9 Mass. App. Ct. 357 | Mass. App. Ct. | 1980
The defendant has appealed from his convictions by a jury on crimes of armed robbery while masked,
1. Directed verdicts. The defendant’s motion for directed verdicts of acquittal raised the sole question whether the Commonwealth’s evidence was sufficient to identify him as one of the two armed and masked robbers responsible for the commission of the crimes.
The offense occurred on February 1, 1978, at approximately 2:30 p.m. when two masked men, one armed with a .45 caliber revolver, and the other with a knife, entered an apartment in Brighton occupied by Eric Best and Bart Axel-rod. The intruders bound and tied Best, Axelrod, and their female guest with rope, covered the victims’ heads with pillow cases, rummaged through the apartment looking for marihuana and money, and, after finding neither, stole three electric guitars. The victim Best testified that he had worked and socialized with one of the robbers, David Tyler, and had also given Tyler guitar lessons. Through Tyler, Best had met the defendant Lutz, and had visited Lutz’s apartment on several occasions. One visit by Best with the defendant extended for forty-five minutes to one hour. There was testimony that the defendant had visited the victims’ apartment earlier on the day of the robbery. Best testified that he recognized Lutz as one of the robbers “[ijmme-diately . . . [t]he second he opened his mouth . . . [bjecause I had heard his voice before ... I had seen him that morning and seen him a couple of times. I know what his voice sounds like.” Best also testified that, in addition to his familiarity with the defendant’s voice, he recognized the defendant from the fact that Lutz is marked by a distinctive anatomical feature (protruding buttocks).
All of this evidence, considered in its light most favorable to the Commonwealth, together with reasonable inferences that could be drawn therefrom (Commonwealth v. Sandler, 368 Mass. 729, 740 [1975]; Commonwealth v. Sampson, 7 Mass. App. Ct. 514, 517 [1979]), was sufficient to permit a rational jury to conclude beyond a reasonable doubt that the defendant was one of the robbers. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979); Commonwealth v.
2. Prosecutor’s closing argument. The defendant argues that, in his summation, the prosecutor assumed that none of the victims could identify the defendant and then improperly suggested to the jury that the defendant could be convicted solely on the testimony of Policastro and the police detective. Even if we accept the defendant’s premise that a
3. Jury instructions. The judge, at the beginning of his charge, after explaining the function of the grand jury and the role of the indictments, told the jury in the course of his explanation of the presumption of innocence that “the score, as far as this defendant is concerned, when this case starts, is nothing to nothing.” The defendant argues that this comment eroded the presumption of innocence and im-permissibly shifted the burden of proof to him.
To the extent that the metaphor was designed to illustrate a fundamental principle of adjectival criminal law, it was not apt. In context, however, the remark was apparently calculated to impress upon the jury that both parties in a criminal case stand before the court with equal dignity and that neither should be arbitrarily favored by way of prejudice against the Commonwealth or against defendants as a class. See United States v. Dark, 597 F.2d 1097, 1099 (6th Cir. 1979) (comment “[njeither side has the edge” probably designed to stress jury neutrality; confusion, if any, cured by proper instructions on presumption of innocence and
We also cannot accept the defendant’s argument that the judge was obliged sua sponte to “remind the jury that the mere fact that the defendant later had possession of the stolen guitars was not sufficient to convict him.” In the absence of a request for an instruction on the point, the judge was not obliged to explain to the jury the defendant’s hypothesis any more fully than he did. The jury, by reason of defense counsel’s cross-examination, the final arguments,
Finally, we are satisfied that the judge’s instructions as to possible mistaken identification by the victims were adequate. In a trial that occurred before the decision in Commonwealth v. Rodriguez, 378 Mass. 296, 301-302 (1979), the judge was attentive to the question of mistaken identification, and he did not improperly submerge that crucial issue by casting it in terms of a veracity contest. See Id. at 301-302 (1979); S.C.,6 Mass. App. Ct. 738, 742-744 (1978). He informed the jury that “the big question ... is [whether] you are satisfied beyond a reasonable doubt that the right man is here?” He also told the jury in evaluating the issue to “size” the witnesses up, to consider the impressions made by the witnesses, to gauge their testimony in the light of the cross-examination, and to examine the opportunities the witnesses had to identify the robbers. He expressly linked the jury’s identification analysis to all the principles of law that he had already explained, which included complete instructions on the burden of proof and on the meaning of reasonable doubt. The instructions dealing with this aspect of the case covered, in different language, most high points of the model charge contained in the appendix to the Rodriguez decision. 378 Mass, at 310-311. In the absence of a request at the trial by defense counsel for more abundant judicial discourse on the subject, the instructions were adequate. See Commonwealth v. Bowden, 379 Mass. 472, 482-484 (1980).
Judgments affirmed.
One indictment charging the defendant with two counts of receiving stolen goods was not submitted to the jury and was placed on file without a change of plea with the defendant’s consent.
A fourth claim was briefed but expressly waived at oral argument by the defendant’s appellate counsel.