6 Mass. App. Ct. 894 | Mass. App. Ct. | 1978
The defendant has appealed from a conviction on so much of an indictment for rape as charged assault with intent to commit rape and from the denial of his motion for a new trial. 1. The defendant claims that he was denied the effective assistance of counsel at his trial. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant’s main contention is that his trial counsel should have made a pretrial suppression motion or requested a voir dire as to testimony concerning a photographic identification of him made by the victim. See id. at 99. See generally Clemons v. United States, 408 F.2d 1230, 1237 & n.4 (D.C. Cir. 1968) (en banc), cert. denied, 394 U.S. 964 (1969). Failure to file a motion to suppress or to request a voir dire of identification testimony is not in and of itself an indication of inadequacy. Commonwealth v. Cross, 4 Mass. App. Ct. 54, 57 & n.2 (1976). There must "be some showing that better work might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). In the present case, even though eyewitness testimony of the victim was the only testimony directly implicating the defendant, there is nothing in the record to indicate that a motion to suppress the photographic identification would have been successful. See Commonwealth v. Cross, supra at 56-57. Compare Commonwealth v. McGrath, 361 Mass. 431, 438-439 (1972). The victim had given the police an accurate description of the defendant as her assailant shortly after the incident, and again the next day. She also described a car similar to the one the defendant owned. It is true that the police asked the victim if she knew the defendant’s family before showing her the pictures, but according to the victim’s testimony she did not recognize the defendant at the time of the incident as anyone she knew. There is thus no indication that the police comment had any effect on the victim. Moreover, as there is no claim that the manner of presentation or the photographs themselves were suggestive, it is clear that the motion to suppress would have had little, if any, chance of success. See Commonwealth v. Botelho, 369 Mass. 860, 865-866 (1976). And finally, the judge (who was the same judge who had presided at the trial), in ruling on the motion for a new trial, specifically found that counsel’s performance did not fall measurably below that which might be ex
Judgment affirmed.
Order denying motion for new trial affirmed.