Com. v. Magnasco

• Decision Date: 11 March 1976
• Citation: 343 N.E.2d 444,4 Mass.App.Ct. 144
• Parties: COMMONWEALTH v. Kenneth v. MAGNASCO.
• Court: Appeals Court of Massachusetts

Page 444

343 N.E.2d 444

4 Mass.App.Ct. 144

COMMONWEALTH

v. Kenneth v. MAGNASCO.

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 9, 1976.

Decided March 11, 1976.

Frederick W. Riley, Lynn (Anthony A. Bongiorno, Jr., Lynn, with him), for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty., Boston, for the Commonwealth.

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

HALE, Chief Justice.

After a jury trial held pursuant to the provisions of G.L. c. 278, §§ 33A--33G, the defendant was convicted and sentenced on separate indictments which charged (1) armed assault with intent to murder (G.L. c. 265, § 18) and (2) assault and battery by means of a dangerous weapon (G.L. c. 265, § 15A). The case is here on three assignments of error which we discuss later in the opinion. There was no error.

There was evidence from which the jury could have found that at 4:00 P.M. on September 16, 1974, the victim, a nine-year-old boy, left his home and joined three of his friends at the Wally Street entrance gate to Suffolk Downs race track. While there the four boys gathered and sold used programs to patrons of the race track.

At approximately 5:30 P.M. a man, later identified by all four boys as the defendant, drove up in a white, four-door, 1968 Oldsmobile and called them over to the driver's side. The boys spoke with the defendant for approximately fifteen minutes. During that time the defendant asked if one of the boys would wax his car for $10. After having been chosen by his friends, the victim entered the vehicle, and the defendant drove to Bayswater Street in East Boston where it parallels the beach, near its intersection with Annavoy Street. They alighted from the automobile and walked towards the beach to get some water to wash the car. When they reached an area of tall reeds the defendant ordered the victim to commit an unnatural act and threatened to kill the boy when he refused to do so. The last thing the victim could remember about the incident after he had committed the act was seeing the defendant bending over to pick up a piece of wood.

The victim was severely beaten and left lying in the reeds. At 7:00 A.M. the following morning, he was discovered by a young man who was in the area walking his dog. The police were notified, and the victim was taken by ambulance to a hospital, where he remained in a coma for five weeks. The victim's injuries were consistent with having been inflicted by a blunt instrument having some sort of prominences such as nails. The jury could also have found that a witness, who lived on Bayswater Street opposite the place on the beach where the victim was found, saw the defendant getting into a four-door, white Oldsmobile, which was parked on Bayswater Street near the Annavoy Street intersection, about 6:00 P.M. on the sixteenth. At 7:10 A.M. on the seventeenth, while the ambulance and numerous police cruisers were in the area, the witness saw the defendant drive the same vehicle along Bayswater Street past the scene at a speed of approximately fifteen miles an hour.

The defendant was arrested a week later when one of the boys, while in the company of police officers seeking to locate the assailant, pointed out the defendant's automobile and identified the driver as the man who had picked up the victim.

1. The defendant relied on an alibi and testified in his own behalf. On redirect examination he categorically denied that he had ever touched the victim or that he had ever seem him on or before the sixteenth. Having so testified, he was then asked by his counsel 'Did you ever harm a little boy in your life,' to which the defendant responded, 'Never.' In re-cross examination the assistant district attorney asked the defendant if he knew a boy named Michael S., to which he answered, 'Yes.' He denied that the boy had been injured while he was acting as the boy's babysitter. He was then asked, 'Did someone say you did something to him while you were babysitting?' The defendant replied, 'No one actually said anything.' He was then asked if he knew Helen S., the mother of the boy, and he stated that he did. At that point the judge interrupted with the statement, 'I don't think we batter pursue this matter any further.' The defendant's counsel then requested a bench conference at which he moved for a mistrial. The defendant assigns as error the judge's denial of that motion.

Before any objection was made by the defendant and before any testimony prejudicial to him was elicited, the judge terminated the questioning. There was at that time no good reason for the judge to declare a mistrial and his denial of the motion for such was right. The cases relied on by the defendant, for example, Commonwealth v. Welcome, 348 Mass. 68, 70, 201 N.E.2d 827 (1964) and Commonwealth v. Spare, 353 Mass. 263, 266--267, 230 N.E.2d 798 (1967), are distinguishable from the present case, as in those cases the questioning elicited prejudicial admissions about irrelevant past behavior. Also, unlike the present case, exceptions were taken in those cases to the admission of testimony concerning the witnesses' prior criminal conduct.

Nor can the defendant successfully complain that the judge did not give ...