Home COMMONWEALTH vs. CHARLES N. KEANE.

5 Mass. App. Ct. 881

October 24, 1977

The specific facts -- found by the trial judge on conflicting testimony at a voir dire -- articulating with specificity (see Commonwealth v. Silva, 366 Mass. 402 , 406 [1974]) the defendant's actions, which Officer McKenzie saw as the police arrived in response to a "trouble call," reasonably justified the officer in reaching for the front of the defendant's waist, where he found a gun. See Commonwealth v. Dottin, 353 Mass. 439 , 442 (1968); Commonwealth v. Hawkes, 362 Mass. 786 , 789 (1973); Commonwealth v. Almeida, 373 Mass. 266 , 271-272 (1977); cf. Commonwealth v. McGrath, 365 Mass. 631 (1974); Commonwealth v. Silva, supra at 407. See generally Terry v. Ohio, 392 U.S. 1 (1968). There is no indication of "calculated harassment" (Commonwealth v. Hawkes, supra at 789) or that the action of the police officer was a pretext to look for other things such as narcotics rather than the result of a genuine apprehension that the defendant had a gun. See Commonwealth v. Anderson, 366 Mass. 394 , 400-401 (1974); cf. Commonwealth v. McGrath, supra at 632; Sibron v. New York, 392 U.S. 40, 64-65 (1968). This case is distinguishable from People v. LaPene, 40 N.Y.2d 210, 221-226 (1976), relied on by the defendant, in which the police, who entered a barroom on the basis of a radio call that a person described in the call was in the barroom and armed, saw someone who answered that person's description but, unlike our case, saw nothing to corroborate the information that he had a gun. Cf. Commonwealth v. Anderson, supra at 399-401; United States v. Hernandez, 486 F. 2d 614 (7th Cir. 1973), cert. denied, 415 U.S. 959 (1974).

Judgment affirmed.

Home DIRECTOR OF THE DIVISION OF EMPLOYEE RELATIONS vs. LOCAL 254, SEIU, AFL-CIO, & others.

5 Mass. App. Ct. 881

October 24, 1977

There is no merit to the arguments advanced by the defendants in support of their contention that the judgment vacating the arbitration award was erroneous. No useful purpose would be served in detailing the rulings of the judge, with which we are in essential agreement, as it is unlikely that a case similar to this will arise in the future.

Judgment affirmed.

Home COMMONWEALTH vs. JOHN ROBERTS.

5 Mass. App. Ct. 881

October 25, 1977

The defendant appeals from a conviction on an indictment charging him with the

Page 882

crime of deriving support from the earnings of a prostitute. G. L. c. 272, Section 7. 1. Apart from our impression that the defendant's arguments, which challenge the constitutionality of that statute, appear to be insubstantial, it was decided in Commonwealth v. Peretz, 212 Mass. 253 , 256 (1912), that a predecessor statute, couched in substantially the same language, was "plainly constitutional," and this court is not inclined to disturb that determination. 2. As to the defendant's claim that the judge's instructions to the jury were inadequate with respect to the jury's evaluation of the prostitute's testimony, we do not pause to determine whether, as the defendant asserts, her role was that of an accomplice (see Commonwealth v. Hersey, 324 Mass. 196 , 207 [1949]); even if it were, the judge was not required to instruct the jury that her testimony be scrutinized with caution. See Commonwealth v. Phelps, 192 Mass. 591 , 595 (1906); Commonwealth v. Taber, 350 Mass. 186 , 187 (1966); Commonwealth v. Flynn, 362 Mass. 455 , 467 (1972). The record demonstrates that defense counsel was given wide latitude in exploring that witness's motives in testifying against the defendant and in his comments thereon in argument to the jury. The judge was not required to instruct the jury precisely as requested by the defendant (Commonwealth v. Edmonds, 365 Mass. 496 , 505-506 [1974]; Commonwealth v. MacDonald, 371 Mass. 600 , 603 [1976]); and we are satisfied from our review of his instructions that the jury were adequately instructed on the question of that witness's possible motives in testifying as she did.

Judgment affirmed.