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September 22, 1977


Suffolk. Indictments found and returned in the Superior Court on June 13, 1975. The cases were tried before Mason, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Quirico, Braucher, Wilkins, & Abrams, JJ.


Practice, Criminal, Mistrial, Deliberation of jury, Verdict. Evidence, Photograph.

The opinion of the court was delivered by: Abrams

At the trial of indictments for armed robbery and murder, although there was evidence that prior to trial two eyewitnesses had identified the defendant's brother as the perpetrator before independently selecting the defendant, there was no error in the denial of a motion for a mistrial by reason of the prosecutor's asking a police investigator during redirect examination as to whether a warrant had been sought for the arrest of the brother where, before a reply was received, objection was made and the question was struck and the jury were immediately instructed to disregard the question and to draw no inferences from it. [425-426]

In a capital case, where three eyewitnesses on cross-examination had testified that the perpetrator was approximately the height of the brother of the defendant, who was several inches shorter and owned a pair of platform shoes, there was no error in excluding a photograph of the defendant's brother in stocking feet, sitting near a pair of platform shoes. [426-427]

At a trial for armed robbery and murder, where the jury returned to the court room and asked the Judge a question calling for further instructions, there was no reversible error in the Judge's declining to answer the question, where he had already correctly explained the elements of the various crimes and stated that his instructions and supplementary instructions were sufficient for the jury to arrive at verdicts. [427-428]

In criminal cases tried together, where the jury returned their verdicts five minutes after the trial Judge declined to give a supplementary instruction which they had requested, there was no abuse of discretion in his then denying the defendant's motion to poll the jury. [428]

Eugene Jones (defendant) was tried in the Superior Court in April, 1976, pursuant to indictments charging him with armed robbery and murder. *fn1 The jury found the defendant guilty of armed robbery and murder in the second degree. Accordingly, the Judge imposed a mandatory life sentence on the murder conviction and a concurrent eighteen to twenty year sentence on the armed robbery conviction. The defendant's motion for a new trial was denied. Thereafter he duly noted his appeal. On February 17, 1977, we ordered that the matter be transferred to this court. We affirm the judgments of the Superior Court.

From the evidence adduced at trial, the jury could have found that on August 3, 1974, at approximately 4:30 P.M., the defendant entered the J & D Liquor store on Blue Hill Avenue, Roxbury, in the company of another man. The accomplice selected a can of beer from the shelf and paid for it. When the clerk, one Carl Cash, returned with the customer's change, the accomplice produced a pistol and took twenty or thirty dollars from the register as well as the clerk's wallet. While this was happening, the defendant, who was also brandishing a gun, stood inside the front door, acting as lookout. As a customer entered the store during the course of the robbery, the defendant shot him in the chest, mortally wounding him. Two other employees, Robert Gelzer and Sherman Baker, were present in the store and witnessed the crimes.

Several hours later, the three employees proceeded to police headquarters. Cash was shown a photographic array, from which he selected, as his alleged assailant, a picture of the defendant's brother. Gelzer similarly selected a photograph of the defendant's brother, and he chose the same person when he viewed another array on the next day. When Cash and Gelzer were asked on August 14, 1974, to attempt another photographic identification from a spread which included the defendant's brother and for the first time the defendant himself, both witnesses independently selected the defendant as the perpetrator. The issue of identification was fully explored at trial.

1. Motion for mistrial -- During redirect examination of the police investigator, the prosecutor inquired whether a warrant was sought for the arrest of the defendant's brother in connection with the armed robbery and homicide. Before the witness had an opportunity to answer, defense counsel objected to the question and moved for a mistrial. Though the objection was sustained and the question struck, the Judge declined to order a mistrial. He did, however, instruct the jury to disregard the question and to draw no inferences from it.

The defendant contends that where the police seek to arrest one person rather than another, a natural inference is created that the other person did not commit the crime. Since his entire defense was erected on a theory of mistaken identity, the defendant argues that the question, which was aimed at showing that the police had dismissed the brother as a suspect, prejudiced his case. He therefore argues that the Judge erred in his Disposition of the motion for mistrial.

Ordinarily the declaring of a mistrial is within the sound discretion of the Judge. Commonwealth v. Flynn, 362 Mass. 455, 471 (1972). Commonwealth v. Jasilewicz, 361 Mass. 877 (1972). Commonwealth v. Bellino, 320 Mass. 635, 644 (1947), cert. denied, 330 U.S. 832 (1948). In the instant case, the witness was not permitted to respond to the question, and thus no arguably incompetent testimony was heard by the jury. Cf. Commonwealth v. Barnett, 371 Mass. 87, 96 (1976), cert. denied, 429 U.S. 1049 (1977); Commonwealth v. Tatro, 4 Mass. App. Ct. 295, 298 (1976); Commonwealth v. Early, 349 Mass. 636, 637 (1965). Moreover, the Judge ordered the question struck and immediately instructed the jury that they were to draw no inferences from the question. *fn2 See Commonwealth v. Barnett, supra at 96; Commonwealth v. Flynn, supra at 470; Commonwealth v. Sousa, 350 Mass. 591, 595 (1966). It is normally assumed that the jury followed the Judge's ...

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