Home COMMONWEALTH vs. THOMAS BROWN.

6 Mass. App. Ct. 854

March 9, 1978

The defendant was convicted on a charge of rape (forced cunnilingus) brought under the provisions of G. L. c. 265, Section 22, as appearing in St. 1974, c. 474, Section 1, and has appealed. 1. The defendant's constitutional attack on that statute has been foreclosed by recent decisions of the Supreme Judicial Court and this court. See Commonwealth v. Gallant, 373 Mass. 577 (1977); Commonwealth v. Gonzales, 5 Mass. App. Ct. 705 (1977); Commonwealth v. Mamay, 5 Mass. App. Ct. 708 (1977). 2. The defendant has argued that several statements and comments made by the prosecutor during the course of his closing argument were so inflammatory and improper as to require reversal. However, the only exception taken concerning the argument was to the prosecutor's characterization of the defendant as a thief and a robber, made in his comments concerning the defendant's credibility as opposed to that of the victim. The defendant argues that those words were not supported by the evidence. Records of the convictions of the defendant for larceny from the person, assault and battery against that same person, and for another larceny from the person were in evidence. In a technical sense, the convictions were not for robbery, but, as the words were used colloquially we do not regard them as unfair comment, nor do we feel that the additional characterization of the defendant as a robber lessened his credibility to a greater degree than would have been the case if only "thief" had been used. Contrast Commonwealth v. Redmond, 370 Mass. 591 (1976); Commonwealth v. Earltop, 372 Mass. 199 (1977); Commonwealth v. Shelley, 374 Mass. 466 (1978). 3. As requested by the defendant, we have examined the transcript and the exhibits and have concluded that no substantial risk of a miscarriage of justice will occur if we do not invoke the rarely used power employed in Commonwealth v. Freeman, 352 Mass. 556 , 564 (1967).

Judgment affirmed.

Home COMMONWEALTH vs. MERRILL B. NEARIS.

6 Mass. App. Ct. 854

March 10, 1978

1. The defendant admitted that he had been aware of the entire course of the dealings between Sprague and the victim. The jury were not obliged to believe the defendant's explanation of the circumstances. "It is elementary that the acceptance or rejection of oral testimony, in whole or in part, is within the exclusive province of the jury." Commonwealth v. Holiday, 349 Mass. 126 , 129 (1965). Cf. Commonwealth v. McInerney, 373 Mass. 136 , 144-148 (1977). 2. The defendant claims that the written agreement with the victim could not have created a trust because it lacked a number of elements common to many written trust instruments. His contention in this respect (if relevant) is erroneous as matter of law (see Povey v. Colonial Beacon Oil Co., 294 Mass. 86 , 90 [1936]), and the defendant, who was the attorney who drafted the trust instrument, is in no position to say he did not appreciate the full dimensions of the fiduciary relationship between Sprague and the

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victim. 3. The trial judge's instructions to the jury adequately covered all the issues which on the evidence were appropriate for the jury to consider. See Commonwealth v. Kelley, 359 Mass. 77 , 92 (1971), and cases cited. The judge did not err in refusing to include the defendant's requested instructions in his charge, as none was required to be given. See Commonwealth v. Greenberg, 339 Mass. 557 , 584-585 (1959). 4. The defendant's claim of ineffective assistance of counsel at trial lacks merit for the reason, among others, that there has been no showing that he was deprived of any "otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89 , 96 (1974). "[T]he basic trouble from the defense standpoint was weaknesses in the facts rather than any inadequacy of counsel." Commonwealth v. Satterfield, 373 Mass. 109 , 111 (1977). 5. The remaining assignments of error argued on appeal (see Rule 1 : 13 of the Appeals Court, as amended effective February 27, 1975, 3 Mass. App. Ct. 801 [1975]) have been considered and are totally lacking in merit.

Judgment affirmed.