Home COMMONWEALTH vs. EDWIN RODRIQUEZ.

10 Mass. App. Ct. 899

September 23, 1980

The defendant appeals from his convictions of carrying a firearm (handgun) without being properly licensed and of assault with a dangerous weapon. The defendant claims that the trial judge erred in denying his two motions for a mistrial made during the cross-examination of the defendant. There was no error. We do not condone the tendentious nature of the questions asked by the prosecutor or the manner in which they were asked (compare Commonwealth v. White, 367 Mass. 280 , 284 [1975]); however, the decision whether to declare a mistrial in such circumstances is within the discretion of the trial judge. See Commonwealth v. Sandler, 368 Mass. 729 , 735 (1975).

Passing the question whether the defendant's negative answers to the prosecutor's questions could have prejudiced him, we think that the judge's instructions with regard to the three challenged questions were sufficient to cure any potential harm to the defendant. "The decision to use a corrective instruction rather than to allow the defendant's motion[s] for a mistrial was within the judge's discretion." Commonwealth v. Rogers, 8 Mass. App. Ct. 646 , 651 (1979). That discretion was not abused. See Commonwealth v. Paradiso, 368 Mass. 205 , 210 (1975).

The defendant relies heavily on Commonwealth v. Key, 381 Mass. 19 , 28-30 (1980). We find nothing in that case which would require us to change our view of the instant case.

Judgments affirmed.

Home COMMONWEALTH vs. PAUL CONCEICAO.

10 Mass. App. Ct. 899

September 24, 1980

The defendant's claim that the Commonwealth was precluded from prosecuting its case on a theory of joint enterprise because it had not stated that theory in its answers to the defendant's motion for a bill of particulars is without merit. "The law is well established that the purpose of a bill of particulars is `to describe in more detail that which is included in the allegations of an indictment in order that the defendant may be fully informed of the nature of the charge and be enabled to prepare an adequate defence.' Commonwealth v. Ries, 337 Mass. 565 , 580-581 [1958]. Particulars are not a summary of all of the Commonwealth's anticipated evidence." Commonwealth v. Hare, 361 Mass. 263 , 270 (1972). Moreover, the defendant makes no claim that he was in any way hindered in his defense, which was limited to an attempt to discredit the victim's testimony that the defendant was the person who had struck him down and stunned him.

Page 900

The defendant claims that the judge erred in including a definition of joint enterprise in his charge. The basis of this claim is the same as that discussed above, and we reject it for the same reason. The defendant also claims that there was no evidence warranting a charge on joint enterprise. Although the evidence before the jury was such as to warrant a guilty verdict without such a charge, there was also evidence upon which the jury could have found the joint participation of the defendant and a prostitute in luring the victim to the scene of the crime. There was no error.

Judgment affirmed.