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Com. v. Hardin1/12/2004
We address the defendant's arguments on appeal as follows:
I. Limits on cross-examination regarding bias. At the time of the robbery, McClung was on probation for driving under the influence. He was not facing any revocation of that probation at that time. It was highly unlikely that the mere fact of his being on probation would influence his initial account of the incident and his selection of the defendant's photograph.
He was subsequently charged with breaking and entering and given a notice of violation of probation. He identified the defendant while in the court house in connection with the new charge and also picked the defendant out of a lineup while this new threat to his liberty was outstanding. By those times, however, he had already picked out the defendant's photograph. By the time of trial, these matters had been resolved, and thus his testimony at trial was not subject to the pressure of any outstanding matters.
The factors listed in Commonwealth v. Santiago, 54 Mass.App.Ct. 656, 662- 664 (2002), are relevant to an analysis of whether the judge acted within his discretion in precluding cross-examination of McClung on outstanding criminal matters. Here none of the factors were in play. The matters pending against McClung did not pose a threat of serious punishment, nor was it likely that leniency would be generated by cooperation since McClung had already strongly identified the defendant and described the crime to the police. There was no nexus between the pending matters and the crime charged. There was no observable intensification of McClung's testimony.
In any event, both the chance identification by McClung at the courthouse and the lineup identification were of greatly diminished importance compared to the initial photographic identification.
II. Narrative testimony of police witnesses. There was no substantial risk of a miscarriage of justice in letting the police witnesses repeat what McClung had told them. McClung testified and was available for cross-examination.
III. Identification procedures. We have examined the photographic arrays and the photograph of the lineup. They were not unduly suggestive. Nor was there any evidence that the police acted in a way that unduly suggested that the defendant be selected during these procedures. Thus the defendant did not receive ineffective assistance of counsel for failing to bring a motion to suppress. The arguments and authorities cited by the Commonwealth at 31-37 of its brief are persuasive on this issue.
Judgment affirmed.
Page 1 Massachusetts DUI Attorneys
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