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05/23/78 COMMONWEALTH v. DAVID BRUCE MCCOLL

May 23, 1978

COMMONWEALTH
v.
DAVID BRUCE MCCOLL



Suffolk. Indictments found and returned in the Superior Court on September 21, 1972. The cases were tried before Roy, J., and were reported by the Appeals Court for direct appellate review.

Hennessey, C.j., Braucher, Kaplan, & Liacos, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Charge to jury, Comment by Judge, Motion to suppress, Argument by prosecutor. Insanity.

The opinion of the court was delivered by: Hennessey

The Judge at a criminal trial did not err in instructing the jury with respect to a verdict of not guilty by reason of insanity that, at any of the successive court hearings required by law subsequent to such a verdict, the defendant's mental condition might be found to be such as to make the defendant eligible for release from all custody. [320]

Taken as a whole, a Judge's instructions to the jury in a criminal case with respect to medical testimony and conflicting psychiatric opinions were fair and correct. [320-321]

There was no merit in a defendant's claim that the Judge at a criminal trial improperly commented on the evidence. [321-322]

A defendant who was not charged with a capital crime was not entitled to extra peremptory challenges under G. L. c. 234, § 29. [322]

The Judge at a criminal trial did not abuse his discretion in denying the defendant's untimely pre-trial motion to suppress evidence. [322-323]

Comments by a prosecutor in his closing argument that the jury should rely on their common knowledge that not all criminals are insane, that the public has rights as does the defendant and the case should be decided on evidence rather than on sympathy, and that the circumstances of the defendant's arrest supported an inference of his consciousness of guilt were not improper. [323]

Comments by a prosecutor in his closing argument that the defendant was dissembling in his claim of insanity and that the psychiatrist who supported the defendant's claim was not credible in his opinions were predicated on the evidence and were within proper bounds. [323-324]

In the context of a prosecutor's lengthy closing argument, his comments implying that defense counsel contrived with the defendant to present a false claim of insanity, although improper, were not so prejudicial as to constitute reversible error. [324-325]

These are appeals under the provisions of G. L. c. 278, §§ 33A-33G, from two convictions of armed robbery, one of rape, and one of breaking and entering a dwelling house with the intent to commit a felony. The defendant was found guilty after a jury trial in the Superior Court. The Judge imposed four life sentences, with two of the sentences to be served concurrently with each other, and the other two sentences to be served concurrently with each other from and after the terms first imposed.

The appeals were first entered in the Appeals Court. That court reported the case to this court without decision, stating that the Justices of that court were divided equally on the issue of the ...


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