6 Mass. App. Ct. 618 | Mass. App. Ct. | 1978
The defendant was found guilty after a jury-waived trial in the Superior Court of assault and battery by means of a dangerous weapon and of the unlawful carrying of a firearm on his person. His appeal is here pursuant to the provisions of G. L .c. 278, §§ 33A-33G.
The principal witnesses for the Commonwealth at trial were the victim of the assault and battery, Eugene Trioli, and his companion Christopher Johnson. They testified as immunized witnesses following grants of immunity pursuant to the provisions of G. L. c. 233, §§ 20E and 20F.
Before addressing the only assignment of error argued, viz., the denial of the defendant’s motion for a finding of not guilty, we summarize the evidence.
From the testimony of Trioli and Johnson there was evidence that on April 5, 1976, at about 11:30 p.m., they entered the Normandy Lounge on Essex Street in the section of Boston known as the "combat zone.” Johnson ordered a beer but Trioli refused to order. Following her conversation with two men at the end of the bar, the barmaid informed Trioli that he must order a drink. He again refused. Almost immediately thereafter the defendant, after conversing with the two men at the end of the bar, approached Trioli and struck him on the head with a club which resembled a police nightstick. A scuffle ensued. Johnson took the club from the defendant and hit him on the head, a blow which felled him. Then Trioli and Johnson, observing the approach of the two men with whom the barmaid had talked, made their exit by a fire door entering upon an alley and thence on to Essex Street where they saw the defendant and the two men standing in the door of the lounge.
Johnson and Trioli continued along Essex Street where they were met by police in a cruiser. Trioli surrendered his revolver, for which he had a license, to the police who testified at trial that the weapon was fully loaded with five or six rounds and no expended shells. Police officers related that Trioli and Johnson and the defendant were all taken to the Massachusetts General Hospital by the police and that shortly thereafter the police found a loaded .25 caliber semi-automatic under a car in the parking lot adjacent to the lounge. At trial this weapon was identified by Trioli as being similar in appearance to the small caliber weapon held by the defendant during the shooting.
A police ballistician testified that the weapon was a .25 caliber automatic with an obliterated serial number and a single live round, that the weapon was capable of being fired, that its magazine had a capacity of eight bullets when fully loaded and that prior to a firing test made by him there was evidence in the firing chamber which indicated that the weapon had been fired.
The corroborative evidence offered against the defendant in this case consisted of the following: (1) The discovery near the Normandy Lounge by the police of the .25 caliber gun resembling that allegedly used by the defendant; (2) police testimony which tended to prove that this gun had been fired while Trioli’s gun, containing five or six rounds, had not; and (3) the hospital record, which not only confirmed the fact of Trioli’s wounds, but corroborated testimony of Trioli and Johnson indicating that Trioli had been shot from behind.
No testimony, other than that of the immunized witnesses, confirmed that it was the defendant who stood at the doorway of the Normandy Lounge firing a gun at Johnson and Trioli. However, § 201 does not "require corroborating testimony identifying the defendant as a par
In Commonwealth v. Scanlon, 373 Mass. 11, 20 (1977), in which the defendant and his immunized accomplice had forced the victim into a car and taken him for a ride which ended in the victim’s being shot to death, the defendant admitted to most details of the incident except the shooting itself which he attributed to the immunized accomplice. There the court noted that "the testimony of the immunized witness was corroborated under ... [the DeBrosky] standard as to one element of proof essential to convict the defendant — that... [the victim] died as the result of gunshot wounds to the head.” Ibid. Thus, there was adequate corroboration "despite the fact that only ... [the immunized witness] and ... [the defendant] could say how the killing actually occurred.” Ibid. Similarly, in the instant case, independent evidence establishing that the defendant did the shooting is not required under § 201. See Commonwealth v. Doyle, 5 Mass. App. Ct. 544, 550 (1977).
The requisite proof for conviction on a charge of assault and battery by means of a dangerous weapon (G. L. c. 265, § 15A) consists of a "showing that ... intentional force was applied against the victim, and that it was applied by
Finally, the defendant asserts
Judgments affirmed.
The version of the incident given by the defendant and his witnesses was decidedly different from that related above and introduced by the Commonwealth. The import of his testimony was that Trioli and Johnson were the aggressors, that when he ordered them to buy a drink or get out that both produced weapons, that he was hit on the head and kicked, that the barmaid reported to him that while he was
While the immunized witness in DeBrosky was, unlike Trioli and Johnson in the instant case, an accomplice, it is clear that § 201 applies also to the testimony of an immunized witness other than an accomplice.
There is no substance to the defendant’s contention that the Commonwealth’s failure to introduce evidence, apart from the testimony of the immunized witnesses, to establish a prima facie case entitled him to a finding of not guilty. In disposing of a similar argument in DeBrosky, the court said that the defendant "does not seriously assert that there must be sufficient evidence to convict apart from the testimony of, or evidence produced by, an immunized witness. Indeed, it would be unlikely that immunity would be needed (or granted) if the prosecution had sufficient evidence to convict without the aid of a witness who would testify only if granted immunity.” DeBrosky, 363 Mass. at 727-728.