Com. v. West

Decision Date10 April 1970
Citation357 Mass. 245,258 N.E.2d 22
PartiesCOMMONWEALTH v. Lewis J. WEST, Jr.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Reuben Goodman, Boston, for defendant.

William J. Doyle, Asst. Dist. Atty., for the Commonwealth.

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

SPALDING, Justice.

These are appeals under G.L. c. 278, §§ 33A--33H, from convictions on three indictments charging the defendant, respectively, with armed robbery, assault with intent to murder, and assault and battery by means of a dangerous weapon. The indictments arise out of the robbery of a savings and loan assocation in Boston on October 10, 1968, in which Paul F. Curley, a police officer, was shot twice by the fleeing robber.

We summarize so much of the testimony as is necessary to furnish a background for the questions presented. One Mary J. Burns, a bank teller, testified that at 1 P.M. on October 10 a tall stoop-shouldered man wearing black sunglasses pointed a gun at her and told her to fill a paper bag with money. As the man was walking toward the door, she signaled to a police officer who had just entered. The man then pulled his gun and shot the officer twice. The witness identified the defendant as the man who had robbed her and shot the officer.

Officer Curley testified that on October 10, while entering the bank to talk to an employee, his attention was attracted by a motion made by a teller, Mary Burns. As he turned partly around, 'there was a flash and a bang.' He observed on the right side of him, from where the flash had come, a white male about 6$' 1$' in height with a paper bag. The witness testified he then got a 'bang' in the chest and '(he) thought the top of (his) head was off,' and he fell to the floor.

The head teller of the bank, John Sylvestro, testified that he was in the bank and saw a man at the teller's window wearing a black leather three-quarter length jacket and black sunglasses. He saw this man shoot Officer Curley.

One Robert Carroll, the defendant's brother-in-law, who lived in Baldwin Park, California, testified that on October 11 the defendant called him from a Los Angeles bus depot. He further testified that the defendant later showed him a big was of money, was dressed all in black, and referred to himself several times in conversation as 'Boston Blackie.' Carroll's two nephews, Solomon and Lonnie Travis, testified that on October 12 in Baldwin Park the defendant produced a thirty-eight calibre pistol and some thirty to fifty thirty-eight shells, which they (the defendant and Solomon and Lonnie) used for 'target practicing.' The defendant told them that 'he had shot a cop in the back of the head and he didn't know whether he was alive or dead.'

The defendant alleges that the judge erred (1) in admitting testimony concerning the thirty-eight calibre pistol (assignment of error No. 3); (2) in refusing to exclude or limit the introduction of the defendant's prior convictions in the event he elected to testify (assignments of error Nos. 4 and 5); and (3) in his instructions on assault with intent to murder (assignment of error No. 7).

1. In the course of the pre-trial hearing and the Commonwealth's opening statement, the prosecutor stipulated that the thirty-eight calibre gun mentioned by the Travises was not the one used to shoot Curley. The testimony of Lonnie Travis concerning the thirty-eight calibre gun was the subject of a motion to strike by the defendant. To the denial of this motion and to the overruling of his objection to Solomon Travis's testimony concerning the gun, the defendant excepted. He invokes the rule that weapons found in the possession of a defendant are admissible only if they might have been used in the commission of the crime charged. Commonwealth v. O'Toole, 326 Mass. 35, 39, 92 N.E.2d 618; Commonwealth v. McLaughlin, 352 Mass. 218, 229--230, 224 N.E.2d 444. Otherwise an inference that a defendant has vicious and dangerous propensities might be drawn that would be prejudicial to him. While we agree that evidence of weapons unrelated to the commission of the crime under consideration may in some circumstances be prejudicial, we do not here find the likelihood of such prejudice. The defendant did not--and does not now--object to the testimony regarding the target practice, or the shells. Indeed, as to the latter there would be no basis for such an objection, for there was evidence that the cartridges used in the shooting of Officer Curley were thirty-eight calibre. The defendant objects only to the reference to the bun. The testimony regarding target practice, by necessary implication, imported the use of firearms and ammunition. The mention, that a pistol in the possession of the defendant was used added little or nothing, and it is difficult to see how it could have been prejudicial.

2. The defendant did not testify. At the conclusion of the Commonwealth's case, the defendant presented a motion asking the court to rule that if he elected to testify his prior convictions would...

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