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03/29/78 COMMONWEALTH v. FRANK LOVELL

March 29, 1978

COMMONWEALTH
v.
FRANK LOVELL



Middlesex. Indictments found and returned in the Superior Court on February 12, 1974. The cases were tried before Mazzone, J.

Hale, C.j., Keville, & Grant, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Speedy trial, Defendant in custody of another jurisdiction, Double jeopardy, Instructions to jury. Constitutional Law, Double jeopardy. Evidence, Other offense. Identification.

The opinion of the court was delivered by: Keville

General Laws c. 277, § 72A, does not apply to a prisoner incarcerated in a Federal institution. [174-175]

The defendant's conviction in a Federal court of armed robbery of a federally insured bank while assaulting and putting bank employees in jeopardy by the use of dangerous weapons did not preclude State prosecution, based on the same event, on charges of assault with a dangerous weapon with intent to murder a policeman and a passing motorist, assault and battery on the motorist, receiving a stolen motor vehicle, and possession of a machine gun. [175-177]

Evidence concerning a bank robbery, a crime for which the defendant was not on trial, was admissible at the trial of the defendant for certain offenses committed during the robbery. [177-178]

At the trial of the defendant for offenses committed during a bank robbery evidence was sufficient to allow the jury to infer that the defendant was the named individual to whom witnesses had referred. [178]

Taken as a whole, the Judge's charge to the jury at a criminal trial did not dilute the Commonwealth's burden of proving the case beyond a reasonable doubt. [178-179]

Where the Judge during a criminal trial had given the substance of an instruction requested by the defendant, he was not required to repeat the instruction in the precise language requested by the defendant. [179]

The defendant Lovell appeals pursuant to G. L. c. 278, §§ 33A-33G, from convictions on five indictments arising from the armed robbery of a branch of the Suburban National Bank in Woburn on August 9, 1973. *fn1 Lovell assigns as error the Judge's denial of his motion to dismiss the indictments on grounds of former jeopardy and denial of his right to a speedy trial. He also argues reversible error in the Judge's admission of certain evidence tending to show his involvement in crimes with which he was not charged in that State prosecution and in the Judge's response to the jury's inquiry on the question of joint venture. Relevant facts will be stated to the extent required in the Discussion of each issue.

1. Speedy Trial Claim.

Lovell was arrested on September 15, 1973, in New York City by Federal agents and shortly thereafter was indicted by a Federal grand jury in Massachusetts for armed robbery of a federally insured bank while assaulting and putting bank employees in jeopardy by the use of dangerous weapons. 18 U.S.C. § 2113(a) and (d) (1970). He was convicted on those Federal charges in October, 1974.

He was indicted in the Superior Court on February 12, 1974, for crimes connected with that bank robbery. He was arraigned on those charges on February 25, 1974, apparently while in the custody of Federal officials. On March 6, 1974, and on August 12, 1974, Lovell filed motions for a speedy trial. Those motions ...


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