15 Mass. App. Ct. 913

January 5, 1983

1. When defense counsel, following the Commonwealth's opening, expressed an intention to make openings (there was a codefendant at trial), the trial judge inquired what evidence the defense intended to offer. Counsel responded that they proposed to develop evidence in behalf of the defendants through cross-examination of the Commonwealth's witnesses. The judge declined to allow openings on that basis.

We said in Commonwealth v. McJunkin, 11 Mass. App. Ct. 609 , 614-617 (1981), that the opportunity under Mass.R.Crim.P. 24(a)(1), 378 Mass. 895 (1979), to "present an opening statement of [a] defense" may be limited by a trial judge, acting within his discretion, to particularized evidence which the defendant expects to adduce. In the instant case, when the judge asked counsel for the codefendant what evidence she proposed to offer, she replied, "I am going to offer evidence from the Commonwealth's case that in addition to the facts they have heard, they should listen for the facts which I intend to elicit from the Commonwealth's case." This announced no more than a hope to puncture the Commonwealth's case somehow through cross-examination. The judge acted within his discretion in refusing the defense lawyers the right to make opening statements on that basis. Counsel's expectations were more broad and general than those found insufficient in McJunkin. If defense counsel reasonably expects on cross-examination to elicit specific evidence, e.g., that a prosecution eyewitness had deficiency in vision rendering impossible the observations to which the witness is expected to testify, a defense opening stating such a fact would be proper. See, for example, the specific matters the defense in McJunkin said on appeal it had hoped to prove through cross-examination, but which it was not ready to discuss at trial.

2. Although the judge ruled as a preliminary matter that he would not receive evidence as to a paycheck the defendant Medeiros had received two days before the day on which he was charged with having "rolled" the complaining witness (i.e., robbing the latter while he was drunk), the judge left the door open to the defendant's counsel to present authority on the next trial day as to why such evidence might be relevant and admissible. No authority was offered; indeed, the witness who was to testify

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was not even brought into court. Having failed to press the point at trial, the defense cannot do so on appeal. See Royal Indem. Co. v. Blakely, 372 Mass. 86 , 88 (1977); Olson v. Ela, 8 Mass. App. Ct. 165 , 170-171 (1979).

Judgments affirmed.