Com. v. Johnson

• Decision Date: 26 December 1978
• Citation: 383 N.E.2d 541,6 Mass.App.Ct. 956
• Parties: COMMONWEALTH v. Jeffrey JOHNSON.
• Court: Appeals Court of Massachusetts

Page 541

383 N.E.2d 541

6 Mass.App.Ct. 956

COMMONWEALTH v. Jeffrey JOHNSON.

Appeals Court of Massachusetts, Suffolk.

Argued Nov. 13, 1978.

Decided Dec. 26, 1978.

Steven M. Wise, Brighton, for defendant.

James S. Hamrock, Jr., Sp. Asst. Dist. Atty., Boston, for the Commonwealth.

Before HALE, C. J., and KEVILLE and GRANT, JJ.

RESCRIPT.

The defendant's second substitute bill of exceptions correctly asserts error in the denial by a Superior Court judge, sitting jury waived, of the defendant's motion for acquittal (stated as a motion for a directed verdict) made at the close of the Commonwealth's case, see Commonwealth v. Kelley, 370 Mass. ---, --- ^A, 346 N.E.2d 368 (1976), on a complaint for unauthorized use of an automobile in violation of G.L. c. 90, § 24(2)(A ). Police officers in a cruiser observed a car occupied by three individuals, one of whom was the defendant, proceeding in the wrong direction on a one way street. The defendant was seated on the front passenger seat beside the driver. A third man sat in the rear. After signaling to the operator of the car to pull over, the police observed him turn his head toward the defendant and observed the latter turn his head toward the operator. "Shortly thereafter" the car increased its speed. A chase ensued which ended a few minutes later when the car struck a pole. The other occupants fled. The defendant, who appeared to be "shaken up," was apprehended two or three feet from the car. The defendant stated that he had been hitchhiking and denied knowing either of his companions. He lied to the police in stating that the individual on the back seat, who had successfully escaped, had been the operator rather than the actual driver whom the police then had in custody. Finally, the defendant told the police that "he could not start giving names because that would get him into trouble." The mere presence of the defendant in the stolen car was insufficient to support an inference of knowledge on his part that the use of the vehicle was unauthorized. Commonwealth v. Boone, 356 Mass. 85, 87, 248 N.E.2d 279 (1969). Commonwealth v. Conway, 2 Mass.App. 547, 554, 316 N.E.2d 757 (1974). See Commonwealth v. Flaherty, 358 Mass. 817, 266 N.E.2d 875 (1971); Commonwealth v. Scarborough, 5 Mass.App. ---, --- ^B, 362 N.E.2d 542 (1977); Commonwealth v. Chinn, 6 Mass.App. ---, --- ^C, 383 N.E.2d 90 (1978). However, presence supplemented by other incriminating evidence will serve to tip the scales in favor of sufficiency. See Commonwealth v. Albano, 372 Mass. ---, --- - --- ^D, 365 N.E.2d 808 (1977). The defendant's repeated falsehoods to the police with respect to the identity of the driver were evidence of consciousness of guilt and constituted an implied admission which might, with other evidence, be sufficient to establish guilt. Commonwealth v. Fancy, 349 Mass. 196, 201, 207 N.E.2d 276 (1965). Commonwealth v. Curry, 341 Mass. 50, 55, 166 N.E.2d 714 (1960). But in this case the "other evidence" was...