Home COMMONWEALTH vs. DENNIS J. KELLEHER.

14 Mass. App. Ct. 961

July 30, 1982

The defendant was found guilty by a jury on four indictments charging him with

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armed robbery. G. L. c. 265, Section 17. On appeal he argues that the probative value of testimony concerning his assault on and flight from a police officer was far outweighed by its potential for prejudice from the fact that the testimony also placed him in the company of a woman identified as a participant in the robberies.

There was evidence to show that on the right of May 19, 1980, a woman later identified as one Joan Hiduchick entered a restaurant, looked around for a few minutes, and left. Almost immediately thereafter, two men, one carrying a handgun and the other a sawed-off rifle, came into the restaurant and took money from the cash register and patrons. A short time later, motorcycle officer William McNamara, who had been alerted about the robberies over the police radio, approached a group of five people, one of whom was Hiduchick. As he reached them, all but Hiduchick fled. She was returned to the restaurant, identified in McNamara's presence as the woman who had been seen just before the robberies, arrested, and released on bail. The next evening, McNamara saw Hiduchick in a car with a man who resembled one of the group who had fled the night before. McNamara approached the vehicle, Hiduchick drove off, and a chase ensued but McNamara was able to force the car to pull over and stop. As McNamara was setting the kickstand to his motorcycle, the male passenger jumped out of the car and attacked him from behind. The passenger ran off after a struggle.

It is settled that "evidence of flight indicates consciousness of guilt, and is generally admissible in evidence to prove a defendant's guilty state of mind, even if the evidence is otherwise prejudicial." Commonwealth v. Gilday, 367 Mass. 474 , 496 (1975), and cases therein cited. The defendant claims that McNamara's testimony was "otherwise prejudicial," because it created the risk that the jury would infer the defendant's guilt from the fact of his association with Hiduchick. See Commonwealth v. Perry, 357 Mass. 149 , 151 (1970) ("There can be no finding of guilt by association").

It is also settled that "[w]hether evidence is relevant in any particular instance and whether the evidence is so inflammatory in nature as to outweigh its probative value and thus preclude its admission are questions addressed to the sound discretion of the trial judge." Commonwealth v. Booker, 386 Mass. 466 , 469 (1982). The defendant contends that the judge abused his discretion because only one of five witnesses to the robbery could make a positive identification of the defendant as one of the robbers. We see no abuse of discretion in the trial judge's decision to admit McNamara's testimony concerning the defendant's actions even though they took place in Hiduchick's presence.

Judgments affirmed.