Commonwealth v. Bennett

Massachusetts Appeals Court

Commonwealth v. Bennett

372 N.E.2d 271, 6 Mass. App. Ct. 832, 1978 Mass. App. LEXIS 658

CourtMassachusetts Appeals Court

DecidedJanuary 23, 1978

StatusPublished

Cited by5 cases

This text of 372 N.E.2d 271 (Commonwealth v. Bennett) 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. Bennett, 372 N.E.2d 271, 6 Mass. App. Ct. 832, 1978 Mass. App. LEXIS 658 (Mass. Ct. App. 1978).

Pincite

Opinion

1. Although there was ample evidence from which the jury could have found the defendant guilty of rape and kidnapping, it was error for the judge to restrict defense counsel’s closing argument. See United States v. DeLoach, 504 F.2d 185, 189-191 (D.C. Cir. 1974), cert. denied, 426 U.S. 909 (1976). There was testimony (albeit hearsay) admitted in evidence without objection which could have formed a basis for the hypothesis defense counsel attempted to argue to the jury. Compare Commonwealth v. Pettie, 363 Mass. 836, 840 (1973); Commonwealth v. Montecalvo, 367 Mass. 46, 56-57 (1975). The testimony was relevant, and argument concerning it was essential to the defense (see United States v. Sawyer, 443 F.2d 712 [D.C. Cir. 1971]) to explain and rebut evidence the Commonwealth had presented in its case in chief that the defendant had committed the offenses alleged in the respective indictments. Contrast Commonwealth v. McCann, 97 Mass. 580, 582 (1867). Accordingly, the defendant must be given a new trial. 2. This disposition makes it unnecessary to consider the defendant’s remaining assignments of error which are based on exceptions (see Commonwealth v. Underwood, 358 Mass. 506, 509 [1970]) and have been argued on [833]*833appeal (see Commonwealth v. MacMillan, 5 Mass. App. Ct. 314, 320 [1977]).

Edward Berkin (Peter Wolk with him) for the defendant. James M. Lynch, Special Assistant District Attorney, for the Commonwealth.

Judgment reversed.

Verdict set aside.

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1. Although there was ample evidence from which the jury could have found the defendant guilty of rape and kidnapping, it was error for the judge to restrict defense counsel’s closing argument. See United States v. DeLoach, 504 F.2d 185, 189-191 (D.C. Cir. 1974), cert. denied, 426 U.S. 909 (1976). There was testimony (albeit hearsay) admitted in evidence without objection which could have formed a basis for the hypothesis defense counsel attempted to argue to the jury. Compare Commonwealth v. Pettie, 363 Mass. 836, 840 (1973); Commonwealth v. Montecalvo, 367 Mass. 46, 56-57 (1975). The testimony was relevant, and argument concerning it was essential to the defense (see United States v. Sawyer, 443 F.2d 712 [D.C. Cir. 1971]) to explain and rebut evidence the Commonwealth had presented in its case in chief that the defendant had committed the offenses alleged in the respective indictments. Contrast Commonwealth v. McCann, 97 Mass. 580, 582 (1867). Accordingly, the defendant must be given a new trial. 2. This disposition makes it unnecessary to consider the defendant’s remaining assignments of error which are based on exceptions (see Commonwealth v. Underwood, 358 Mass. 506, 509 [1970]) and have been argued on [833]*833appeal (see Commonwealth v. MacMillan, 5 Mass. App. Ct. 314, 320 [1977]).

Edward Berkin (Peter Wolk with him) for the defendant. James M. Lynch, Special Assistant District Attorney, for the Commonwealth.

Judgment reversed.

Verdict set aside.

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Bluebook (online)

372 N.E.2d 271, 6 Mass. App. Ct. 832, 1978 Mass. App. LEXIS 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bennett-massappct-1978.

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