Commonwealth v. HoggCommonwealth v. Hogg
- Reporters:
- , ,
- Before:
- Braucher
The defendants were tried together to a jury, and appeal from their convictions under G. L. c. 278, § § 33A-33G. Monroe and Williams were convicted on
We summarize the evidence on behalf of the Commonwealth. About 8:30 a.m. on September 14, 1971, Thomas Fratto was sitting in his car on Arlington Street in Boston. Monroe and Williams, both armed with .38 caliber pistols, ordered him into the back seat, took his wallet, and placed a rope around his neck. They bought gasoline with Fratto’s money. Monroe drove first to Franklin Park and then to an abandoned apartment house in Dorchester. Monroe told Williams to take Fratto to the third floor, and Williams did so and tied and gagged Fratto. Later Monroe entered the room, tightened the bonds, and both assailants left the room. Still later Williams returned, tightened the bonds again, and, when Fratto struggled, shot him four times.
Despite his wounds Fratto managed to alert neighbors, who called the police. Officers arrived at the scene about 9:40 a.m. and Fratto gave them a description of his car, including the license number; he described the assailants simply as “two black guys.” This information was given to the police radio dispatcher, and police officers soon observed the car in Mattapan. Shortly after 10 a.m. the car was stopped and its three occupants arrested and searched. Monroe, the driver, had a loaded .38 caliber pistol; Williams, in the right rear seat, had a loaded .38 caliber pistol and a knife and was wearing rubber gloves; Hogg, in the left rear seat, had a loaded .25 caliber pistol, a knife and rubber gloves. Fratto’s wallet was on the floor of the car.
A spent bullet found in the abandoned apartment house could have been fired from Williams’s pistol. One of two bullets removed from Fratto had been so fired. Tests indicated the presence of blood on the knives taken from Williams and Hogg.
In his closing argument, the prosecuting attorney referred to the lineup.
2
On prompt objection, the judge said there was “no evidence of that before the jury,” the prosecuting attorney apologized, and no further reference to the lineup was made. The judge denied motions for a mistrial, concluding that the reference was inadvertent. There was no error. The defence counsel had previously brought the subject of the lineup to the attention of the jury in recross-examination of Fratto, and the judge could properly conclude that the danger of prejudice from an inadvertent improper remark was not so substantial as to require a mistrial. See
Commonwealth
v.
Smith,
342 Mass.
2. Bullets. Monroe and Williams contend that two spent bullets admitted in evidence were not properly identified. As to one, a police officer from the crime laboratory testified that he saw another officer pick up a bullet in the apartment house where Fratto was shot. Shown a bullet, he testified, “It appears to be the same.” Later a police ballistician testified that he received the bullet from the officer who picked it up and that guns taken from Monroe and Williams were capable of firing such a bullet.
As to the second bullet, the doctor who operated on Fratto at the hospital testified that he removed two bullets from Fratto and gave them to a nurse. The assistant director of the operating room testified that a nurse received the bullet offered in evidence and, in the ordinary and usual course of business, a receipt was made out naming Fratto and the doctor. A police officer testified that he picked up the bullet and signed the receipt at the hospital and that he turned the bullet over to the ballistics unit and received a second receipt. The receipts were admitted in evidence. The ballistician testified that he received the bullet from the officer who picked it up at the hospital, that another officer signed the receipt for it, that he test fired the gun taken from Williams and that in his opinion the spent bullet was fired from the weapon.
There was no error. A complete chain of custody was established for both bullets. Compare
Commonwealth
v.
Rodriquez,
364 Mass. 87, 94-95 (1973);
Commonwealth
v.
Pickles,
364 Mass. 395, 399 (1973). In the case of the bullet from the hospital, there was evidence to warrant the findings required by
3.
Lesser included crimes.
Monroe claims error in the judge’s refusal to charge the jury that, under the indictment for armed robbery, the jury could find the defendant guilty of unarmed robbery, larceny, or assault. Williams claims error in refusal to charge that, under the indictment for larceny of a motor vehicle, the jury could find the defendant guilty of use without authority.
Where there is no “rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense,” no instruction need be given on the lesser offence. Am. Law Inst., Model Penal Code, § 1.07 (5) (Proposed Official Draft, 1962). Commonwealth v. McKay, 363 Mass. 220, 228 (1973). Driscoll v. United States, 356 F. 2d 324, 327 (1st Cir. 1966), vacated on other grounds 390 U. S. 202 (1968). People v. Mussenden, 308 N. Y. 558, 562-563 (1955). There was no rational basis in the testimony for a conclusion that Monroe and Williams robbed Fratto but were unarmed, that they stole his wallet or car otherwise than through force or fear, that they assaulted him without weapons and without stealing, or that they took his car only for a “joy ride.” The judge properly instructed the jury that larceny required an intent to deprive the owner permanently of his property and that if one or both defendants “were just going to skylark, using it without authority and bring it back to him, or abandon it at a place where it might be recovered, they would not be guilty of larceny.” The judge was not obligated to assist the jury to come to an irrational conclusion.
4.
Assaults by Monroe.
Monroé asserts error in the denial of his motions for directed verdicts on the indictments charging him with assault and battery by means
5. Severance. Hogg moved for a separate trial, stating that a joint trial would result in prejudice by denying him the opportunity to call his codefendants as witnesses and by confusing the jury as to the complex and numerous issues presented. He also informed the judge that he desired a jury waived trial. In response to a question from the judge, the prosecuting attorney said that severance would not put the Commonwealth to great expense but that the indictment of Hogg arose out of his arrest in the company of Monroe and Williams after the series of crimes charged against them. The judge then denied the motion for severance, and Hogg withdrew his request for a jury waived trial.
Severance rested in the sound discretion of the judge.
Commonwealth
v.
Iannello,
344 Mass. 723, 727-728 (1962), and cases cited.
Commonwealth
v.
Connearney,
359 Mass. 200, 204-205 (1971). The three defendants were all charged with illegal possession of firearms at the time they were arrested together, and the judge could assume that the same evidence would be offered to prove these offences against each. Compare
Commonwealth
v.
Blow,
362 Mass.
6. Hogg’s knife and gloves. Hogg asserts error in the admission in evidence of a knife and rubber gloves found on his person at the time of his arrest. No exception was taken as to the knife, and we do not consider it. Commonwealth v. Foley, 358 Mass. 233, 236 (1970). As to the gloves, no exception was taken to the testimony of a police officer that he found such gloves on Hogg’s person at the time of arrest, but there was an exception to the admission in evidence of the gloves themselves. They added nothing of substance to the testimony. Commonwealth v. Locke, 335 Mass. 106, 113 (1956). See Commonwealth v. West, 357 Mass. 245, 247-248 (1970).
Judgments affirmed.
Notes
“Mr. Foreman and ladies and gentlemen of the jury, if any of you were so unfortunate to live through that experience which Fratto did, could you ever erase from your minds the faces of your assailants? And that is illustrated by the fact that when Mr. Fratto went to the line-up — .”