Com. v. D'Ambra

• Decision Date: 10 April 1970
• Citation: 357 Mass. 260,258 N.E.2d 74
• Parties: COMMONWEALTH v. Michael N. D'AMBRA, Jr. et al. (and five companion cases 1 )
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 74

258 N.E.2d 74

357 Mass. 260

COMMONWEALTH

v.

Michael N. D'AMBRA, Jr. et al. (and five companion cases

¹

).

Supreme Judicial Court of Massachusetts, Middlesex,

Argued March 5, 1970.

Decided April 10, 1970.

Richard C. Chambers, Everett, for defendant D'Ambra.

John F. Mee, Asst. Dist. Atty. (David A. Mills, Asst. Dist. Atty., with him), for the Commonwealth.

John A. Maiona and Henry P. D'Alessandro, Boston, for defendant Marshall.

Before WILKINS, C.J., and SPALDING, KIRK, REARDON, and QUIRICO, JJ.

REARDON, Justice.

The defendants were indicted for various offences connected with the attempted robbery while armed of the Oxford Grill in Cambridge. They are here on eight assignments of error, certain of which are similar in the case of each defendant.

It could have been found that at 10:15 P.M. on September 26, 1967, two men who were wearing masks and who were armed attempted to commit robbery in the basement office of the grill. They were foiled in their endeavors to rob the owner of the grill and his son, and they thereupon ran out the door with the son in pursuit. Around 10:30 P.M. the Cambridge police arrested the defendant D'Ambra about one eighth of a mile from the grill, and the defendant Marshall was arrested later by the Boston police. There will be other references to testimony as required.

1. In his opening to the jury the district attorney stated that a police witness during the course of trial would testify that one of the suspects, who was apprehended by the Cambridge police, held a gun in his hand at the time. The defendant D'Ambra moved for a mistrial contending that he had previously pleaded guilty to the charge in another proceeding of unlawfully carrying a weapon and that the 'statements by the District Attorney were an attempt on the part of the prosecution to introduce into evidence other crimes of the accused.' We consider this contention without merit. The defendant D'Ambra was charged with armed assault and attempted armed robbery. A necessary element in both crimes was the possession of a weapon. See Commonwealth v. Nickologines, 322 Mass. 274, 277, 76 N.E.2d 649, and cases cited. Evidence that the defendant was arrested with a gun in his possession was material and relevant to the issues being tried and hence properly admissible. People v. Goldstein, 295 N.Y. 61, 64--65, 65 N.E.2d 169. The district attorney in his opening remarks was merely indicating what the Commonwealth proposed to prove during the course of the trial and his statement was not prejudicial.

2. In his closing argument to the jury the district attorney remarked that 'the defendants could bring in any witnesses they wanted * * *.' The defendants complain of the prejudice flowing from this statement although there was an immediate interruption of the argument by the judge who instructed the jurors that the district attorney was being somewhat enthusiastic. He said among other things, 'It is not the burden of the defendant to bring in any witnesses in this case; * * * the burden is entirely on the Commonwealth, * * * you will disregard the remark of the District Attorney.' We view the judge's instructions as sufficiently strong to counteract the adverse effect of the unfortunate comment of the district attorney. Commonwealth v. Crehan, 345 Mass. 609, 615, 188 N.E.2d 923, and cases cited. COMMONWEALTH V. GORDON, MASS. , 254 N.E.2D 901^A.

3. The defendant D'Ambra complains that an in-court identification of him by the owner of the grill was tainted by a prior confrontation between the two which occurred at the police station following his arrest. While the testimony relative to this police station confrontation was somewhat conflicting with respect to whether it occurred on purpose, the trial judge found it to have occurred by chance and not intentionally. Any conflict in the evidence under these circumstances was for the trial judge to resolve. Commonwealth v. Valcourt, 333 Mass. 706, 710, 133 N.E.2d 217; Commonwealth v. Femino, 352 Mass. 508, 512--513, 226 N.E.2d 248. His findings 'which we must accept as true' are conclusive. Commonwealth v. Blondin, 324 Mass. 564, 566, 87 N.E.2d 455, cert. den. 339 U.S. 984, 70 S.Ct. 1004, 94 L.Ed.2d 1387. We note in passing that the police station confrontation in the instant case is markedly different from other confrontation-identification cases where there was a calculated move by the police to bring about pre-trial observations of a suspect by an eyewitness. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno, Warden, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Commonwealth v. Bumpus, 354 Mass. 494, 238 N.E.2d 343, cert. den. 393 U.S. 1034, 89 S.Ct. 651, 21 L.Ed.2d 579; COMMONWEALTH V. COOPER, MASS., 248 N.E.2D 253;^B COMMONWEALTH V. GUILLORY, MASS., 254 N.E.2D 427;^C COMMONWEALTH V. KAZONIS, MASS., 255 N.E.2D 333.^D That an eyewitness accidentally confronts a suspect erases any problem of illegality where the police make no attempt to elicit improperly such an identification. The trial judge found this to be such a case. Notwithstanding the fact that the confrontation which occurred within an hour of the attempted robbery gave the owner of the grill an opportunity to view the defendant D'Ambra's face for the first time, he had noted the defendant's hair style and clothing at the time of the attempted holdup. We find no error in the ruling of the judge.

4. Objection is launched by both defendants to evidence adduced through the son of the owner who engaged in the chase of the robbers. He noticed one of them dropping a mask at the bottom of the stairs leading from the basement office where the attempted robbery took place. He gave this mask later to an officer and identified it during the trial. It was introduced in evidence as an exhibit over the exception of both defendants. The trial judge ruled that the mask was 'not connected specifically with either of them but it's connected with one of them,' and allowed it to be marked as an exhibit. There had been evidence from the father and the son that the attempted robbery had been committed by two men....