Home COMMONWEALTH vs. ROBERT HEARD.

360 Mass. 855

November 1, 1971

The defendant appeals in cases heard under G. L. c. 278, Sections 33A-33G, from convictions of assault and battery on a police officer, of unlawfully carrying a dangerous weapon when arrested for breach of peace, and of being an idle and disorderly person. A jury could have found that the defendant, six feet, seven inches tall, and weighing 371 pounds, on September 25, 1969, was making insulting and obscene remarks to people waiting for an M. B. T. A. train at Dudley Street station, Roxbury, and that when asked to leave the station by members of the transit police force engaged in a scuffle with them, during which one of the policemen sustained a broken bone in the left hand. The jury also could have found that the defendant was carrying a knife when arrested by police. There is no error. References to the Black Panther Party which entered were at the behest of the defendant and not the prosecution, and in any event the judge's charge provided ample protection to the defendant. Furthermore, there was no error in the judge's refusal to ask the veniremen on voir dire, at the defendant's request, some forty-four questions, many of which were utterly pointless. The trial judge has broad discretion in this area. Commonwealth v. Taylor, 327 Mass. 641 , 646-647. Commonwealth v. Ricard, 355 Mass. 509 , 511. The jury's verdicts were not tainted because the prosecution in its argument referred to the defendant as a "bully." Commonwealth v. Smith, 342 Mass. 180 , 188. We see no point in discussing other errors assigned by the defendant.

Judgments affirmed.

Home WALTER T. TARKA & another vs. COMMONWEALTH.

360 Mass. 855

November 1, 1971

The Tarkas' property (the locus), used as a gasoline station, formerly directly adjoined Route 10. After a relocation of that route about 200 to 250 feet away from the locus, the locus could be reached from Route 10 and the general highway system only by two connecting roads forming a loop to the east of Route 10 past the locus. The locus became much less desirable than theretofore for a gasoline station. There was evidence that, for about six months during construction, traffic was obstructed in, or prevented from, reaching the locus, that the market value of part of the locus was substantially reduced by the relocation, and that its most valuable use became residential rather than commercial. On this petition (G. L. c. 79 and c. 81), the jury assessed damages which suggest strongly that their award was based upon the permanent diminution in value by the relocation rather than on the interruption of access during construction. The Commonwealth's only exception, however, is to the judge's refusal to direct a verdict. The bill of exceptions states that "no question of damages is involved" and we are "not asked to review . . . [the] evidence" on damages. We have no occasion to consider various decisions relied upon by the parties or some of them. See Tassinari v. Massachusetts Turnpike Authy. 347 Mass. 222 , 224-225. See also Wine v. Commonwealth, 301 Mass. 451 , 458-459; Betty Corp. v. Commonwealth, 354 Mass. 312 ,

Page 856

318-319. The Tarkas, in any event, were entitled to recover for the substantial temporary obstruction of access. Any claim that the damages were excessive is an issue not presented to us on this record. The evidence permitted the jury to find for the Tarkas in some amount. A verdict could not properly have been directed for the Commonwealth.

Exceptions overruled.