370 Mass. 147 (1976), Commonwealth v. Kelley

Citation:370 Mass. 147, 346 N.E.2d 368
Party Name:COMMONWEALTH v. Kevin KELLEY.
Case Date:April 15, 1976
Court:Supreme Judicial Court of Massachusetts
 
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Page 147

370 Mass. 147 (1976)

346 N.E.2d 368

COMMONWEALTH

v.

Kevin KELLEY.

Supreme Judicial Court of Massachusetts, Middlesex.

April 15, 1976

       Argued March 1, 1976.

       Francis C. Newton, Jr., Boston, for defendant.

       Robert M. Buchanan, Legal Asst. Dist. Atty., for the Commonwealth.

       Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

       HENNESSEY, Chief Justice.

       The defendant was convicted of the crimes of breaking and entering in the day-time, and larceny of less than $100, after trial bye jury in a District Court. The defendant was sentenced to serve three months in a house of correction as to each conviction, with the sentences to be served concurrently. The judge entered an

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order staying execution of the sentences pending [346 N.E.2d 369] appeal. The appeal is before us on the defendant's bill of exceptions.

       The defendant argues two issues: first, that the denial of his motions for directed verdicts as to both complaints was error; and second, that there was error in the denial of his motions for a new trial. We conclude that there was no error and affirm the judgments.

       The evidence most favorable to the Commonwealth was as follows. John R. McLean, Jr., a detective with the Sudbury police department, received a call at approximately 11:15 A.M. on July 3, 1974, and went to the residence of Frank J. Vazal at 222 Hudson Road in Sudbury where he entered the house through a screen door leading to a porch at the rear of the house. The door had some scratches near the latch. An inspection of the house revealed that furniture drawers had been opened and items had been pulled from the drawers in various rooms. In opened red-handled greenhouse knife was also found.

       Mrs. Vazal, who resides at 222 Hudson Road, had been away from the house from about 10 A.M. to noon on July 3, 1974. She testified that she left the house locked and that she had never seen the red-handled knife before. She described the condition of the premises before and after the burglary. She discovered that two children's banks, a piggy bank and another bank in the shape of a Tootsie Roll, which combined had contained a total of between $10 and $24, were missing.

       About 11:15 A.M. on July 3, 1974, two sisters, Denise Dansro and Rene e Dansro, ages fifteen and seventeen, who resided at 221 Hudson Road in Sudbury, across Hudson Road from the Vazal home, saw a maroon 1966 Chevrolet Chevelle automobile turn onto Crestview Drive, a short cul-desac road running off Hudson Road and along one side of the Dansro home. The car turned around at the end of Crestview Drive, returned to a spot near the intersection with Hudson Road, and parked. The driver remained in the vehicle. Because Crestview Drive has little traffic and the car had not stopped near any of the houses on Crestview Drive, the Dansro sisters were curious as to

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why it was there. Within a few minutes a man carrying a brown paper bag in his arms ran toward Hudson Road down a lightly wooded depression between the Vazal house and a neighboring house on property next door or adjacent to the Vazal property. The Dansro girls were in front of their home and observed him run down to Hudson Road, arriving at a spot about 130 feet from them. Denise was on the lawn and Rene e was a few feet away on the front steps of their house. Each of the sisters, later at the trial, identified the man she had observed as the defendant, Kevin Kelley. Although not certain just how long she had observed Kelley, each girl admitted that it was no more than twenty-five seconds.

       As the man ran to Hudson Road, the car turned out of Crestview Drive onto Hudson Road, stopped to pick up the man and sped off. The Dansro girls immediately called the police and provided a description of the men.

       Subsequently, one Mulkern was charged by the Sudbury police with having been the driver of the maroon Chevrolet. Thereafter, Detective McLean by chance observed the defendant Kelley in court on another matter with Mulkern. Because Kelley fitted the descriptions given by the Dansro sisters, McLean obtained pictures of Kelley. Approximately a week after the event, McLean showed ten photographs of men selected to resemble each other, including one of Kelley, to each of the sisters at different times, and each picked out Kelley's picture.

       At...

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