Commonwealth v. Rodriquez

Massachusetts Appeals Court

Commonwealth v. Rodriquez

409 N.E.2d 1330, 10 Mass. App. Ct. 899, 1980 Mass. App. LEXIS 1333

DecidedSeptember 23, 1980

StatusPublished

This text of 409 N.E.2d 1330 (Commonwealth v. Rodriquez) 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. Rodriquez, 409 N.E.2d 1330, 10 Mass. App. Ct. 899, 1980 Mass. App. LEXIS 1333 (Mass. Ct. App. 1980).

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Opinion

The defendant appeals from his convictions of carrying a firearm (handgun) without being properly licensed and of assault with a dangerous weapon. The defendant claims that the trial judge erred in denying his two motions for a mistrial made during the cross-examination of the defendant. There was no error.

We do not condone the tendentious nature of the questions asked by the prosecutor or the manner in which they were asked (compare Commonwealth v. White, 367 Mass. 280, 284 [1975]); however, the decision whether to declare a mistrial in such circumstances is within the discretion of the trial judge. See Commonwealth v. Sandler, 368 Mass. 729, 735 (1975).

Passing the question whether the defendant’s negative answers to the prosecutor’s questions could have prejudiced him, we think that the judge’s instructions with regard to the three challenged questions were sufficient to cure any potential harm to the defendant. “The decision to use a corrective instruction rather than to allow the defendant’s motionfs] for a mistrial was within the judge’s discretion.” Commonwealth v. Rogers, 8 Mass. App. Ct. 646, 651 (1979). That discretion was not abused. See Commonwealth v. Paradiso, 368 Mass. 205, 210 (1975).

The defendant relies heavily on Commonwealth v. Key, 381 Mass. 19, 28-30 (1980). We find nothing in that case which would require us to change our view of the instant case.

Judgments affirmed.

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The defendant appeals from his convictions of carrying a firearm (handgun) without being properly licensed and of assault with a dangerous weapon. The defendant claims that the trial judge erred in denying his two motions for a mistrial made during the cross-examination of the defendant. There was no error.

We do not condone the tendentious nature of the questions asked by the prosecutor or the manner in which they were asked (compare Commonwealth v. White, 367 Mass. 280, 284 [1975]); however, the decision whether to declare a mistrial in such circumstances is within the discretion of the trial judge. See Commonwealth v. Sandler, 368 Mass. 729, 735 (1975).

Passing the question whether the defendant’s negative answers to the prosecutor’s questions could have prejudiced him, we think that the judge’s instructions with regard to the three challenged questions were sufficient to cure any potential harm to the defendant. “The decision to use a corrective instruction rather than to allow the defendant’s motionfs] for a mistrial was within the judge’s discretion.” Commonwealth v. Rogers, 8 Mass. App. Ct. 646, 651 (1979). That discretion was not abused. See Commonwealth v. Paradiso, 368 Mass. 205, 210 (1975).

The defendant relies heavily on Commonwealth v. Key, 381 Mass. 19, 28-30 (1980). We find nothing in that case which would require us to change our view of the instant case.

Judgments affirmed.

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Bluebook (online)

409 N.E.2d 1330, 10 Mass. App. Ct. 899, 1980 Mass. App. LEXIS 1333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-rodriquez-massappct-1980.

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