Commonwealth v. Nardi

374 N.E.2d 323, 6 Mass. App. Ct. 180, 1978 Mass. App. LEXIS 570
CourtMassachusetts Appeals Court
DecidedMarch 29, 1978
StatusPublished
Cited by3 cases

This text of 374 N.E.2d 323 (Commonwealth v. Nardi) 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. Nardi, 374 N.E.2d 323, 6 Mass. App. Ct. 180, 1978 Mass. App. LEXIS 570 (Mass. Ct. App. 1978).

Opinions

Hale, C.J.

The defendant was found guilty by a jury in the Superior Court on indictments charging him with failure to stop for a police officer, operating a motor vehi-[181]*181ele so as to endanger, and assault by means of a dangerous weapon, to wit: a revolver.1 He appeals pursuant to G. L. c. 278, §§ 33A-33G, and assigns error in several of the trial judge’s rulings and in portions of the charge to the jury.

1. We address first those assignments of error in which the defendant challenges the judge’s denial of his motions for a directed verdict, to set aside the verdict, and for a new trial. The defendant contends that the judge erred in denying each of those motions because the Commonwealth had failed to produce sufficient evidence to sustain his conviction on the indictment charging him with having assaulted one Officer Fillebrown with a dangerous weapon.

There was evidence before the jury from which the following facts could have been found. At about 11:40 p.m. on September 27, 1975, four Stoughton police officers were returning to the police station from the vicinity of Peters Drive in Stoughton where they had arrested an individual in relation to a disturbance at a house party. The officers occupied two police cruisers. Along the way Officer Fillebrown, the driver of the first cruiser, pulled over on Central Street near its intersection with Peters Drive to enable the second cruiser in which the prisoner was being transported to catch up. The second cruiser soon arrived at the intersection of Peters Drive and Central Street. At that moment an automobile owned and operated by the defendant approached along Central Street at approximately fifty miles an hour. As the automobile passed by his cruiser, Fillebrown heard two gunshots which came from its direction. Fillebrown’s partner, Officer Sullivan, also heard two gunshots and simultaneously observed two bursts of light, which he [182]*182characterized as muzzle flashes, emanating from the passenger side of the automobile. The two officers occupying the second cruiser heard one gunshot as the automobile passed. A sixteen year old girl who was babysitting at the time in a house on the corner of Central Street and Peters Drive also heard two loud noises which she described as either automobile backfires or gunshots.

Fillebrown and Sullivan immediately pursued the automobile down Central Street. The chase, which was conducted at speeds up to seventy miles an hour, ended when the defendant pulled his automobile over on the entrance ramp leading from Central Street to Route 24. The officers pulled up to within twenty feet of the automobile and shined a spotlight on its rear window. They demanded over a loudspeaker that the occupants come out with their hands raised. At that moment the automobile began to move. Fillebrown heard another gunshot. Sullivan also heard the gunshot and simultaneously observed another muzzle flash near a hand which had emerged from the passenger side of the automobile. Sullivan also observed that some objects, which appeared to be shells or cartridge casings, were thrown from the passenger side of the automobile onto the area around the entrance ramp.

The officers resumed their pursuit of the automobile south on Route 24 at speeds up to one hundred twenty miles an hour. Although the officers trailed at times by more than one thousand feet, they never lost sight of the automobile. After the chase had continued for about four miles on Route 24, the engine in the defendant’s automobile failed. It began emitting smoke and rolled to a stop in the breakdown lane of Route 24. The officers then arrested the defendant and his passenger, one Legaski. Both officers stated that at the time of the arrest, in the course of which the defendant was wounded, the defendant acted belligerently and menacingly. Investigation revealed that the defendant owned a gun and had a license to carry it.

[183]*183The defendant argues first that the above evidence was insufficient to sustain his conviction because, aside from the officers’ account of the incident, there was no evidence that either he or Legaski possessed or employed a gun on the night in question. He notes that none of the witnesses at trial testified that they had actually seen a gun in his or Legaski’s possession during the incident. No bulletholes or other material proof of the alleged shooting was ever produced by the Commonwealth. A postarrest search of the defendant’s automobile and its occupants and a search on the day after the incident of the route of the chase by thirty-five officers, some with metal detectors, failed to produce any trace of a gun, cartridges or casings. The defendant testified that on the night of his arrest mechanical problems in his engine had caused his automobile to produce repeated, loud backfires. He submits that the loud noises heard by the witnesses may have originated from that source, and that other testimony by the officers which indicated that shots had been fired from the defendant’s automobile was either imagined or fabricated.

The defendant also contends that even if the testimony supported the inference that the officers had been fired upon, there was no evidence which could sustain the defendant’s responsibility for the shooting. The officers’ testimony indicated that the alleged shots had been fired from the passenger side of the automobile, thereby implying that Legaski alone had done the shooting. The defendant maintains that he could not be held responsible as a principal for the shooting because there was no evidence of his intentional assistance of or participation in Legas-ki’s alleged conduct.

Having reviewed the evidence which was before the jury in a light most favorable to the Commonwealth, Commonwealth v. Sandler, 368 Mass. 729, 740 (1975), we hold that there was sufficient evidence to permit the jury’s verdict that the defendant was guilty of the offense. The officers’ testimony, if believed by the jury, was sufifi-[184]*184cient to support their finding that an occupant of the defendant’s automobile had fired a gun so as to create a reasonable apprehension by the officers of receiving an immediate battery. Commonwealth v. Johnson, 2 Mass. App. Ct. 877, 878 (1974). In passing on the defendant’s motions the judge need not have been convinced of the defendant’s guilt beyond a reasonable doubt. So long as there was competent evidence in support of all necessary elements of the offense, the weight and sufficiency of that evidence was properly left to the jury’s determination. Commonwealth v. Baron, 356 Mass. 362, 366 (1969).

Moreover, the evidence of the defendant’s flight and subsequent high speed chase was a sufficient basis for the jury’s inference that the defendant acquiesced and intentionally assisted in the firing of the gun. This inference in turn supported a finding that the defendant was guilty of the offense as a principal under a common enterprise theory. Commonwealth v. Medeiros, 354 Mass. 193, 198 (1968), cert. denied sub nom. Bernier v. Massachusetts, 393 U.S. 1058 (1969), and cases cited.

As we consider that the evidence was sufficient to support the jury’s verdict, we find no error in the judge’s denial of the defendant’s motions for a directed verdict and to set aside the verdict. Likewise, we find no error in the judge’s denial of the defendant’s motion for a new trial. A motion for a new trial is addressed to the judge’s discretion, Commonwealth v. Swanson, 5 Mass. App. Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Thomas
706 N.E.2d 669 (Massachusetts Supreme Judicial Court, 1999)
Commonwealth v. Huffman
414 N.E.2d 1032 (Massachusetts Appeals Court, 1981)
Commonwealth v. Kelley
392 N.E.2d 540 (Massachusetts Appeals Court, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
374 N.E.2d 323, 6 Mass. App. Ct. 180, 1978 Mass. App. LEXIS 570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-nardi-massappct-1978.