Com. v. Phong Thu Ly

• Decision Date: 04 January 1985
• Citation: 19 Mass.App.Ct. 901,471 N.E.2d 383
• Parties: COMMONWEALTH v. PHONG THU LY.
• Court: Appeals Court of Massachusetts

Page 383

471 N.E.2d 383

19 Mass.App.Ct. 901

COMMONWEALTH v. PHONG THU LY.

Appeals Court of Massachusetts Norfolk.

Argued Oct. 11, 1984.

Decided Nov. 23, 1984.

Further Appellate Review Denied Jan. 4, 1985.

Patricia A. O'Neill, Boston, for defendant.

David C. Phalen, Asst. Dist. Atty. (Charles J. Hely, Asst. Dist. Atty., with him), for the Com.

Before BROWN, ROSE and KASS, JJ.

RESCRIPT.

Phong Thu Ly was convicted of two counts of armed assault with intent to rob and two counts of armed assault with intent to murder arising out of an attempted robbery of Chef Chang's restaurant in Brookline. The defendant appeals from these convictions on three grounds.

First, he asserts that testimony at trial that rubber dishwashing gloves had been found on his person was irrelevant, unfairly prejudicial, and should have been excluded. No witness testified that Phong Thu Ly had been seen wearing the gloves; therefore, he argues, there was no foundation for the introduction of testimony concerning the gloves as evidence tending to show preparation or plan to prevent leaving fingerprints during the armed robbery. While the Commonwealth did introduce fingerprint evidence to show that the defendant had eaten in the restaurant shortly before the attempted robbery, we do not conclude that for this reason testimony concerning his possession of rubber gloves lacked a proper foundation or was irrelevant. Common sense tells us that wearing rubber dishwashing gloves while eating in a restaurant is not a sensible practice for potential robbers because these accessories would attract undesired attention to their wearer.

"It is a familiar tenet of Massachusetts law that the 'relevancy of testimony depends upon the question, whether it has a rational tendency to prove the issues made by the pleadings or other incidental material issues....' " Commonwealth v. Fillippini, 1 Mass.App.Ct. 606, 611, 1304 N.E.2d 581 (1973), quoting from Commonwealth v. Durkin, 257 Mass. 426, 427-428, 154 N.E. 185 (1926). "Evidence may be sufficiently relevant to be admitted if it 'tends to establish the issue' or 'constitutes a link in the chain of proof.' " Poirier v. Plymouth, 374 Mass. 206, 210, 372 N.E.2d 212 (1978). Here, the gloves were probative of an intent to conceal fingerprints. This intent is probative of an intent to commit a robbery, which, in turn, is probative of the defendant's actual robbery attempt. Whether evidence is so prejudicial as to outweigh its probative value and preclude admission is a question for the trial judge in the exercise of his sound discretion. Commonwealth v. D'Agostino, 344 Mass. 276, 279, 182 N.E.2d 133 (1962). We conclude that there was no abuse of discretion.

The second error asserted by the defendant is the trial judge's refusal to instruct the jury that they were entitled to draw an inference adverse to the Commonwealth because the police failed to test him or his rubber gloves for gunshot residues. Commonwealth v. Bowden, 379 Mass. 472, 485-486, 399 N.E.2d 482 (1980), held that defendants are entitled to construct a defense on the "failure to perform tests" issue. However, Bowden merely prohibited judges from instructing jurors that no inferences could be drawn from a failure to perform tests; the decision did not require judges to give the instruction the defendant requested.

At trial, ...