7 Mass. App. Ct. 4 | Mass. App. Ct. | 1979
The defendant was convicted on indictments charging breaking and entering and assault (G. L. c. 266, § 14), indictment no. 1769, and assault and battery, indictment no. 1771; he appeals pursuant to G. L. c. 278, §§ 33A-33G. The defendant assigns as error (among other assignments of error) an instruction to the jury in answer to a question which they put to the judge after they had retired to deliberate. We conclude that the instruction was erroneous.
Defense counsel attacked the identification, eliciting from Sergeant Amoroso circumstances of the confrontation at the hospital which were suggestive. (But, see Commonwealth v. Cox, 6 Mass. App. Ct. 968 [1979].) Defense counsel also elicited from Sergeant Amoroso that there were empty beer cans in the apartment, and the building superintendent who had gone up to the apartment with Sergeant Amoroso testified that he saw a “lot of beer cans in [the] barrel and trash can” and that “[t]here was one or two on top of the counter.” A neighbor, Mrs. All-
Mrs. Allsopp and her husband also testified that the defendant had been in their apartment from about 12:30 a.m. on October 25, with a number of other people. Mr. Allsopp testified that he went to bed at about 2:00 a.m., and Mrs. Allsopp testified that the defendant was still in their apartment when she saw the police arrive at the victim’s apartment.
During the course of the trial the victim’s hospital report from the Mount Auburn Hospital was introduced in evidence, and the prosecuting attorney read portions of it, including a description of the victim’s injuries. Defense counsel also read various parts of the record, including an entry dated October 29: "Physical improvement continues but — she’s quite a little nervous — Has not had any alcohol for a while.”
The jury retired to deliberate on the third day of trial at 11:30 a.m.; they returned to the courtroom at 4:30 p.m. with the following query: "The jury wants to know if there was a blood test taken upon the victim’s admittance to the hospital that would determine the amount of alcohol in the victim’s system, if any____What were the blood tests taken for?” The judge properly instructed them not to speculate as to the purpose of any blood tests which the hospital record might disclose; however, he went on to instruct the jury that: "The testimony that you have about the events that night comes from [the victim] herself and from Detective Amoroso, who observed her
Since there must be a new trial, we need not deal with the defendant’s argument that the alibi charge was erroneous, and that a reversal was required for that reason though no exception was taken. This case was tried before Commonwealth v. Cobb, 5 Mass. App. Ct. 421, 423-424 (1977), and we assume that at a new trial the judge will avoid characterizing alibi as a defense and will not single out alibi evidence for special attention without a countervailing instruction that "an alibi may be the only refuge of the innocent.” See Commonwealth v. McLeod, 367 Mass. 500, 502 (1975). Other matters concerning the charge which the defendant raises are not likely to recur, and the questions raised regarding the admission of evidence are best left to be determined at a new trial, if they arise.
Accordingly, on indictment no. 1769, the judgment is reversed, and the verdict set aside. Since that indictment and indictment no. 1771, which was placed on file after a verdict of guilty, should be disposed of together, the verdict on indictment no. 1771 is set aside. Commonwealth v. Boone, 356 Mass. 85, 88 (1969). See Commonwealth v. Delgado, 367 Mass. 432, 437-438 n.4 (1975). Contrast Commonwealth v. Hoffer, 375 Mass. 369-370 n.l (1978).
So ordered.