13 Mass. App. Ct. 908

January 8, 1982

1. The judge did not err in refusing to give the model identification instruction from United States v. Telfaire, 469 F.2d 552, 558-559 (D.C. Cir. 1972), set out in the appendix to Commonwealth v. Rodriguez, 378 Mass. 296 , 310-311 (1979). Identification was not the crucial issue in this case, for the defendant by his own testimony confirmed the observations of several witnesses that he was the person who fought with the victim across the street from the bar in which they had had an earlier scuffle. The crucial issue was whether the defendant, despite his denials, had used a knife and stabbed the victim during the second encounter, as testified to directly by the witness Devlin and indirectly by the witness Alves. 2. The defendant's motion for a required finding of not guilty was based on the inferences least favorable to the Commonwealth and was correctly denied.

Judgment affirmed.


13 Mass. App. Ct. 908

January 11, 1982

The defendant has appealed from his conviction on an indictment charging rape of a child under the age of sixteen (G. L. c. 265, Section 23) and presents two issues. There was no error.

1. Two police officers had been dispatched to the defendant's residence to see if the defendant and the victim were there. Both officers had searched the premises but only one testified at trial. In his testimony that officer stated that his partner had searched one of the rooms of the defendant's small apartment and then said, "There is no one here." The motion to strike should have been allowed. Commonwealth v. Ricker, 131 Mass. 581 (1881). Commonwealth v. Howard, 8 Mass. App. Ct. 318 , 320 (1979). Even without this testimony, however, the evidence was to the same effect. The only reasonable inference that the jury could have

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drawn from the testimony that the officers had left the apartment without seeing or talking to the defendant or the victim was that neither was there. The error was harmless. See Power Serv. Supply Inc. v. E.W. Wiggins Airways, Inc., 9 Mass. App. Ct. 122 , 129-130 (1980).

2. The judge charged the jury on alibi evidence and at the outset referred to alibi as a defense, saying, "The legal name for this defense is alibi and it's a legitimate and a proper defense." He also told the jury it should be "scrutinized carefully." These words, which were characterized as "unwise" and disapproved in Commonwealth v. McLeod, 367 Mass. 500 , 502 (1975), should not have been used. The judge, however, told the jury "to bear in mind that an alibi may be the only refuge of the innocent." Id. The judge also, partly in his own words, gave the charge suggested in McLeod, at 502 n.1. We are of opinion that the charge could not have been understood by the jury as shifting any burden of proof to the defendant and was thus not erroneous. Contrast Commonwealth v. Bowden, 379 Mass. 472 , 480-482 (1980); Commonwealth v. Cobb, 5 Mass. App. Ct. 421 , 422-424 (1977).

Judgment affirmed.