COMMONWEALTH vs. TERRELL WALKER.

HENNESSEY, C.J. The defendant was tried before a jury on five indictments charging him with murder in the first degree and armed robbery, and was convicted on all five indictments. He was sentenced to life imprisonment on the murder charge and to fifteen to twenty-five years' imprisonment on each of the armed robbery indictments, the terms of years to be served concurrently with the life term. The defendant prosecutes these appeals under G. L. c. 278, Sections 33A-33G.

We find no error in the rulings of the trial judge, and consequently we affirm the judgments. Further, a majority of the Justices participating in this decision are of the opinion that "justice in [this] particular case" (Commonwealth v. Geraway, 364 Mass. 168, 184 [1973] [Tauro, C.J., and Braucher, J., dissenting]) does not require that we exercise the discretion vested in us under G. L. c. 278, Section 33E. [Note 1]

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We turn now to a discussion of the defendant's numerous assignments of error seriatim.

The facts are as follows. Sometime around noon on November 30, 1973, three men with guns robbed a pawnshop on Washington Street in Boston. While the robbery was in progress, one of the armed men struggled momentarily with and killed a plain-clothed Boston police officer who happened to be inside the pawnshop at the time.

Responding to the robbery and murder, several police officers, including Detective Louis McConkey of district 2 of the Boston police department, showed the customers and employees of the pawnshop numerous photographs of possible suspects. Tentative identifications of at least two individuals, Terrell Walker and his brother, Arnold, were obtained.

In the late afternoon of that same day Detective McConkey and a contingent of plain-clothed police officers from districts 2 and 11 sought entry into a Columbia Point housing project apartment leased to Darlene Freeman, Arnold Walker's fiancee. [Note 2] Among the officers accompanying Detective McConkey was Detective Frank Olbrys, who was aware of two outstanding warrants for the arrest of Terrell Walker.

The police officers surrounded the ground level apartment, knocked loudly on the door, and demanded entry. Although there was no immediate response from within, the police deduced that the apartment was occupied because they could hear noises emanating from inside the apartment and because someone was observed peering out a side bedroom window after peeling back the corner of a drawn shade. A passkey was obtained to facilitate the police entry, but it was not until a bolt on the inside of the apartment door was released by Ms. Freeman that the police actually found themselves inside.

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Considerable confusion ensued. It is at least clear, however, that the defendant was asked his name and responded falsely, and that Detective Olbrys identified him as Terrell Walker and placed him under arrest. Detective McConkey took Ms. Freeman aside to find out what she might know about the pawnshop incident, while other officers fanned out throughout the apartment to gather up any remaining individuals they might discover therein. During the course of Ms. Freeman's conversation with Detective McConkey it was revealed that a gun or guns were in one of the bedrooms. Two guns were eventually recovered from a bedroom, and various other items of evidence connected with the pawnshop robbery were discovered and seized during the police occupation of the apartment. [Note 3] Arnold Walker (now also under arrest) and other persons in the apartment, including Ms. Freeman and the defendant, were taken to police headquarters. From Ms. Freeman investigating officers learned the identity of two individuals allegedly involved with the defendant in the robbery and murder. Nathaniel Williams and Anthony Irving were later apprehended with the murder weapon among their possessions.

An extensive and comprehensive hearing was held before trial to consider the defendant's motion to suppress the evidence obtained by the police at Ms. Freeman's apartment. [Note 4] The judge found that Ms. Freeman had knowingly,

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intelligently and voluntarily consented to the police entry and presence in her apartment and that the two guns found in one of the bedrooms were found by the police in plain view. The judge further found that the defendant had been arrested on probable cause and also on the two warrants for his arrest which were outstanding. Ms. Freeman's later statements to the police, in which she inculpated Williams and Irving, were found by the judge to be the result of an intervening, independent act on her part to supply information to the police, and were not deemed to be tainted in any way by the entry and search of her apartment. We have mentioned elsewhere in this opinion the judge's disposition with regard to other items of real evidence seized at the apartment. See note 3 supra.

1. It is uncontroverted that the police had no search warrant covering Ms. Freeman's apartment. [Note 5] The paramount question then becomes, broadly, Has the prosecution carried its burden of showing the existence of some one of the "`. . . few specifically established and well-delineated'" exceptions to the warrant requirement? Vale v. Louisiana, 399 U.S. 30, 34 (1970), quoting from Katz v. United States, 389 U.S. 347, 357 (1967).

The prosecution demonstrated, primarily through the testimony of Detective McConkey and Ms. Freeman, that the police entered her apartment and confiscated at least the two guns which were introduced in evidence as a result of Ms. Freeman's consent to that entry and search. That Ms. Freeman, as lessee of the apartment, and one on the premises at the time of the entry and search, could give a valid consent is not disputed. The issue narrows, we think, to whether, in all the circumstances, her consent to the entry and search can be said to have been freely and voluntarily given. Commonwealth v. Mendes, 361 Mass. 507, 512

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(1972). Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). Bumper v. North Carolina, 391 U.S. 543, 548 (1968).

Decisions of this court and of the United States Supreme Court make it clear that "consent freely and voluntarily given" means consent unfettered by coercion, express or implied, and also something more than mere "acquiescence to a claim of lawful authority." Bumper v. North Carolina, supra at 549. The fact that a person is not informed by the police that he has an unqualified right to refuse to consent to an entry or search is "a factor to be taken into account" on the issue of voluntariness, but is by no means determinative of that issue. Schneckloth v. Bustamonte, supra at 248-249.

In the instant case, determined as the police were to enter the Freeman apartment, they did not utilize trickery or threats to gain entrance to the dwelling. In considering all the circumstances, we must take into account not only the conduct of the police but also the conduct and statements of persons inside the apartment prior to the police entry.

At the preliminary hearing the judge would have been warranted in finding that, after the loud knocks on the apartment door, someone inside the apartment went to a bedroom window, pulled the shade back, and informed those inside the apartment that there were "cops" all around the building. Ms. Freeman's three children were watching television in the apartment at that time. The apartment occupants argued with the defendant, who expressed his intention not to go to jail by stating that "[t]he only way to get me is take me out of here in a pine box." There was talk of guns by the defendant. A shootout seemed imminently possible. Ms. Freeman was frightened -- not of the police, but of the defendant and what he might do to avoid arrest.

We conclude, as the trial judge did, that it was this atmosphere of tension and fear of the defendant which prompted Ms. Freeman to admit the police in the first instance. In these circumstances the judge was warranted in

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concluding that her consent was freely and voluntarily given since the only element of fear was injected by the defendant's conduct, which was unknown to the police at the time they sought entry into the apartment. In view of the limited information possessed by the police before they entered the apartment and the spontaneity of their action as the situation developed, the circumstances here are distinguishable from those in the case of Commonwealth v. Forde, 367 Mass. 798 (1975), and more closely approximate the circumstances surrounding the warrantless entry into an apartment which we recently upheld in Commonwealth v. Moran, ante, 10 (1976). There was no error.

2. We turn now to the judge's findings and rulings as to the search conducted by the police once they were inside the Freeman apartment. Two independent grounds were offered to justify the seizure of the guns which were found in one of the apartment bedrooms. On the one hand, the judge found that these guns were discovered in plain view by one of the officers who entered the bedroom to ascertain whether that room was the one from which someone had been observed peering out; on the other hand, the judge found that Ms. Freeman expressly consented to a search of the bedroom for the guns while she was conversing with Detective McConkey.

In our view the judge could properly rely on either of the two grounds cited by him. A finding was warranted that Ms. Freeman gave consent to the search of the bedroom for guns, and this permissible finding justified the police action.

Even if we were to assume, as urged by the defendant, that Ms. Freeman gave no consent to search the bedroom, we conclude that the search also was justified on the second ground cited by the judge, for it is clear that in light of what the police observed and learned immediately on entering the apartment, they then were justified in entering the bedroom at least for the purpose of ascertaining whether there was any other person in that room. This investigation generally was justified in the interest of safety of the police and the occupants of the apartment, and particularly

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justified by the observation that someone had earlier looked out of that window toward the police outside. Since the police were lawfully in the bedroom, we need only consider whether the requirements of plain view were met. Coolidge v. New Hampshire, 403 U.S. 443, 465-473 (1971).

The plain view doctrine requires prior police justification for an intrusion in the course of which an officer inadvertently comes across incriminating evidence. The "prior justification" language is merely another way of articulating the necessity for "some . . . legitimate reason for being present unconnected with a search directed against [an] accused." Coolidge v. New Hampshire, supra at 466. The inadvertence requirement simply lends credibility to the doctrine by ensuring that only evidence which the police did not anticipate or know to be at the locus of a search will be seized without a warrant. When the plain view doctrine is relied on to justify a warrantless seizure of evidence, attention must be paid also to seeing that the police, in full possession of probable cause to believe that incriminating evidence is present in a particular place, have not waited until an opportune moment to "place themselves in a position to gain a plain view of the evidence." Commonwealth v. Forde, 367 Mass. 798, 809 (1975) (Hennessey, J., concurring in result).

The testimony before the trial judge on the motion to suppress revealed that Detective McConkey knew that the Freeman apartment was not the residence of the defendant. No officer testified to a reasonable belief that the defendant would be found within the apartment. There was no evidence that the police officers involved even anticipated an occasion to search the Freeman apartment, much less that they knew or anticipated that evidence related to the pawnshop robbery and murder might be located there. As for the inadvertence requirement, in making his finding on plain view the judge would have been justified in relying on the testimony of Detective Richard Driscoll, as corroborated by other police officers present at the time, that Detective Driscoll discovered the unconcealed

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guns, one of which he immediately recognized as a Boston police officer's revolver, while turning to leave the bedroom after checking the window. We conclude that it was not error to admit the two guns in evidence.

3. The defendant based his next two related assignments of error on the premise that no valid consent to enter the Freeman apartment could be demonstrated in all the circumstances. That being the case, he argues, all evidence obtained as a product of the "illegal" police presence would be inadmissible at trial absent a showing that it was independently arrived at. Specifically, he contends that the police could not base probable cause to arrest Nathaniel Williams and Anthony Irving on the information obtained from Ms. Freeman at police headquarters after the "illegal" entry, nor could the prosecution use the testimony of these two accomplices or of Anthony Dobson, who was in the apartment both earlier on the day of November 30, 1973, and during the "illegal" police entry. Cf. Commonwealth v. Bumpus, 362 Mass. 672, 674-675 (1972).

These two assignments of error fail even without application here of the familiar "fruit of the poisonous tree" approach. [Note 6] Commonwealth v. Spofford, 343 Mass. 703, 707-708 (1962). Wong Sun v. United States, 371 U.S. 471, 487-488 (1963). Nardone v. United States, 308 U.S. 338, 340-341 (1939). Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920). That principle is essentially concerned with whether the use of secondary evidence -- that evidence which may have been arrived at through exploitation of the primary illegality -- will in any way encourage police misconduct. We have upheld the trial judge's ruling

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on the voluntariness of Ms. Freeman's consent to the police entry of her apartment, thus removing any stigma of "taint" from whatever information Ms. Freeman later gave, and from the testimony elicited from the three other witnesses.

4. The defendant contends that it was error to deny his motion to suppress from evidence a pair of Converse sneakers taken from him after his arrest. [Note 7] In pressing this contention, the defendant says that his arrest was unlawful (1) because the police entered a dwelling without either an arrest or a search warrant; (2) because there was no probable cause to believe that the defendant was in the apartment; and (3) because the police did not have probable cause to believe that the defendant had committed a crime.

We have already disposed of the issue as to the police entry into the apartment. Beyond this, the trial judge concluded that the sneakers were properly taken as part of a legitimate search incident to arrest. He based his conclusion on the alternatives that the defendant was arrested on probable cause relating to the pawnshop robbery and murder, and that there were two outstanding warrants for the defendant's arrest, the existence of which were known to the arresting officer. We fully agree with the trial judge's conclusions as to both grounds on which he relied. [Note 8]

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Even if we were to agree with the defendant's contention that there was no probable cause to arrest him on the murder and robbery charges then being investigated, there was testimony by at least two officers present at the apartment that they were aware of two extant warrants for the defendant's arrest. [Note 9] One of the officers who testified to a knowledge of the existence of these two warrants was, in fact, the complaining officer in connection with one of the two warrants. This officer further testified, over objection and exception of the defendant, that while on patrol a week or two before November 30, 1973, he had seen the defendant, and that the defendant had fled when the officer got out of his vehicle to apprehend him. It was this officer who identified the defendant and placed him under arrest after the entry into Ms. Freeman's apartment.

The legality of the defendant's arrest in the circumstances described above is beyond question. The police need not carry arrest warrants around on their persons. Compare Commonwealth v. Bowlen, 351 Mass. 655, 659-660 (1967), with Mass. R. Crim. P. 5 (c) (3) (Tent. Final Draft, Feb. 1976). This is not a case where law enforcement officers employed some ruse or acted in bad faith to conceal an absence of probable cause to arrest an individual. See Wilson v. United States, 325 F.2d 224, 225-226 (D.C. Cir. 1963), cert. denied, 377 U.S. 1005 (1964). Cf. Bumper v. North Carolina, 391 U.S. at 549 n.14; Mapp v. Ohio, 367 U.S. 643, 644-645 (1961). "Unlike probable cause to search, probable cause to arrest, once formed will continue to exist for the indefinite future, at least if no intervening exculpatory facts come to light." United States v. Watson, 423 U.S. 411, 449 (1976) (Marshall, J., dissenting).

5. The defendant challenges the trial judge's admission in evidence at the hearing on the motion to suppress the testimony of Detective Frank Olbrys that he was aware of the existence of two warrants issued previous to the defendant's

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arrest. This testimony was accepted on the issue of probable cause to arrest the defendant, and was admitted only to show the knowledge of the arresting officer and to determine whether he acted prudently in the circumstances. The defendant's challenge to the admission of this testimony, bottomed as it was on the best evidence rule, has no merit. The oral testimony was not received as probative of the contents of the arrest warrants. It is well settled that the rule has no application to an attempt to show, among other facts, the existence on a document or action taken by persons in reliance on a document's existence. See W.B. Leach & P.J. Liacos, Massachusetts Evidence 263 (4th ed. 1967); K.B. Hughes, Evidence Section 404 (1961).

6. Several of the defendant's allegations of error relate to the correctness of excluding certain questions asked by defense counsel at the suppression hearing. The excluded questions were designed to show that the police "exploited" their "illegal" entry of the Freeman apartment by interrogating Ms. Freeman to obtain further evidence regarding participants in the crimes. In the same vein, the judge denied the defendant's motions to produce a tape of the Freeman interview by police, to listen to the tape in camera, and to produce the tape and statements of Ms. Freeman for the purpose of refreshing the recollection of the police interviewers. Also excepted to is the denial of the use of Ms. Freeman's grand jury testimony to refresh the recollection of one of the police interviewers, and the striking of testimony of one officer to the effect that Ms. Freeman had told certain officers, on the way to police headquarters, that someone had taken some of the fruits of the robbery "and gone south."

We have fully examined the pertinent portions of the transcript relating to these assignments of error. The trial judge was correct in his rulings on the evidentiary matters and on the several motions. Since the trial judge concluded that there was no primary illegality in the police conduct, and that Ms. Freeman voluntarily consented to the police entry of her apartment, the attempt to show

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"taint" could not have been material to the judge's ultimate conclusion.

At any rate, the defendant had ample opportunity to examine Detective McConkey, Sergeant Frank Mulvey, and the head of the Boston police department homicide unit, as to the circumstances of Ms. Freeman's questioning and the information obtained from her. The only questions excluded by the judge were either leading or called for a hearsay response by the witness McConkey. With respect to one question an offer of proof was made to the judge, but in light of the expected testimony and our conclusion that Ms. Freeman's statements were not tainted, we do not see how the defendant was prejudiced. The witness Mulvey demonstrated through his response to the questioning of defense counsel that he really "couldn't say" whether Ms. Freeman specifically mentioned Williams and Irving by name, and defense counsel was fully permitted to elicit from the witness the few particulars he could recall concerning Ms. Freeman's questioning.

The police tapes were the subject of a pre-trial motion for production which was denied by the judge. They were not utilized by the prosecution for any purpose during the hearing on the motion to suppress. There is nothing before us to show that the tapes contained statements inconsistent with the testimony of the witness in court. We have said in the past, and we reaffirm that principle here, that a defendant does not have an absolute right to have material of this nature produced for his use or inspection at trial. This is a matter which ordinarily rests in the trial judge's sound discretion. Leonard v. Taylor, 315 Mass. 580, 583-584 (1944), quoting from Goldman v. United States, 316 U.S. 129, 132 (1942). But cf. Commonwealth v. Marsh, 354 Mass. 713, 721-722 (1968). Where notes, memoranda, tapes or the like have not been used to refresh a witness's recollection, they, likewise, are not automatically to be made available to the defense, especially when their use would be ostensibly for the purpose of refreshing the memory of some other witness. This is the clear implication of our reasoning in Commonwealth v. Guerro, 357 Mass. 741,

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756-757 (1970), and nothing said by this court with regard to grand jury minutes in Commonwealth v. Stewart, 365 Mass. 99, 105-106 (1974), can be construed to the contrary.

7. The defendant was required personally to exercise his peremptory rights in selecting the jury. He was directed to say either "I am content" or "I challenge." The use of this procedure is denominated error in that it violated the defendant's rights against self-incrimination and to a fair, impartial jury. Further, the defense cites prejudice in the prosecutor's reference to the defendant's exercise of these rights during his closing argument to the jury. [Note 10]

We reject this claim of error. The practice used in this Commonwealth in cases of murder in the first degree to require a defendant, after consultation with his attorney, personally to announce his contentment or dissatisfaction with prospective jurors is sound. The practice does not require additional justification simply because the defense to the indictments is that the defendant, at the time of commission of the offense, was not legally responsible for his actions. Commonwealth v. Millen, 289 Mass. 441, 476-477, cert. denied, 295 U.S. 765 (1935). Though the better approach is for the prosecutor to refrain from any reference to the exercise of peremptory rights in a case such as this one, we believe that the reference made by the prosecutor here was cured by clear instructions to the jury by the trial judge on this matter.

8. The witness Margulis, an employee of the pawnshop, was allowed after extensive voir dire questioning by both sides, to identify the defendant as the one who shot the police officer. The witness's in-court identification of the defendant was bolstered by testimony that the witness spontaneously identified the defendant as the murderer some eight months after the crime, when the witness observed

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the defendant at the pawnshop while a view of the scene was being conducted for the jury's benefit. The defendant claims that both the out-of-court and the in-court identifications should have been excluded by the trial judge, the former because it was the result of a procedure so unnecessarily suggestive and conducive to irreparable mistaken identification as to amount to a violation of due process, the latter because it was the product of the suggestive procedure. Commonwealth v. Kazonis, 356 Mass. 649, 651-653 (1970), and cases cited. See Neil v. Biggers, 409 U.S. 188, 198-199 (1972); Foster v. California, 394 U.S. 440, 442-443 (1969); Stovall v. Denno, 388 U.S. 293, 302 (1967).

The defendant points out that Margulis did not pick out a photograph of the defendant (or of anyone else, for that matter) shortly after the incident, that the witness did not accurately describe the police officer's assailant when interviewed by the police on the day of the incident, and that Margulis did not identify the defendant at a lineup on the evening of the incident. [Note 11] He further emphasizes that the Commonwealth pressed the view at the pawnshop and the handcuffing of the defendant during all phases of the view, and that the witness's testimony, offered on voir dire, was replete with contradictions to a statement given to the police on the day of the crimes regarding his ability to identify the assailant.

As to the suggestiveness of the "confrontation" on the view, the trial judge found that Margulis recognized the defendant right away as the one who shot the police officer, and that this recognition came without questioning or suggestion from anyone. The due process right to a fair trial is violated when the totality of the circumstances surrounding an out-of-court confrontation shows that there is "`a very substantial likelihood of . . . misidentification.'" Neil v. Biggers, supra at 198, citing Simmons v. United States, 390 U.S. 377, 384 (1968). However, the concept of

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misidentification in this context is tied in with the word "confrontation," which connotes "a calculated move by the police to bring about pre-trial observations of a suspect by an eyewitness." Commonwealth v. D'Ambra, 357 Mass. 260, 263 (1970). In the D'Ambra case we said that when an eyewitness accidentally confronts a suspect, and the police make no improper attempt to elicit an identification, the problem of illegality disappears. Ibid.

No evidence was brought out on examination of the witness Margulis that his observation of the defendant was prearranged in any way. The defendant accompanied the jury on the view at his own request. Thus, while it may be difficult to accept that an individual would make no identification of a suspect on the day of the crime, and would unhesitatingly do so on seeing that same suspect, handcuffed and surrounded by police officers, on a day eight months after the incident, the due process argument we consider here calls on us to weigh more than just the witness's credibility. Accepting the judge's findings on this issue as true, see Commonwealth v. Murphy, 362 Mass. 542, 547 (1972), we conclude that the trial judge was warranted in finding that Margulis spontaneously recognized the defendant at a chance encounter. See Allen v. Moore, 453 F.2d 970, 974 (1st Cir.), cert. denied, 406 U.S. 969 (1972).

What we have said regarding Margulis's out-of-court identification has direct bearing in this case on the correctness of the judge's ruling with respect to the in-court identification which followed within a matter of days after the out-of-court encounter. [Note 12]

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9. The witness Anastasio Kapfaskis, an employee of the pawnshop at the time of the incident, testified that he had been shown numerous photographs of possible suspects on three occasions on the day of the murder, had identified one photograph (the defendant's) as that of the man who shot the police officer, and had viewed eleven men in a lineup held on the evening of the murder and identified the seventh man from the left (the defendant) as the one who shot the police officer. Kapfaskis was further allowed, over the objection and exception of the defendant, to make an in-court identification of the defendant as the murderer.

The defendant contends that this witness's testimony concerning his pre-trial identification of the defendant at the lineup should have been excluded because it was the product of an illegal arrest and was based on an invalid lineup which violated the defendant's right to due process of law. It is further alleged that the in-court identification proffered by the witness Kapfaskis should have been excluded because the trial judge made no finding regarding an independent basis for this identification or, in the alternative, the identification was tainted by the "illegal" lineup and should for this reason have been excluded.

In support of his argument regarding the witness's pretrial identification, counsel for the defense brought out on voir dire of this witness that his identification at the lineup was equivocal, and that the officer conducting the lineup unsuccessfully pressed the witness for a more definite statement. [Note 13]

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As to the in-court identification, the defendant cites as controlling the case of Commonwealth v. Mendes, 361 Mass. 507, 511 (1972), where we said that, in a case where there was an illegal pre-trial identification necessitating a new trial, the issue of independent basis for an in-court identification should be considered and resolved by the trial judge in explicit findings.

We find no merit in either of these allegations of error. The trial judge made specific findings, supported by the witness's testimony at trial and on voir dire, that there was nothing impermissibly suggestive about the photograph identifications or the lineup, at which the defendant was represented by counsel. The judge's findings amply support his conclusion. Rather than suggesting that any particular suspect in the lineup was indeed the one who shot the police officer, the officer conducting the lineup was pointing out that the witness should (in fairness, perhaps, to one who was not involved in the pawnshop incident) tell the police if he had seen any of the suspects before. We cannot, in all the circumstances, consider the officer's prodding an intimation that the police believed that one of the lineup participants was the assailant, or that Kapfaskis was identifying "the wrong man." The judge's failure to make explicit findings relating to the issue of independent basis is not error in this case, in light of his specific and well based finding that there was no suggestiveness in

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the photograph identifications or the lineup. [Note 14] Conflicts in Kapfaskis's testimony before the grand jury regarding the assailant's footwear, as well as the full transaction of events at the lineup, were brought to the jury's attention and were correctly treated as matters going to the weight of the witness's identification as opposed to its admissibility.

10. At trial, the Commonwealth presented Anthony Irving as its own witness. On direct examination, Irving testified to a meeting prior to the robbery at which he asked the defendant "if he wanted to make any money." Irving then stated that "we decided [to] make some money, and we had a stolen car, but we didn't want to take the stolen car." After the prosecutor queried the witness as to who was meant by his reference to "we," the defendant objected; the judge permitted the witness to answer, "Me and [the defendant]'" and the defendant excepted to the admission of this testimony. The defendant now contends that, since it is common knowledge that stealing or receiving a stolen automobile is a crime, this testimony was prejudicial, and that the trial judge's statements before the jury in ruling on his objection [Note 15] compounded the prejudice.

It is generally not permissible to show that a criminal defendant committed an unrelated crime on a prior occasion if the purpose of this showing is to raise an inference of guilt on the charge faced by the defendant at trial. Commonwealth v. Welcome, 348 Mass. 68, 70-71 (1964).

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Commonwealth v. Banuchi, 335 Mass. 649, 654 (1957), and cases cited. Nevertheless, this rule is not applicable in all situations where the question arises; rather, there may be other relevant and probative purposes on which to base admission of the testimony of unrelated crimes. We have stated the test to be applied in these instances in this way: "If . . . the value of the statement as legitimate proof appeared to be substantially outweighed by the danger of prejudice not correctable by the good sense of the jury, a case could be made for excluding it. . . ." Commonwealth v. Chalifoux, 362 Mass. 811, 816 (1973).

It is not apparent from the record that the Commonwealth elicited this specific reference to a stolen car for any invalid purpose. Further, any prejudice to the defendant engendered by admission of this testimony was substantially outweighed by the probative value of the statement on the issue of criminal intent, see Commonwealth v. Butynski, 339 Mass. 151, 152 (1959), and the judge's instructions to the jury on the subject.

11. Detective McConkey testified before the jury that following the incident he had shown Lawrence Bean, a witness to the robbery and murder, a group of photographs, and that Bean had selected three or four photographs, one being a photograph of the defendant. The defendant contends that this testimony was inadmissible hearsay and severely prejudicial because it violated his right to confront the witnesses against him as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Bruton v. United States, 391 U.S. 123, 126 (1968). Pointer v. Texas, 380 U.S. 400, 406 (1965).

We do not agree that the admission of this testimony required the allowance of the defendant's motion for a mistrial. The testimony was struck from the record by the judge and a definitive cautionary instruction was given to the jury at the first opportunity, followed by a questioning of the jurors regarding any influence or prejudice the statement may have created in their minds against the defendant. The witness Bean had previously taken the stand and had testified that he selected five or six photographs

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as "resembling" the men in the store on the day in question, but he also testified before the jury that he did not positively identify anyone at the lineup, and the clear implication of his total testimony was that he did not get a good look at the person who shot the police officer. Though the defendant argues persuasively that Bruton v. United States, supra, and Jackson v. Denno, 378 U.S. 368 (1964), authoritatively established that curative instructions, in certain circumstances, are insufficient to remedy the prejudice resulting from inadmissible but dramatic evidence which reaches the jurors' ears, we do not consider those decisions apposite in the circumstances of this case. We hold to our expressed belief that "it cannot be assumed that jurors will ignore strong instructions to disregard certain matters." Commonwealth v. Stone, 366 Mass. 506, 513 (1974), citing Commonwealth v. Gordon, 356 Mass. 598, 604 (1970).

12. The Commonwealth was permitted to read in evidence a portion of the transcript of Ms. Freeman's pretrial testimony after the defendant had purportedly impeached Ms. Freeman at trial through use of another portion of the same transcript of testimony. The defendant claims that his use of the pre-trial testimony was to show a prior inconsistent statement by Ms. Freeman relating to whether she had seen a gun or guns before the police found two guns in one of the bedrooms, and that the Commonwealth could not corroborate Ms. Freeman's trial statement or use the pre-trial testimony to show a prior consistent statement that the witness made. See Commonwealth v. Heffernan, 350 Mass. 48, 52 (1966); Boutillette v. Robbins, 338 Mass. 195, 197-198 (1958); Wilson v. Jeffrey, 328 Mass. 192, 194 (1951).

The defendant's statement of the rule of evidence regarding prior consistent statements, in the abstract, is correct. However, we find no error in the trial judge's ruling allowing the Commonwealth to read the disputed portion of the transcript since it is plain that this ruling was predicated on a desire to keep the witness's entire testimony in context. From a reading of the entire testimony of this

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witness it is readily seen that the specified few responses in her pre-trial testimony, to which the defendant referred, were not inconsistent with her trial testimony that she saw the defendant with a gun before the police entered her apartment. All that the defense succeeded in bringing out at the pre-trial hearing was that Ms. Freeman had not actually seen any guns in the bedroom where they were eventually discovered by the police.

13. Nathaniel Williams, an accomplice of the defendant in the robbery, refused to answer questions (other than preliminary questions) at the pre-trial hearing on the motion to suppress, claiming his privilege under the Fifth Amendment to the United States Constitution. He testified at trial, however, giving a thorough description of the events of November 30, 1973, and inculpating the defendant as to the robbery and the murder. On cross-examination, certain questions propounded by the defendant bearing on Williams's motivation for testifying were excluded by the judge, and it was further ruled that the defendant could not pursue before the jury a line of questioning going to whether Williams had refused to testify at the pre-trial hearing.

The issues raised by the allegation that these evidentiary rulings were in error are whether the judge unduly limited the defendant's rights to cross-examine and confront the witnesses against him, and whether the judge erred in denying the defendant his right to impeach by showing bias or motivation for Williams's testimony. [Note 16]

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Without derogating from the importance to a fair trial of the right of cross-examination, see Commonwealth v. Ahearn, ante, 283, 286-287 (1976); Commonwealth v. Ferrara, 368 Mass. 182, 186-190 (1975); Davis v. Alaska, 415 U.S. 308, 315-318, 320 (1974); Chambers v. Mississippi, 410 U.S. 284, 294-295 (1973), the courts of this Commonwealth have recognized that this right is not necessarily infringed by curbing inquiry where the matters sought to be elicited have been sufficiently brought to the attention of the trier of fact through other questioning or other means. See Commonwealth v. Carroll, 360 Mass. 580, 589 (1971); Commonwealth v. Dominico, 1 Mass. App. Ct. 693, 712-714 (1974). In the instant case there was ample evidence, including the recounting of a stipulation between the prosecutor and Williams's attorney that if Williams testified the court would be asked to accept a plea of guilty of murder in the second degree, which the jury could weigh against the witness's assertion on the stand that he was motivated only to tell the truth. As for the defendant's contention that he was severely prejudiced by not being permitted to bring out that Williams had refused to testify earlier, we think the trial judge was well advised to rule as he did in this case, and there was no abuse of discretion in this ruling. See Commonwealth v. Heffernan, 350 Mass. 48, 50, and cases cited, cert. denied, 384 U.S. 960 (1966).

14. The defendant requested that the following question be directed to prospective jurors: "This case will involve testimony by both police officers and private citizens, and such testimony may be in conflict. Will you tend to give greater weight or belief to the testimony of a police officer, simply because he is a police officer?" Although the Commonwealth had no objection to allowing this question, it was within the sound discretion of the judge to deny the request. Commonwealth v. Pinckney, 365 Mass. 70, 73 (1974). Commonwealth v. Stewart, 359 Mass. 671, 677 (1971) (no abuse of discretion in refusing similar questions even though defendant on trial for killing a policeman). The defendant's argument that refusal to put this question to prospective jurors abridged his right to a fair

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and impartial jury by preventing effective voir dire examination is groundless. G. L. c. 234, Section 28, as amended by St. 1973, c. 919. [Note 17] Commonwealth v. Pinckney, supra, and cases cited. The same can be said for the defendant's further argument that the judge erroneously refused to allow defense counsel personally to ask voir dire questions of the prospective jurors. See Commonwealth v. Nassar, 354 Mass. 249, 253 (1968), cert. denied, 393 U.S. 1039 (1969); Commonwealth v. Kiernan, 348 Mass. 29, 35-36 (1964); Commonwealth v. Geagan, 339 Mass. 487, 504, cert. denied, 361 U.S. 895 (1959), petition for habeas corpus denied sub nom. Geagan v. Gavin, 181 F. Supp. 466, 474 (D. Mass. 1960), aff'd, 292 F.2d 244, 248 (1st Cir. 1961), cert. denied, 370 U.S. 903 (1962).

15. The defendant moved before trial that he be allowed to sit at the counsel table rather than in the prisoner's dock, as is customary in Massachusetts in criminal trials, absent unusual circumstances. We have in other cases considered the same basic arguments as those presented on these appeals, i.e., that use of the dock deprives an accused of his presumption of innocence before the jury and his right to consult freely with counsel during the trial, and prejudices him with respect to in-court identification by witnesses. In those cases we have said that "it is within the sound discretion of the trial judge whether to grant a defendant's request to sit at counsel's table or elsewhere." Commonwealth v. Bumpus, 362 Mass. 672, 680 (1972), citing Commonwealth v. Jones, 362 Mass. 497, 500-501 (1972). [Note 18] In the present case the judge assured counsel for

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the defendant that he would have all the time he needed to confer with his client during the trial. Despite the fact that two identifying witnesses made reference to the man in the dock as the one who shot the police officer, other crucial identification testimony came from accomplices to the crime who, presumably, would have been able to identify the defendant regardless of where he was seated in the court room. We do not think that the judge abused his discretion by arbitrary or unreasonable action, considering the crimes charged and the defendant's reputation.

16. The defendant cites as erroneous the judge's instruction to the jury that the Commonwealth, unlike the defendant, cannot appeal the jury's decision. Claiming that there was no necessity for injecting into the proceedings the "extraneous and prejudicial" issue of appeal rights, the defendant cites decisions from other jurisdictions in which reference to the appeals process was held to be reversible error. See United States v. Fiorito, 300 F.2d 424, 426-427 (7th Cir. 1962). State v. Mount, 30 N.J. 195, 212-215 (1959). Cf. People v. Johnson, 284 N.Y. 182, 187-188 (1940) (prosecutor's questions to prospective jurors). An examination of the cited decisions uncovers the rationale behind such holdings: It is reversible error for the judge or prosecutor to make remarks which have the inescapable effect of reducing the jurors' appreciation of the significance of their deliberations and verdict. Such remarks implicitly tell the jurors not to be overly concerned about rendering hasty or "correct" verdicts, since the defendant is adequately protected by the process of appeal to higher tribunals.

The defendant has indeed touched on a subject which, if it is to be mentioned to the jury at all, must be handled with the greatest of care and discretion by a judge in framing his jury instructions. We can conceive of trials in which the better practice might be to refrain from mentioning

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anything about the Commonwealth's part in the appellate process. Where it appears to the trial judge that the defendant could not have been placed in an unfavorable light through the routine practice of his counsel in objecting and excepting, again it may be preferable to forgo comment. In our time it is probable that jurors are aware of appeals in criminal cases, and unless the trial judge has some reasonable belief that procedures employed during the trial may have unduly confused the jury or unduly prejudiced one side or the other -- with an especially keen eye to any possible unfairness to the defendant -- it is better to allow their awareness to play what small part it will, if any, in the decision they reach.

Having said this, we find no error in the instruction before us. [Note 19] Taken as a whole, this portion of the judge's

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instruction was plainly designed to protect the defendant from prejudice by explaining his counsel's unquestionably proper actions in preserving his client's rights.

17. The witness Susan Reyno was not permitted to make an in-court identification of the defendant because the judge, after voir dire, found that the prosecutor or someone designated by him had shown her a suggestive photographic display just prior to her testimony at the trial. She had seen numerous photographs of possible suspects shortly after the incident and had viewed the lineup held that evening but had not positively identified the defendant on either occasion. However, the Commonwealth did elicit from the witness that she saw and could identify the two men who did not shoot the police officer, and that these two men were not in the court room. The defendant assigns the denial of his motion for a mistrial as error, alleging that the judge permitted the jury, through this procedure, to infer that the witness had made an identification of the defendant. It is further said that the defendant was placed in a quandary through this procedure since he could not cross-examine Mrs. Reyno to show her inability to identify the defendant without exposing the jury to her prior illegal identification.

The judge's ruling, which precluded the in-court identification of the defendant by this witness, did not extend to any testimony she offered regarding the other two men she observed in the store on the day of the crimes. While the record is somewhat muddled on this precise point, it appears that the witness had testified previously that she could identify two "fellows" who, from their locations in the pawnshop at the moment of the shooting, could not have killed the police officer. This testimony was received before the jury without objection. There was no motion to strike this testimony at any point during the witness's examination. The effect of Mrs. Reyno's later testimony was cumulative at worst, see generally Commonwealth v. Kirker, 362 Mass. 202, 203-205 (1972), and its admission does not supply grounds for a mistrial.

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The defendant's dilemma, referred to supra, was more imagined than real. The record shows that the defendant on cross-examination successfully procured an admission from the witness that she had lied to the defendant's investigator about the number of persons involved in the robbery whom she could identify, and the jury were read the lineup transcript where, confronted with the defendant, Mrs. Reyno could not identify him and said, "No, he was taller, I think." The judge excluded further questions by the prosecutor on redirect examination which would have emphasized that Mrs. Reyno had said, prior to or during the voir dire, that she could identify all three men who were in the store. The judge also refused to allow the prosecutor to use before the jury any photographs of the two other men on the basis that they were not supplied to the defendant pursuant to a court order. There was no substantial prejudice to the defendant in these circumstances.

18. The defendant produced at trial two lay and two expert witnesses who testified, inter alia, to the defendant's bizarre behavior since early childhood, attempts to place the defendant in McLean Hospital in early 1972, and the defendant's insanity within the meaning of Commonwealth v. McHoul, 352 Mass. 544, 546-547, 555 (1967). The Commonwealth produced no expert witnesses to rebut this testimony. More will be said of the specifics of the expert testimony infra; for now it is sufficient to note that this evidence properly raised an issue for the jury to resolve. [Note 20]

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The defendant argues that there was error in this case in the judge's instruction to the jury on sanity. The defendant would have this court (1) reverse his convictions on all the indictments because the judge's instruction reversed the burden of proof [Note 21] and in effect allowed the Commonwealth to prove its case by presenting no evidence whatsoever on the issue of sanity, or (2) set aside the verdicts of guilty on all the indictments as against the weight of the evidence since the defendant presented lay and expert testimony as to his legal mental incapacity to commit the crimes charged and the Commonwealth presented no affirmative evidence of sanity, relying instead on the "presumption of sanity." [Note 22]

The trial judge instructed the jury that, "[g]enerally, when a person is charged with a criminal offense and there is no evidence introduced concerning his mental condition, under such circumstances it is to be presumed that the person charged with the crime was of sufficient mental capacity to commit it. We assume under those circumstances, as I just recently indicated, that the man has the mental capacity to commit a crime. The law states that in such cases there is a presumption that a person is sane." He continued to instruct that the jury must "consider and look at the whole evidence regarding the mental condition of the defendant in making [the] determination [of sanity or

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insanity]," and that "[t]he burden is upon the Commonwealth to prove that the defendant was legally sane beyond a reasonable doubt [Note 23] . . . as I have already defined for you the meaning of proof beyond a reasonable doubt."

The judge then pointed out to the jury that "we have had some opinion testimony given by psychiatrists, psychologist, and we have heard other evidence as to the mental capacity of the defendant for his acts or conduct." After explaining that those who have "given special attention and study to the field of mental infirmities and weaknesses [are] allowed to give [their] opinion as to the mental capacity of a defendant to commit a crime," the judge charged that because experts are allowed to express their opinions, "it doesn't follow that [they] are to usurp the function or to stand in the place of the jury." Experts' opinions, the judge noted, are "evidence for your consideration," and "subject to the weight that the jury feels should be given to it."

The judge then told the jury that "[i]n assessing a defendant's mental responsibility for crime, the jury should weigh the fact that a great majority of men are sane and the probability that any particular man is sane." The assessment of mental responsibility for crime, the judge said, "is to be made in each case in the light of the evidence introduced, the circumstances that [the jury] have heard." As "sole judges of the credibility and weight of all evidence on the issue of insanity," the jury "may believe, but is not compelled to believe, any . . . testimony or opinion given by an expert."

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The judge then reiterated that "it has been stated in our judicial decisions that it is for the jury to determine whether or not the fact that a great majority of men are sane and the probability that any particular man is sane may be deemed to outweigh the evidential value of any expert testimony that [a person] is insane." In concluding this portion of his charge, the judge stated that "[i]t is for the jury to determine again on all the evidence and all of the circumstances whether the defendant did or did not lack mental capacity to commit a crime."

We find no reversible error in this charge to the jury. Contrary to the defendant's assertion, the judge did not instruct the jury that they could weigh the "presumption of sanity" as an element of the whole evidence and then determine that the "presumption" outweighed the evidence of lay and expert witnesses that the defendant was insane at the time of the crimes. The judge's reference to the fact that in the mine run of cases (where no evidence is presented by either side on the issue of sanity) a person is "presumed" sane, though we do not see its relevance in this case, was merely introductory. This language set the stage for the judge's more pertinent instructions as to the law in cases where the defendant does produce evidence of insanity. In the latter, more crucial portion of his charge the judge instructed, not as to any "presumption of sanity," but only as to the jury's prerogative of considering the "fact that a great majority of men are sane and the probability that any particular man is sane." [Note 24]

In so instructing the jury, the judge correctly distinguished between the procedural and substantive operations of the "presumption of sanity" which we recently analyzed in Commonwealth v. Kostka, supra at 530-531. The substantive operation of the "presumption," we said in Kostka, does not require or allow the jury to weigh the "presumption" itself as evidence; "rather, the jury weigh

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the facts underlying the presumption and the inferences that may follow from those facts . . . which are considered to be part of the jury's `common experience that most people . . . are sane'" (citations omitted). Commonwealth v. Kostka, supra at 530-531.

Nor are we compelled to conclude that the judge's instruction here permitted the jury to find the defendant sane beyond a reasonable doubt based solely on their common experience that most men are sane. As we have recognized in several decisions (see note 20 supra), most notably Commonwealth v. Smith, 357 Mass. at 180-181, whether or not a defendant testifies or makes an unsworn statement, there is invariably other evidence which a jury are permitted to weigh in reaching their conclusion on the sanity issue. See Commonwealth v. Ricard, 355 Mass. at 515 (evidence of provocation and of defendant's conduct before and after the crime); Commonwealth v. Hartford, 346 Mass. at 489-490 (testimony of witnesses as to defendant's conduct around the time of the crime); Commonwealth v. Cox, 327 Mass. at 613 (evidence of murder committed with deliberately premeditated malice aforethought). In the instant case there was accomplice testimony relating to the defendant's conduct before the crimes, eyewitness testimony relating to the defendant's conduct at the time of the murder, and testimony from others who were able to observe the defendant a short time after the crimes had been committed. In addition, the circumstances of the murder in this case could not have made it "plainly apparent" that no sane person would have committed the act. Commonwealth v. Smith, supra at 180. See Commonwealth v. Francis, 355 Mass. 108, 111 (1969); id. at 112 (Whittemore and Cutter, JJ., dissenting). The charge to the jury clearly and correctly pointed out that their duty was to consider all the evidence in reaching their decision on the defendant's mental responsibility.

Finally, we are not persuaded that the judge's instruction impermissibly shifted the burden of proof to the defendant. The instruction was emphatic as to the Commonwealth's

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burden of proving sanity beyond a reasonable doubt; [Note 25] it left no room for the jury to maneuver in determining whether that burden had been met on all the evidence. As we said in Commonwealth v. Kostka, supra at 533, since sanity is not an element of the crimes charged, "recent Supreme Court cases on the use of presumptions and inferences to establish an element of the offense . . . [and thus shift the burden of proof as to those elements to the defendant, are not] apposite to our inquiry." [Note 26]

19. Disposition under G. L. c. 278, Section 33E.

With particular reference to the defendant's urging that we set aside the verdicts of guilty as against the weight of the evidence because the Commonwealth presented no expert testimony that the defendant was sane at the time of the crimes, our observations in the Kostka case are pertinent. As we said there, "We believe that the instant case can be distinguished readily from the cases in which we have determined that the defendant's evidence of insanity was so compelling that reversal under Section 33E was appropriate." Commonwealth v. Kostka, supra at 537-538.

We have alluded to the testimony in this case bearing on the circumstances of the crimes which the jury could properly consider as relevant to the dual tests of sanity as set forth in Commonwealth v. McHoul, 352 Mass., 544, 546 (1967). There was testimony from one of the defendant's accomplices that he and the defendant planned the pawnshop robbery "to make some money," and that they enlisted as the driver of the getaway car a third person who had a car bearing out-of-State license plates; the witnesses to the murder testified that the defendant shot the policeman

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during a struggle, and then returned to the slain officer's body to remove his wallet and service revolver; Ms. Freeman and Anthony Dobson, who were present in the Freeman apartment after the robbery and murder, testified as to the events surrounding the "splitting up" of the robbery proceeds; Ms. Freeman testified as to the defendant's reaction on learning that the police had surrounded her apartment; and, finally, two of the police officers present at the Freeman apartment testified that the defendant denied that he was Terrell Walker when asked his identity. From this testimony a basis could be found to differentiate between the instant case and cases like Commonwealth v. Mutina, 366 Mass. 810 (1975), and Commonwealth v. Cox, 327 Mass. 609 (1951), where, as we pointed out in Kostka, supra at 538, "there was neither an intelligent plan nor a rational motive for the murder."

Furthermore, though this case differs even from Kostka in that two qualified experts (as compared to one such expert in the Kostka case) expressed the opinion that the defendant was insane at the time of the crimes, we cannot say that the jury would not have been justified in according little weight to both of the experts' opinions. In particular, the opinion of the first of the two experts (Dr. Gatti) was susceptible to receiving slight value since he had seen the defendant only once for approximately an hour and a half some one and one-half years before the pawnshop incident and, admittedly, he had no knowledge of anything that might have happened to the defendant in the interval between his interview with the defendant and the commission of the offenses.

We have examined the entire record and given careful consideration to all the defendant's assertions in view of our duty under G. L. c. 278, Section 33E, and a majority of the court are of the opinion that justice does not require reversal, a new trial, or the entry of a verdict of a lesser degree of guilt.

Judgments affirmed.

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HENNESSEY, C.J. (dissenting in part, with whom Kaplan, J., joins). As in the recent case of Commonwealth v. Kostka, ante, 516 (1976), I am impelled to utilize the unusual procedure of writing the main opinion for the court and including in this separate opinion may dissent from the court's reasoning in declining to set aside the verdict in this case under Section 33E.

Once again we are faced on appeal with a case in which there was uncontradicted expert testimony that the defendant -- who had a long history of mental disease antedating the crime -- was insane at the time he committed the offenses with which he was charged. In my opinion, not only is the fact that the Commonwealth has chosen not to produce affirmative evidence of sanity "inexplicable" (see People v. Silver, 33 N.Y.2d 475, 483 [1974]), but it results, in this case, in injustice of the kind this court may prevent by exercising our discretion under Section 33E.

In the majority's refusal to act under Section 33E here, I discern a trend toward treating the Commonwealth's burden on the sanity issue in cases like Commonwealth v. Mutina, 366 Mass. 810 (1975), and Commonwealth v. Cox, 327 Mass. 609 (1951), differently from its burden in cases such as this one and Commonwealth v. Kostka, supra. There may be some validity to this trend; but the problem remains as to just what role the "presumption of sanity" should play in these cases. I suggest that a more uniform approach by this court would place the Commonwealth on notice that the failure to introduce medical evidence of sanity, in the face of credible evidence tending to establish insanity, means that the Commonwealth "runs the very real risk of reversal and the granting of a new trial" under the provisions of Section 33E. Commonwealth v. Kostka, supra at 539-540, (Hennessey, C.J., and Kaplan, J., dissenting in part).

LIACOS, J. (concurring). I am in general agreement with the majority's reasoning and agree with their result in this case. I share, however, the Chief Justice's concern about the proper role of the "presumption of sanity" after credible evidence of insanity has been adduced. I therefore

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join in that part of his dissenting opinion which suggests that reversal and the granting of a new trial may be appropriate should the Commonwealth fail to produce affirmative evidence of sanity in a case such as this.