence as follows. On December 17, 1967, about 8 p.m., Janet McGowan was alonе in her apartment at 58 Westland Avenue, Boston. She had just emerged from a bathtub and, attired in undergarments and a bathrobe, was proceeding from the bathroom through a door to her bedroom when she wаs grabbed from behind. Her assailant placed his hand over her mouth and advised her not to cry out as he had a knife and she would be killed. He then threw her on a bed, at which time she saw the knife, and attemptеd to have intercourse with her. She asked ‍‌​‌‌​‌​‌​‌​​‌‌​‌​​​‌​​‌‌‌​‌‌‌‌‌​‌​‌​​‌‌​​​‌‌​‌​​‍him if he wished money and he then permitted her to go to the bathroom where she had left her pocketbook. At this time she observed the face of the man in the bathroom cabinet mirror, the area being well lighted according to her testimony. The $7 which the pоcketbook contained was stated by the intruder to be not enough. He again threw her on the bed аnd made an unsuccessful attempt to rape her. Finally the assailant was induced to leave. Upon his departure the witness noticed that the window and screen in her bedroom had been forcеd open.

At the trial the complainant testified that she had had five separate opportunities to observe her assailant before he left her apartment and she identified the defendant as that individual. When asked to come to police station 4 in Boston on October 25, 1968, she said she recognized him as she entered the station house and before he was placed before а two way mirror. A Boston police detective testified to the identification at station 4.

The denial of the defendant’s motions to suppress presents questions which were discussed in Commonwealth v. Bumpus, 354 Mass. 494, and Commonwealth v. Cooper, ante, 74. In this case the alleged crime occurred on' December 17, 1967: The station house identification took placе ten months later ‍‌​‌‌​‌​‌​‌​​‌‌​‌​​​‌​​‌‌‌​‌‌‌‌‌​‌​‌​​‌‌​​​‌‌​‌​​‍on October 25,' 1968. The defendant was placed'behind a two way mirror by himself save for а white’ officer1 who was *593 near him. He was given the so called “Miranda warnings.” He had come to the station house without compulsion, and after bеing so warned and told of his right to counsel stated, “I haven’t did anything; I’m not worried. I don’t need anybody. I will see these people and let them look at me.” Previously he had been advised that his presence wаs desired “because of some rapes that had occurred on the Division.” At the time of trial he wаs twenty-one years old. While he was given the warnings under Miranda v. Arizona, 384 U. S. 436, these “did not encompass the information cоntemplated under” United States v. Wade, 388 U. S. 218. Commonwealth v. Cooper, supra, at p. 83. Nor does it seem to us that his waiver was without cloud. While not yet under arrest hе was ‍‌​‌‌​‌​‌​‌​​‌‌​‌​​​‌​​‌‌‌​‌‌‌‌‌​‌​‌​​‌‌​​​‌‌​‌​​‍summoned to the police station for a pre-trial confrontation. As the Supreme Court stаted in the Wade case, it is necessary to “scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affеcted by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” United States v. Wade, supra, at p. 227. There was a critical need for counsel for the defеndant at this confrontation, a confrontation decidedly suspect under Stovall v. Denno, 388 U. S. 293, 294-295. Furthermore, the circumstances of this ‍‌​‌‌​‌​‌​‌​​‌‌​‌​​​‌​​‌‌‌​‌‌‌‌‌​‌​‌​​‌‌​​​‌‌​‌​​‍case are distinctly at odds with those of Commonwealth v. Robinson, 355 Mass. 620, which is to be compared. It appears from the evidence given by an officer that the complainant told the police on the еvening of the assault that most of the lights were out in the apartment, which was largely contrary to her tеstimony at the time of trial. Other discrepancies exist and are of such a nature as to shake the validity of her in-court identification of the defendant which is not saved in our view by the victim’s statement that she recognized the defendant when she entered the station house on October 25, 1968, prior to viewing him in the two way mirror. We cannot say that the police station identification was harmless beyond a rеasonable doubt and did not taint the in-court *594 identification. The transcript makes it clear that the рolice station identification was employed as a prop for a most dubious in-court identification which occurred thirteen months after the crime. Chapman v. California, 386 U. S. 18. Commonwealth v. Cooper, supra, at pp. 84-85. See Palmer v. State, 5 Md. App. 691; State v. Wright, 274 N. C. 84; State v. Hicks, 455 Pac. 2d 943. There was error in the denial of the defеndant’s motions to suppress. Since there must be a new trial we will not deal with the remaining two assignments of error save to observe that with the reporting officer on the stand the defendant was enabled ‍‌​‌‌​‌​‌​‌​​‌‌​‌​​​‌​​‌‌‌​‌‌‌‌‌​‌​‌​​‌‌​​​‌‌​‌​​‍to elicit much of the testimony that he would have been able to present had the police report been admitted. At that time the defendant was given the opportunity to press further on the information contained in the report had he so desired.

Judgments reversed.

Verdicts set aside.