Com. v. Kines
| Decision Date | 30 September 1977 |
| Citation | 5 Mass.App.Ct. 632,367 N.E.2d 861 |
| Court | Appeals Court of Massachusetts |
Stephen L. Saltonstall, Boston (Joyce Perkit Zalkind, Boston, with him), for defendant.
Thomas J. Mundy, Jr., Asst. Dist. Atty., for Commonwealth.
Before HALE, C. J., and KEVILLE and GRANT, JJ.
The defendant appeals under G.L. c. 278, §§ 33A-33G, from convictions after a jury trial in the Superior Court on indictments for kidnapping, armed robbery and rape. The defendant offered an alibi. Those assignments of error which the defendant has briefed and argued challenge the admission of certain evidence bearing upon identification of him as the perpetrator of the crimes. Other assignments of error not having been argued are deemed waived. Commonwealth v. Caine, 366 Mass. 366, at 366 n. 1, 318 N.E.2d 901 (1974). Commonwealth v. Deschamps, 1 Mass.App. 1, 5, 294 N.E.2d 426 (1972).
The question presented is whether the trial judge abused his discretion in the admission of evidence of prior criminal activity of the defendant which lent support to his identification as the perpetrator of the crimes for which he was then being tried. Pertinent evidence may be summarized as follows.
On the night of August 26, 1974, three teenage girls hitchhiking home to Newton after attending a festival in the North End of Boston accepted a ride from a young man driving a blue Econoline van with orange license plates and flowered curtains. During their ride with him, the driver asked directions to "Cabot Street." Thereafter he stopped the van, locked the doors from the outside, drew a pistol, tied the girls inside the van and drove off. At some point he stopped the vehicle, forced one of the girls to have intercourse with him, took two rings from one of the others and then released them somewhere in Roxbury, blindfolded and tied together.
Two of the girls identified the defendant's picture as that of their assailant from among numerous photographs shown to them by the police one week after the incident and each of the girls identified the defendant in court during the trial. One of the girls identified police photographs of a van found abandoned in the South End of Boston two days after the incident as the van in which the crimes took place. On cross-examination defense counsel sought to discredit the identification testimony given by the girls by emphasizing the fact that the interior of the van was unlighted and that the van's curtains excluded light from the outside.
To support the identification testimony of the victims, the prosecution, over the defendant's objections, introduced evidence of an earlier robbery which had occurred five days prior to August 26, 1974. From that evidence the jury could have concluded that on August 21, 1974, the defendant had robbed a woman of a valuable diamond ring in the presence of her daughter while operating the same van which was later used in the crimes which led to the present indictments. They could also have concluded that the van had been stolen on the previous day, August 20, and that the defendant had sold the diamond ring to a pawnbroker a few hours following the earlier robbery. The victim, her daughter and the pawnbroker, all made in-court identifications of the defendant. The victim and her daughter had earlier identified the defendant from photographs shown to them by the police. The pawnbroker testified that the defendant had done business with him before under a different name. The descriptions given of the van and of the defendant by the victim and her daughter matched that given by the teenage girls. Evidence which indicated that the van had been stolen was given by the father of its owner and through testimony of the police. The judge instructed the jury at length when the evidence of this earlier robbery was introduced, and more briefly during his charge, that they were to consider this evidence only on the question of the identity of the defendant.
The defendant's claim of error is based on his assertion that evidence of prior crimes is not generally admissible to prove the guilt of the defendant. Commonwealth v. Stone, 321 Mass. 471, 473, 73 N.E.2d 896 (1947). 1 Wigmore, Evidence, §§ 193-194, at 642-652 (3d ed. 1940). He states the rule too broadly. It is true that evidence of prior crimes is generally not admissible to prove the bad character of a defendant. Stone, supra. However, evidence which is otherwise relevant is not rendered...
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