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07/20/78 COMMONWEALTH v. RICHARD BERNARD (AND A

July 20, 1978

COMMONWEALTH
v.
RICHARD BERNARD (AND A COMPANION CASE *FN1



Suffolk. Indictments found and returned in the Superior Court on April 7, 1977. The cases were tried before St.Cyr, J., a District Court Judge sitting under statutory authority.

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

SYLLABUS BY THE COURT

Identification. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Mistrial, Comment by prosecutor, Agreement between prosecutor and witness, Exceptions, Instructions to jury. Evidence, Conversation.

The opinion of the court was delivered by: Hale

At a criminal trial, there was sufficient evidence to warrant a finding that a witness's in-court identification of the defendant was not so tainted by an earlier photographic identification procedure as to give rise to a substantial likelihood of misidentification. [501-505]

At the trial of two defendants charged with receiving stolen and embezzled property from a courier for a jewelry company, the defendants were not denied their constitutional rights of confrontation or due process of law by the failure of the prosecutor to produce a tape recording of District Court proceedings against the courier in which he was found guilty of larceny of the same property where the prosecutor attempted to secure the recording and was not informed until after the defendants' trial that no such recording existed, and where defense counsel were informed by the prosecutor of the fact that the courier's sentence depended on his cooperation in the case against the defendants and were able thoroughly to explore on cross-examination the possibility that the courier's credibility might be affected by his involvement in the crime and by the inducement to testify. [505-507]

The Judge at a criminal trial did not abuse his discretion in denying the defendants' motion for a mistrial based on an allegedly prejudicial comment by the prosecutor in his opening statement and instead giving clear and emphatic instructions to the jury to disregard the comment. [507-508]

The Judge at a criminal trial did not abuse his discretion in denying the defendants' motion for a mistrial based on a reference by the prosecutor to prior criminal proceedings against the defendants where the reference was vague and inconclusive and where defense counsel had previously opened the subject before the jury. [508]

At the trial of two defendants charged with receiving stolen and embezzled property from a courier for a jewelry company, the Judge did not err in permitting a police officer to testify to statements made to him by the courier for the purpose of revealing the circumstances in which the courier had made other statements, which had previously been elicited from the same witness by defense counsel. [508-509]

At a criminal trial, the Judge did not abuse his discretion in refusing to strike a question to which defense counsel had not objected. [509]

At the trial of two defendants charged with receiving stolen and embezzled property from a courier for a jewelry company, there was no error in permitting the courier to testify to statements made to him by one of the defendants where the Judge gave the jury appropriate limiting instructions. [510]

At a criminal trial, there was no error in the Judge's instructions to the jury with respect to assessing the identification testimony and the credibility of a key prosecution witness. [510]

The defendants appeal from their convictions after a jury trial in the Superior Court on indictments charging them with receiving stolen and embezzled property in violation of G. L. c. 266, § 60. Venios assigns as error the Judge's allowance of an in-court identification of him by a Commonwealth witness. *fn2 Both assign as error the Judge's permitting the trial to proceed despite the Commonwealth's failure to produce certain evidence requested by the defendants in pretrial discovery, the Judge's rulings regarding the admission of certain testimony and other matters in the course of the trial, and the Judge's refusal to charge the jury in conformity with instructions proposed by the defendants. No reversible error is disclosed by any of the defendants' contentions. Accordingly, the judgments of the Superior Court will be affirmed.

Most of the case against the defendants was presented through the testimony of one Michael Foxworth. Foxworth was hired in September, 1976, as a courier for Homer's Jewelry Company, Inc. (Homer's), in Boston. As a courier Foxworth delivered gems and jewelry to and from Homer's and other jewelry establishments in Boston. On December 6, 1976, he was given a consignment of gems and jewelry by Homer's and instructed to make several deliveries throughout the city. After visiting one or two establishments, Foxworth absconded ...


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