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March 29, 1978


Norfolk. Indictment found and returned in the Superior Court on May 19, 1976. The case was tried before Brogna, J.

Hale, C. J., Keville, & Brown, JJ. Brown, J., Concurring in result.


Practice, Criminal, Mistrial, Directed verdict, Opening statement by prosecutor, Instructions to jury. Evidence, Hearsay.

The opinion of the court was delivered by: Hale

At the trial of an indictment charging the defendant with assault by means of a dangerous weapon, evidence warranted findings that an occupant of an automobile driven by the defendant had fired a gun so as to create a reasonable apprehension by two police officers of receiving an immediate battery and that the defendant aquiesced and intentionally assisted in the firing of the gun. [181-184]

The Judge at a criminal trial did not abuse his discretion in denying the defendant's motion for a mistrial at the Conclusion of the prosecutor's opening statement in which the prosecutor referred to testimony of a witness who did not appear before the jury. [184-186] Brown, J., Concurring.

At a criminal trial during which the defense focused upon the possibly excessive use of force by police officers, the Judge did not err in instructing the jury that the issue of excessive force was relevant only as it assisted their assessment of the credibility and weight of the officers' testimony. [186-188]

At a criminal trial a response to a question calling for a police officer's mental impression during a shooting incident was not inadmissible hearsay. [188-189]

The defendant was found guilty by a jury in the Superior Court on indictments charging him with failure to stop for a police officer, operating a motor vehicle so as to endanger, and assault by means of a dangerous weapon, to wit: a revolver. *fn1 He appeals pursuant to G. L. c. 278, §§ 33A-33G, and assigns error in several of the trial Judge's rulings and in portions of the charge to the jury.

1. We address first those assignments of error in which the defendant challenges the Judge's denial of his motions for a directed verdict, to set aside the verdict, and for a new trial. The defendant contends that the Judge erred in denying each of those motions because the Commonwealth had failed to produce sufficient evidence to sustain his conviction on the indictment charging him with having assaulted one Officer Fillebrown with a dangerous weapon.

There was evidence before the jury from which the following facts could have been found. At about 11:40 P.M. on September 27, 1975, four Stoughton police officers were returning to the police station from the vicinity of Peters Drive in Stoughton where they had arrested an individual in relation to a disturbance at a house party. The officers occupied two police cruisers. Along the way Officer Fillebrown, the driver of the first cruiser, pulled over on Central Street near its intersection with Peters Drive to enable the second cruiser in which the prisoner was being transported to catch up. The second cruiser soon arrived at the intersection of Peters Drive and Central Street. At that moment an automobile owned and operated by the defendant approached along Central Street at approximately fifty miles an hour. As the automobile passed by his cruiser, Fillebrown heard two gunshots which came from its direction. Fillebrown's partner, Officer Sullivan, also heard two gunshots and simultaneously observed two bursts of light, which he characterized as muzzle flashes, emanating from the passenger side of the automobile. The two officers occupying the second cruiser heard one gunshot as the automobile passed. A sixteen year old girl who was baby-sitting at the time in a house on the corner of Central Street and Peters Drive also heard two loud noises which she described as either automobile backfires or gunshots.

Fillebrown and Sullivan immediately pursued the automobile down Central Street. The chase, which was conducted at speeds up to seventy miles an hour, ended when the defendant pulled his automobile over on the entrance ramp leading from Central Street to Route 24. The officers pulled up to within twenty feet of the automobile and shined a spotlight on its rear window. They demanded over a loudspeaker that the occupants come out with their hands raised. At that moment the automobile began to move. Fillebrown heard another gunshot. Sullivan also heard the gunshot and simultaneously observed another muzzle flash near a hand which had emerged from the passenger side of the automobile. Sullivan also observed that some objects, which appeared to be shells or cartridge casings, were thrown from the passenger side of the automobile onto the area around the entrance ramp.

The officers resumed their pursuit of the automobile south on Route 24 at speeds up to one hundred twenty miles an hour. Although the officers trailed at times by more than one thousand feet, they never lost sight of the automobile. After the chase had continued for about four miles on Route 24, the engine in the defendant's automobile failed. It began emitting smoke and rolled to a stop in the breakdown lane of Route 24. The officers then arrested the defendant and his passenger, one Legaski. Both officers stated that at the time of the arrest, in the course of which the defendant was wounded, the defendant acted belligerently and menacingly. Investigation revealed that the defendant owned a gun and had a license to carry it.

The defendant argues first that the above evidence was insufficient to sustain his conviction because, aside from the officers' account of the incident, there was no evidence that either he or Legaski possessed or employed a gun on the night in question. He notes that none of the witnesses at trial testified that they had actually seen a gun in his or Legaski's possession during the incident. No bulletholes or other material proof of the alleged shooting was ever produced by the Commonwealth. A post-arrest search of the defendant's automobile and its occupants and a search on the day after the incident of the route of the chase by thirty-five officers, some with metal detectors, failed to produce any trace of a gun, cartridges or casings. The defendant testified that on the night of his arrest mechanical problems in his engine had caused his automobile to produce repeated, loud backfires. He submits ...

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