Home COMMONWEALTH vs. JOHN A. HOPKINS.

1 Mass. App. Ct. 858

November 20, 1973

The defendant was indicted for the robbery (unarmed) of Bertha Holland and was convicted. The case is before us on the defendant's substitute bill of exceptions. The defendant excepted to the admission of testimony by the victim's companion as to injuries she received during the commission of the offense. The testimony was properly admitted. In the trial of a criminal case the Commonwealth is entitled to "show the whole transaction of which the crime was a part . . . . Evidence of the attendant circumstances may aid the jury in reaching a verdict by giving them the complete picture." Commonwealth v. Durkin, 257 Mass. 426 , 428 (1926). See also Commonwealth v. Velleco, 272 Mass. 94 , 97-98 (1930); Commonwealth v. Eagan, 357 Mass. 585 , 589-590 (1970). The defendant also excepted to the judge's refusal to permit certain questions to be put to a police officer concerning distances between intersections and to the judge's exclusion of a small map offered by the defendant in support of an alibi defense. From our examination of the record it appears that the questions were excluded because of their form, not because of the information they were intended to elicit. The judge's action was a proper exercise of his discretion in regulating the conduct and manner of cross-examination. Commonwealth v. Flynn, 362 Mass. 455 , 470 (1972). Commonwealth v. Kronis, ante, 303, 307-308 (1973). The proffered map, lacking a scale, was not relevant to the proposition for which it was offered -- to show that the defendant could not have traveled from the scene of the crime to the site of his arrest during the time elapsed. The jury could not have determined from the map the distance between the two points in question. The map was properly excluded.

Exceptions overruled.

Home COMMONWEALTH vs. PHILLIP M. HARDING.

1 Mass. App. Ct. 858

November 28, 1973

At a jury trial held subject to the provisions of G. L. c. 278, Sections 33A-33G, the defendant was convicted of assault and battery by means of a dangerous weapon and assault with intent to commit armed robbery. The defendant assigns as error the admission of testimony by the victim that, as he approached his automobile immediately prior to the confrontation with the defendant, he observed that one of its tires had been slashed. There was no error. "In the trial of a criminal case the Commonwealth is entitled to `show the whole transaction of which the crime was a part . . . . Evidence of the attendant circumstances may aid the jury in reaching a verdict by giving them the complete picture.'" Commonwealth v. Hopkins, ante, 858 (1973), citing Commonwealth v.

Page 859

Durkin, 257 Mass. 426 , 428 (1926). The defendant further assigns as error the denial of two motions for mistrial made (1) after a Commonwealth witness referred to the defendant's possible involvement in other criminal activity and (2) after another witness voluntarily and unresponsively testified to the defendant's conduct suggestive of consciousness of guilt. The defendant argues that the effect of such testimony could not have been cured by the curative instructions given in each instance. We disagree. The testimony objected to was of a type that can adequately be cured by clear and prompt limiting instructions, such as were given in this case. Contrast Commonwealth v. Gibson, 357 Mass. 45 , 48-49 (1970), and Commonwealth v. Rucker, 358 Mass. 298 , 300 (1970), with Commonwealth v. Sarro, 356 Mass. 100 , 102 (1969). "It is our rule that jurors may be expected to follow instructions to disregard matters withdrawn from their consideration." Commonwealth v. Crehan, 345 Mass. 609 , 613 (1963). The defendant also assigns as error the exclusion at trial of two snapshots from a group of three previously shown to the victim by defense counsel at a probable cause hearing. The victim had been unable to identify the defendant in any of the photographs; the only photograph in which the defendant appeared was the one which was admitted. In such situations the admission of photographs in evidence rests largely in the discretion of the trial judge. See Commonwealth v. Noxon, 319 Mass. 495 , 536-537 (1946). We are of the opinion that no prejudice resulted from excluding the photographs. The judge did not abuse his discretion.

Judgments affirmed.