Commonwealth v. Amorin

440 N.E.2d 1305, 14 Mass. App. Ct. 553, 1982 Mass. App. LEXIS 1469
CourtMassachusetts Appeals Court
DecidedOctober 25, 1982
StatusPublished
Cited by1 cases

This text of 440 N.E.2d 1305 (Commonwealth v. Amorin) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Amorin, 440 N.E.2d 1305, 14 Mass. App. Ct. 553, 1982 Mass. App. LEXIS 1469 (Mass. Ct. App. 1982).

Opinion

Smith, J.

The defendant was convicted on indictments that charged armed robbery (G. L. c. 265, § 17), assault and battery by means of a dangerous weapon (G. L. c. 265, § 15A),1 and unlawfully carrying a firearm (G. L. c. 269, § 10[a]). He contends on appeal that: (1) his motion to suppress in-court identifications was wrongfully denied; (2) the failure of the prosecution to produce all of the photographs used in the identification procedure prejudiced his case; (3) the trial judge committed error in his instructions to the jury on the issue of identification; and (4) the trial judge erred in denying his motion for a required finding of not guilty on the indictment charging a violation of G. L. c. 269, § 10(c). We summarize the relevant evidence.

In the early morning hours of December 3, 1979, the victim and a woman companion were seated in a parked vehicle in New Bedford. After alighting from the passenger side, the victim was struck by a heavy object, later identified as a BB gun. The assailant demanded money and again struck the victim as he reentered the automobile. The assailant was beaten off by the victim’s companion, who immediately drove the victim to the police station. Both the victim and his companion, at that time, gave descriptions of the assailant to the police.

Nine days after the incident, the victim and his companion were requested by the police to view photographs at the police station.2 The woman companion examined about six black and white photographs and selected one. Out of a [555]*555second group of six color pictures, she selected another photograph. Both photographs were different views of the defendant, and she identified the photographs as depicting the assailant. The male victim looked at the six black and white and the six color photographs and selected the photographs of the defendant as his assailant.

1. The denial of the motion to suppress. The defendant assigns as error the denial of his motion to suppress the identifications. The defendant argues that the identifications were impermissibly suggestive because the two eyewitnesses were in the same room at the time they made the identifications. Commonwealth v. Worlds, 9 Mass. App. Ct. 162, 168-172 (1980). Although the eyewitnesses were in the same room, there was no evidence suggesting that the eyewitnesses viewed the photographs together or communicated to each other or were otherwise aware of their respective choices. The defendant also contends that because the police considered the defendant to be a suspect, they placed the defendant’s photograph at the bottom of the arrays. There was no evidence that the police, at any time prior to or at the time of the identifications, called to the attention of the eyewitnesses the location of the defendant’s photographs. The other alleged weaknesses in the photographic identification procedure “properly were left for consideration by the jury as bearing on the weight to be given the identifications.” Commonwealth v. Moynihan, 376 Mass. 468, 477 (1978). Therefore, the defendant’s motion to suppress the identifications (as well as the related motion for a required finding of not guilty) was rightfully denied. The defendant has failed to sustain his burden of demonstrating that the identification procedure was unfairly suggestive. Commonwealth v. Botelho, 369 Mass. 860, 865-868 (1976).

2. The failure to produce all photographs. At the suppression hearing the defendant learned, for the first time, that the eyewitnesses had made identifications from six col- or photographs, in addition to the identifications made from the six black and white photographs. The defendant contends that the Commonwealth violated a discovery [556]*556agreement to provide him with the details of the identification procedure and to permit him to examine all the photographs present in the arrays and that he was prejudiced by this failure of the Commonwealth. We hold that the defendant has not shown prejudice, especially in view of the fact that the judge, at the conclusion of the suppression hearing, suppressed the color photographs because of the failure of the Commonwealth to deliver them to the defendant. The eyewitnesses, at trial, did not refer to their out-of-court identifications made from the color photographs.

3. The judge’s charge on identification. The defendant contends that the judge erred in not instructing the jury that in regard to the identifications, the Commonwealth must prove them beyond a reasonable doubt. We are satisfied that the judge’s instructions, when reviewed as a whole, adequately explained to the jury the Commonwealth’s burden on all the essential elements of the charged crimes, including identification. See Commonwealth v. Alleyne, 10 Mass. App. Ct. 28, 30-31 (1980); Commonwealth v. Durant, 10 Mass. App. Ct. 768, 772-773 (1980).

4. Motion for required finding of not guilty on firearm charge. The defendant assigns as error the trial judge’s denial of a motion for a required finding of not guilty on the charge of carrying a firearm without a license in violation of G. L. c. 269, § 10(a). At trial, a ballistics expert testified that the BB gun, with a barrel of less than three inches long, identified by the victim and his companion as the weapon used in the robbery, was capable of discharging BB shot, and gave as his opinion that the BB gun was a firearm within the meaning of the statute. See G. L. c. 140, §§ 121 & 122. The defendant contends that G. L. c. 269, § 10(a)(4), exempts adults who carry BB guns from criminal prosecution and from the licensing requirements of G. L. c. 140. The defendant states that the only prohibition against the carrying of BB guns is that found in G. L. c. 269, § 12B, which forbids the possession of BB or air guns by a minor, except by permit or when under adult supervision. Alter[557]*557natively, he argues that §§ 10(a) and 12B, read together, are unconstitutionally vague.

The defendant does not contest that a BB gun, capable of discharging BB shots, is within the definition of a firearm set out in G. L. c. 140, § 121. See generally Commonwealth v. Sampson, 383 Mass. 750, 761-762 (1981).3 As a firearm, it is subject to the licensing requirements of cc. 140 and 269 and, therefore, carrying a BB gun is a criminal offense under G. L. c. 269, § 10(a), unless a statutory exemption applies.4 Only one such exemption is at issue in this case, G. L. c. 269, § 10(a) (4), which applies to persons carrying BB guns who are in compliance with G. L. c. 269, [558]*558§ 12B, that is, a minor with a sporting or hunting license and a permit or under adult supervision.5

Nothing in G. L. c. 269, §§ 10(a) and 12B, suggests that G. L. c. 140 and G. L. c. 269 do not apply to adults carrying BB guns other than might be entailed in accompanying a minor under G. L. c. 269, § 12B. Rather, the two sections should be viewed as having an entirely different purpose, namely, to provide a limited exception, in the case of BB guns and air rifles, to the general statutory prohibition against the carrying of firearms by minors.6 Thus, although a minor may not obtain a firearms license, G. L. c. 269, § 12B, allows a minor, by license and permit or under adult supervision, to legally carry a BB gun without such a license. General Laws c. 269, § 10(a), may be viewed simply as a parallel to G. L. c.

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Bluebook (online)
440 N.E.2d 1305, 14 Mass. App. Ct. 553, 1982 Mass. App. LEXIS 1469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-amorin-massappct-1982.