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08/02/78 COMMONWEALTH v. GEORGE W. PERRY

August 2, 1978

COMMONWEALTH
v.
GEORGE W. PERRY



Suffolk. Indictments found and returned in the Superior Court on February 22, 1977. Indictments found and returned in the Superior Court on February 22, 1977.

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

SYLLABUS BY THE COURT

Assault with Dangerous Weapon. Practice, Criminal, Instructions to jury, Continuance, Assistance of counsel. Constitutional Law, Waiver of constitutional rights. Waiver. Evidence, Cumulative, Redirect examination, Prior conviction.

The opinion of the court was delivered by: Hale

At the trial of a defendant charged with armed assault in a dwelling with intent to commit a felony, evidence that the defendant wielded a toy gun which appeared capable of causing harm and that the gun so frightened the victim that she yielded to his directions and suffered chest pains was sufficient to warrant a finding that the toy gun was a "dangerous weapon" within the meaning of G. L. c. 265, § 18A. [533-536]

At the trial of indictments under G. L. c. 265, §§ 17 and 18A, there was no error in the Judge's instructions with respect to the meaning of "dangerous weapon" as used in those sections. [536-537]

There was no merit to a criminal defendant's contention that he was denied his constitutional right to effective assistance of counsel by the Judge's denial of his motions for appointment of new counsel and for a continuance. [537-541]

Evidence at a hearing on a defendant's motion to suppress statements he had made to police officers warranted a finding that the defendant had made a knowing, intelligent, and voluntary waiver of his rights. [541]

At a criminal trial, the Judge did not err in excluding proffered testimony which was merely cumulative. [541-542]

At a criminal trial, the Judge did not err in permitting a witness whom the defendant had attempted to impeach by a prior inconsistent statement to explain the statement on redirect examination. [542]

At a criminal trial, the Judge did not abuse his discretion in continuing the case at 3:00 P.M. on the penultimate day of the trial until the following morning to afford counsel the opportunity to review the records of the defendant's prior convictions, even though the continuance resulted in the introduction of those records as the final evidence in the case immediately prior to arguments and charge. [542]

At a criminal trial, the Judge did not err in permitting the prosecutor to impeach the defendant as a witness by reading the records of his convictions without introducing in evidence the records themselves. [542]

In this trial conducted pursuant to G. L. c. 278, §§ 33A-33G, the jury could have found that on the morning of February 14, 1977, the victim, a sixty-six year old woman, was returning home after a short walk to the grocery store. As she was unlocking the door to her apartment building, the defendant, posing as a heating man, demanded entrance to her apartment. He followed her up the stairs and entered the apartment with her despite her protests that there was nothing wrong with the heating system. After he came into the apartment he closed the outside door, which locked automatically. He pretended to check the heating system and then pulled a "gun" (which was later discovered to be a black plastic toy pistol), putting it over the head of the victim with one hand and throwing her down to the floor with his other hand. The victim was "petrified." She asked the defendant not to kill her and said she would give him whatever he wanted. She obtained money from various places in her apartment and gave it to the defendant. He continued to threaten her and search her apartment for more money. The victim remained in her bedroom as ordered by the defendant. After fifteen or twenty minutes, four policemen, who had been summoned by a neighbor who had heard the victim's cries, knocked at the door, and, receiving no response, broke down the door and arrested the defendant. The police read him the Miranda rights, to which he responsed, "I know my rights; I've been through this before." In response to brief questioning the defendant made certain admissions. Further facts will be related as necessary to our Discussion of those assignments which the defendant has argued.

The defendant was indicted on charges of armed robbery (G. L. c. 265, § 17) and armed assault in a dwelling with intent to commit a felony (G. L. c. 265, § 18A, as appearing in St. 1969, c. 473). He was found guilty and sentenced to ten to fifteen years on each indictment, the sentences to run concurrently. He has brought ...


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