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08/15/78 COMMONWEALTH v. CHARLES BROWN

August 15, 1978

COMMONWEALTH
v.
CHARLES BROWN



Suffolk. Indictments found and returned in the Superior Court on March 11, 1975. The cases were tried before McGuire, J.

Hennessey, C.j., Quirico, Kaplan, Wilkins, & Abrams, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Access to photographs used in identification, Mistrial, Conduct by prosecutor, Capital case. Evidence, Photograph, Other offense.

The opinion of the court was delivered by: Quirico

At a criminal trial, the inability of the Commonwealth to produce the entire group of photographs from which a pretrial identification of the defendant was made did not render the photographic identification inadmissible where there was no indication that the procedures with regard to the photographic identification were impermissibly suggestive. [161-164]

At the trial of a defendant charged with murder in the first degree and armed robbery, a mistrial was not required by the fact that the prosecutor asked the defendant's mother about her knowledge of her son's heroin habit where the Judge excluded the question and instructed the jury to disregard it. [164-166]

At the trial of a defendant charged with murder in the first degree and armed robbery, a mistrial was not required by the prosecutor's persistence in alluding to the question of the defendant's possible heroin habit, in spite of the Judge's instructions, where the Judge's immediate exclusion of the question combined with his previous instructions to the jury cautioning them to disregard such testimony eliminated any possible prejudicial effect. [166]

This court expressed its expectation that in all capital cases hereafter brought before it on appeal the briefs will contain appropriate arguments addressed to the court's review under the provision of G. L. c. 278, § 33E. [167-169]

The defendant was indicted for murder in the first degree and armed robbery. After a jury trial, he was convicted on both indictments. The defendant appeals pursuant to G. L. c. 278, §§ 33A-33G, and argues the following assignments of error. *fn1 The trial Judge erred in (1) admitting evidence of a photographic identification of the defendant as the assailant of the victim notwithstanding the Commonwealth's inability to produce the group of photographs from which his picture was selected, and (2) denying the defendant's motions for mistrial based on (a) a question asked by the prosecutor of the defendant's mother as to her knowledge of her son's heroin habit, and (b) the persistence of the prosecutor in alluding to that question, in spite of the Judge's instructions to the contrary, by asking the defendant's mother if, during a particular time period relative to the date of the crimes charged, she had observed the defendant's arms.

We conclude that there was no error, and that there is no basis to modify the jury verdict or to grant the defendant any other relief under G. L. c. 278, § 33E.

We summarize the evidence presented by the prosecution. About 10:15 P.M. on October 14, 1974, Diane Kenney and the victim, Michael Richardson (Richardson), arrived by taxicab at the Kenney home at 23 Sunnyside Street in Jamaica Plain. When the taxicab stopped near the driveway of the house, Richardson got out while Mrs. Kenney gave the driver four one dollar bills for the fare. As Mrs. Kenney stepped out of the taxicab, a black male opened the door on the driver's side, grabbed the one dollar bills, leaving part of one of the bills in the driver's hand, and shoved an object into the side of the driver's body. The driver testified that the object felt like a knife. *fn2

On seeing the struggle between the man and the driver who attempted to get out on the other side of the vehicle, Mrs. Kenney screamed. This apparently caused the man to abandon his struggle with the driver. Mrs. Kenney ran to the porch of her neighbor's home and from there she observed two men outside the taxicab, one holding Richardson from behind, and the other standing to Richardson's side. Mrs. Kenney's husband, John Kenney (Kenney), and their fifteen-year old daughter, Paula, who were in their second floor apartment, heard Mrs. Kenney's screams and they ran down the stairs and outside onto the porch. From there, they both observed a black male strike Richardson in the neck. *fn3 As a result of this blow, Richardson began to bleed profusely and he died at the scene shortly thereafter.

After observing the man strike Richardson, Kenney took off his belt, began to swing it and chased the man down Sunnyside Street, followed closely by Paula. Although they did not catch him, they came quite close to him and had an opportunity to observe his features. The chase ended when the man entered a late model blue automobile, occupied by another person, and drove away. Both Kenney and Paula observed him again at close range through a window of the automobile as he turned to face them. *fn4 Kenney swung his belt in an effort to hit the window, but instead struck the top portion of the window on the driver's side of the car. The car then sped down Sunnyside Street. Paula was able to see a portion of the license plate number, and it was either 874 or 784, with two "1's" at the end. After the car drove off Kenney noticed another black male running into a court yard away from Sunnyside Street.

Approximately a week later, Boston police officers showed Kenney two thick books of photographs of black males from which he selected a picture of the defendant as the man he had observed strike Richardson. On the same date, Paula was shown fifteen photographs of black males from which she chose a picture of the defendant as the person she had seen strike ...


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