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05/18/78 COMMONWEALTH v. TYRONE LAYTON

May 18, 1978

COMMONWEALTH
v.
TYRONE LAYTON



Suffolk. Indictment found and returned in the Superior Court on October 27, 1975. The case was tried before Roy, J.

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

SYLLABUS BY THE COURT

Evidence, Business records, Prior conviction. Practice, Criminal, Argument by prosecutor, Lesser included crimes.

The opinion of the court was delivered by: Hale

At a criminal trial no error appeared in the exclusion from evidence of an attendance record kept at a group home for young adult males, in the absence of any showing that would have enabled the Judge to make the preliminary findings required before admitting the record under the business records exception to the hearsay rule. [361-362]

At the trial of an indictment for armed robbery, the prosecutor's remark that "he streets . . . are becoming a jungle," while irrelevant, was adequately dealt with in a charge directing the jury's attention solely to the evidence presented at trial. [362-363]

At the trial of an indictment for armed robbery the Judge properly refused to instruct the jury on lesser included offenses of unarmed robbery and simple assault, where the defendant's attorney in his closing argument and in his thorough cross-examination of the victim conceded the fact of the robbery and did not dispute the presence of a gun. [363-364]

The Judge at a criminal trial did not err by twice referring to the defendant as an "inmate" of a group home for young adult males. [364]

The defendant was found guilty after a jury trial held pursuant to G. L. c. 278, §§ 33A-33G, on an indictment charging him with armed robbery and has appealed. He claims to have been prejudiced by the Judge's rulings on the admission and exclusion of evidence, by certain statements made in the jury's presence by both the Judge and the prosecutor, and by the Judge's refusal to instruct the jury on lesser included offenses of armed robbery. We summarize the facts which could have been found by the jury.

The victim, Thomas Enman, testified against the defendant at trial. Enman was a college student employed as a taxi driver. At about 11:00 P.M. on August 21, 1975, three young black men entered his taxicab in the Coolidge Corner section of Brookline. The men asked to be driven to Elm Hill Avenue in Boston. The route between Collidge Corner and Elm Hill Avenue is well lighted. Enman looked in his rearview mirror several times during the ride and observed the three men. When the cab arrived at Elm Hill Avenue, the men directed Enman to pull up in a side street. Before Enman was able to park the cab the man sitting directly behind him took hold of a bandana which Enman wore around his neck and began to choke him. All three beat Enman. One of the men brought out a handgun. He struck Enman on the head with the gun. The man held the gun under Enman's nose and demanded all his money. They took Enman's wallet and his evening's fares and ran off down a nearby alley.

Enman immediately caused the robbery to be reported to the police. That night he described the robbers to the officers. His description of the robber who had been sitting directly behind him fit the defendant.

Enman went to the police station on the following morning and was shown several books containing photographs of black males. He selected the defendant's photograph out of one of the books, positively identifying it as that of one of the robbers. Enman was unable to discover in the books photographs of the other two robbers. At trial he identified the defendant as one of the robbers.

1. The defendant attempted to introduce in evidence a copy of an attendance record kept by an organization named Hillside House, a group home for young adult males who "get involved with the law." The defendant claimed that an entry in that record indicated that he had been present at Hillside House by midnight on August 21, 1975, and the defendant sought to introduce that evidence to support his alibi. The Judge excluded the evidence. The defendant contends that the writing was admissible under the business records exception to the hearsay rule.

At a voir dire held to determine whether the record should be admitted one James Leak, an employee of Hillside House, testified that the defendant had resided there during August, 1975, and that the record had been kept in a locked office there. The record consisted of a calendar blank upon which were written the defendant's name and certain entries such as "wake up," "dinner & chore" and "curfew." Leak testified that the inscription of an "O" in the "curfew" column for the date August 21, 1975, indicated that the defendant had returned to Hillside House on that date in time for the ...


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