Home COMMONWEALTH vs. ASHLEY PITTERS.

14 Mass. App. Ct. 1038

December 7, 1982

1. Under the judge's instructions the jury would not have returned their guilty verdict on the indictment for unarmed robbery unless they had found not only that the money did not belong to the defendant but also that he did not believe it belonged to him when he took it by force. As to those instructions, see Commonwealth v. Donahue, 148 Mass. 529 , 531 (1889); Commonwealth v. White, 5 Mass. App. Ct. 483 , 485-488 (1977); Commonwealth v. Larmey, ante 281, 283-285 (1982). There was no error in the judge's refusal to give the instruction concerning larcenous intention in precisely the language sought by the defendant. 2. Any vaguely burden-shifting tendency in one or two sentences of the charge viewed in isolation was more than adequately compensated for by clear, repeated, and emphatic instructions listing the elements of the offense and stating that the Commonwealth had the burden to prove each element beyond a reasonable doubt. 3. If there was error in instructing the jury that assault and battery was a lesser offense included within robbery (as to which see Commonwealth v. Jones, 362 Mass. 83 , 86-87 [1972]; Commonwealth v. Jones, 12 Mass. App. Ct. 489 , 491 [1981]), the error was rendered immaterial by the jury's finding the defendant guilty of the greater rather than the lesser charge.

Judgment affirmed.

Home COMMONWEALTH vs. ROBERT F. TRENHOLM.

14 Mass. App. Ct. 1038

December 8, 1982

The defendant appeals from convictions on indictments charging forcible rape and indecent assault and battery of a child. 1. The trial judge correctly refused to let the defendant question members of his family concerning suspicions and accusations previously expressed by his wife concerning

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sexual misconduct by the defendant. Defense counsel acknowledged that he intended to question witnesses allegedly involved in the prior acts of misconduct as to the veracity of the accusations, and, as the trial judge observed, the jury would soon have been trying every incident but the one alleged in the indictments. The danger was underscored when it became apparent in a voir dire that the wife was prepared to testify to having witnessed the defendant victimize another child on at least one occasion. Commonwealth v. Bohannon, 376 Mass. 90 (1978), relied on by the defendant, is distinguishable on its facts, the alleged maker of prior false accusations being there the victim and here the victim's mother, and the accuser's testimony being there "inconsistent and confused" (id. at 95) and here essentially consistent and lucid. The Bohannon case stands for the proposition that the general rule barring evidence of prior false accusations is "not inflexible" (id. at 94) and may yield in unusual fact situations where justice demands. This is not such a situation; rather, it exemplifies those in which the reasons for the general rule are fully applicable and the danger of the trial's focus shifting to collateral issues is great. The judge exercised sound discretion in refusing to permit such a diversion. 2. The judge did not err in excluding the hypothetical question, whether because the evidence did not support the factual predicate (that the defendant had engaged in sex with his wife on the night in question) or because the query was not so remote from common experience that the opinion of an expert would offer material assistance to the jurors. See Commonwealth v. Harris, 1 Mass. App. Ct. 265 , 268, S.C., 364 Mass. 236 (1973). 3. There was no abuse of discretion in permitting the victim, six years old at the time of trial, to use an anatomically correct doll to assist her in giving an anatomical description of the incident on which the indictments were based. See Everson v. Casualty Co. of America, 208 Mass. 214 , 218-221 (1911). 4. The defendant's contention concerning the prosecutor's closing argument and the judge's charge is without merit.

Judgments affirmed.