Opinion
October 30, 1969.
The case was submitted on briefs.
Robert A. Novick Reuben Goodman for the defendant.
Garrett H. Byrne, District Attorney, Theodore A. Glynn, Jr., Assistant District Attorney, John M. Lynch, III, Legal Assistant to the District Attorney, for the Commonwealth.
Bell's appeals from his convictions on two indictments charging respectively armed robbery and robbery following a trial under G.L.c. 278, §§ 33A-33G, inclusive, are based exclusively upon assignments of error that in-court identifications of him by witnesses were inadmissible under United States v. Wade, 388 U.S. 218, Gilbert v. California, 388 U.S. 263, and Stovall v. Denno, Warden, 388 U.S. 293, all recently discussed in Commonwealth v. Bumpus, 354 Mass. 494, and Commonwealth v. Cooper, ante, 74. The judge, following an all day voir dire which he ably guided to the significant factors (see United States v. Wade, 388 U.S. 218, 241) concluded that the identifications to be made in court by three of the witnesses were based on observations made by them at the time of the robberies independent of any confrontation after the robberies. Assuming, arguendo, that the pre-trial identifications made by the witnesses were constitutionally infirm, our consideration of the evidence heard by the judge at the voir dire which we deem to be "clear and convincing" (see United States v. Wade, at 240) satisfies us "beyond a reasonable doubt" (see Chapman v. California, 386 U.S. 18, 24) that the judge's conclusion was right. Commonwealth v. Cooper, ante, 74, 84-85, and cases cited.
Judgments affirmed.