Com. v. Blow

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore HENNESSEY; KAPLAN
Citation370 Mass. 401,348 N.E.2d 794
Decision Date07 June 1976
PartiesCOMMONWEALTH v. Carton J. BLOW.

Page 794

348 N.E.2d 794
370 Mass. 401
COMMONWEALTH
v.
Carton J. BLOW.
Supreme Judicial Court of Massachusetts, Worcester.
Argued Dec. 2, 1975.
Decided June 7, 1976.

Page 795

Robert A. Stolzberg, Roxbury, for defendant.

John M. O'Connor, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and QUIRICO, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

Tried upon indictments for rape (G.L. c. 265, § 22) and unarmed robbery (G.L. c. 265, § 19), the [370 Mass. 402] defendant Carlton Blow was acquitted by a Worcester County jury of rape, and convicted of the robbery. His appeal under G.L. c. 278, §§ 33A--33G, is here on direct review pursuant to G.L. c. 211A, § 10(A).

The jury may be taken to have adopted a view of the facts roughly as follows. Around midnight of October 8, 1972, the complainant, who had been drinking very heavily, went to Mr. Ed's Cafe to buy two six-packs of beer and to have some beer at the bar. The defendant and his companion, Vincent Wolochowicz, 1 were seated at a booth and had a clear view of her pocketbook as she paid. After roaming about the bar talking with several of the customers, the complainant settled into the booth with the pair. They were all 'laughing and kidding.' At one point in the evening the complainant tried to entice Wolochowicz into the ladies' room. At closing, the three left the bar together in a cab and during the ride there was a dispute as to whether Wolochowicz's recollection of a prior sexual encounter with the complainant was correct. (The complainant's own testimony was that she arrived at Mr. Ed's shortly before closing time to buy beer and that as she departed the two men rushed up behind her and jumped into the cab with her.)

On the defendant's order the cab stopped at a used car lot. Despite the complainant's protestations that she wanted to go home, the men pulled her out of the cab, mentioning something about getting a bottle and going to the 'El Morocco.' As the cab left, the two guided the complainant to the back of the lot. Wolochowicz said, 'Give me your pocket.' He twisted the complainant's arm and wrenched her purse from her, tearing the strap. The defendant observed Wolochowicz take the pocketbook. He pushed the complainant into the back seat of a junk car and engaged in intercourse with her. In the meantime Wolochowicz went through the pocketbook removing $280. He yelled to the defendant, 'Hey, we've got two hundred.' Wolochowicz [370 Mass. 403] threatened to kill the complainant if she turned them in. He gave her $3 and a dime, saying, 'Call a cab.' Then Wolochowicz divided the money he had taken from the pocketbook, giving the defendant $100. The men fled from the scene together.

The complainant went to a nearby phone booth and telephoned the cab company, reaching the dispatcher who, as it happened, had shared the front seat in the cab with the driver on the trip to the car lot. She said she had had 'problems' with the two men, but she did not mention the specifics. A cab arrived and took the complainant to the cab office where she told the dispatcher that she had been raped and robbed. She was taken to the police station, where she made a statement, and was then driven to a hospital for examination. That day she selected pictures of Wolochowicz and

Page 796

the defendant from a set, and later she pointed out the defendant at a lineup.

The defendant challenges his conviction for the unarmed robbery claiming that there was error in admitting the details of the complainant's statement to the dispatcher; in the instructions to the jury on intent and joint venture; and in denying the defendant's motions for a directed verdict at the close of the prosecution's case and before submitting the case to the jury. There was no error. We affirm the judgment.

1. The dispatcher, called by the Commonwealth after the complainant herself had testified, described the complainant's statements in the office of the cab company shortly after the events in the used car lot. His direct testimony was that '(s)he had said that she had been raped and robbed of three hundred dollars' and that she had said the defendant and Wolochowicz 'had taken her out into a car in this parking lot and taken her pocketbook away from her, (and) took the money out. And she had said that the small guy (the defendant) had taken her clothes off and raped her.' Defense counsel objected to the questions eliciting this testimony but the judge admitted it under the 'fresh complaint' doctrine. See Commonwealth v. Bailey, --- Mass. ---, --- a, 348 N.E.2d 746[370 Mass. 404] (1976) decided this day. The defense then moved to strike the testimony so far as it related to the robbery, but the judge ruled that the entire statement was admissible.

The defendant does not now attack head-on our rule which admits the details of the fresh complaint as part of the prosecution's case in chief to corroborate the complainant's court testimony (see Commonwealth v. Bailey, supra at --- b, 348 N.E.2d at 746); the argument is rather that our rule should not hold, or should be qualified, in the particular case where a defendant is charged with a second crime in addition to rape and the complaint extends to both crimes. 2 It is pointed out that such a complaint would have been inadmissible for the purpose in a trial charging the defendant with the second crime alone, and admission of the testimony here may be seen as especially improper because the defendant, as it turned out, was acquitted of the charge of rape.

As in Commonwealth v. Bailey, we think it clear that if there was any error in admitting the testimony, it was technical, not material error, and hardly ground for reversal. The dispatcher's statements 'were merely a summary of her (the complaint's) oral testimony at...

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44 practice notes
  • Com. v. Soares
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 8, 1979
    ...while sharing with the principal the mental state required for the crime is guilty as a principal. See, e. g., Commonwealth v. Blow, 370 Mass. 401, 407-408, 348 N.E.2d 794 (1976); Commonwealth v. Richards, 363 Mass. 299, 307-308, 293 N.E.2d 854 (1973). The jury may infer the requisite menta......
  • Com. v. Bailey
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 7, 1976
    ...the defendant is charged with other crimes in addition to rape, and the fresh complaint encompasses them all, see Commonwealth v. Blow, 370 Mass. 401, 348 N.E.2d 794 (1976) (Mass.Adv.Sh. (1976) 1437), decided this day. In fact this is the situation in the present case, but the defendant mak......
  • Com. v. Lavalley
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 15, 1991
    ...which is a mere summary of the victim's testimony at trial is cumulative and not prejudicial to the defendant. See Commonwealth v. Blow, 370 Mass. 401, 404, 348 N.E.2d 794 (1976); Commonwealth v. Izzo, 359 Mass. 39, 43, 267 N.E.2d 631 (1971). The fact that, in this case, the fresh complaint......
  • Com. v. Edgerly
    • United States
    • Appeals Court of Massachusetts
    • May 21, 1982
    ...here that the testimony would inflame the jury. Commonwealth v. Bailey, 370 Mass. 388, 393, 348 N.E.2d 746 (1976). Commonwealth v. Blow, 370 Mass. 401, 404, 348 N.E.2d 794 (1976). And the judge was within the bounds of his discretion. Commonwealth v. McCarthy, --- Mass.App. ---, ---, Mass.A......
  • Request a trial to view additional results
44 cases
  • Com. v. Soares
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 8, 1979
    ...while sharing with the principal the mental state required for the crime is guilty as a principal. See, e. g., Commonwealth v. Blow, 370 Mass. 401, 407-408, 348 N.E.2d 794 (1976); Commonwealth v. Richards, 363 Mass. 299, 307-308, 293 N.E.2d 854 (1973). The jury may infer the requisite menta......
  • Com. v. Bailey
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 7, 1976
    ...the defendant is charged with other crimes in addition to rape, and the fresh complaint encompasses them all, see Commonwealth v. Blow, 370 Mass. 401, 348 N.E.2d 794 (1976) (Mass.Adv.Sh. (1976) 1437), decided this day. In fact this is the situation in the present case, but the defendant mak......
  • Com. v. Lavalley
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 15, 1991
    ...which is a mere summary of the victim's testimony at trial is cumulative and not prejudicial to the defendant. See Commonwealth v. Blow, 370 Mass. 401, 404, 348 N.E.2d 794 (1976); Commonwealth v. Izzo, 359 Mass. 39, 43, 267 N.E.2d 631 (1971). The fact that, in this case, the fresh complaint......
  • Com. v. Edgerly
    • United States
    • Appeals Court of Massachusetts
    • May 21, 1982
    ...here that the testimony would inflame the jury. Commonwealth v. Bailey, 370 Mass. 388, 393, 348 N.E.2d 746 (1976). Commonwealth v. Blow, 370 Mass. 401, 404, 348 N.E.2d 794 (1976). And the judge was within the bounds of his discretion. Commonwealth v. McCarthy, --- Mass.App. ---, ---, Mass.A......
  • Request a trial to view additional results

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