The defendants, Bottiglio and O'Connell, were convicted under indictments charging armed robbery and kidnapping at a trial which was subject to the provisions of G.L.c. 278, §§ 33A-33G. Both appealed.
The indictments arose out of the robbery of one Richard Ward, a vending machine serviceman, on February 22, 1966, in Charlestown. Ward testified that while taking cases of cigarettes from the rear of a truck, he heard someone say, "don't move." That person, whom he identified in court as the defendant O'Connell, at gunpoint ordered him to lie down inside the truck. The defendant Bottiglio got out of a car backed two car lengths away and got into the truck and drove it away. He drove to Chestnut Street in Somerville where the defendants removed from the truck the cigarettes and cash that Ward had collected, and placed them in a car that had pulled up behind the truck. Since neither defendant wore a face covering, and the lighting inside the truck was good, Ward had sufficient opportunity to observe the defendants throughout the period of about twenty-five minutes during which the robbery took place. After the defendants departed, Ward drove to the first place that was open and called the police. Officer Baird of the Somerville police arrived, and Ward gave him a description of the men. At police headquarters he selected a photograph of the defendant O'Connell out of some seven or eight racks containing twenty or thirty pictures in a rack. The following morning Ward was called to a lineup at the Somerville police station and identified the two defendants.
Officer Baird corroborated Ward's testimony describing his participation in the events immediately following the robbery. He further testified that on the day following the robbery he went to the Lynn police station about 7 A.M. and proceeded with other policemen to a room on the second floor of an apartment house on Western Avenue in Lynn, which they had determined was occupied by O'Connell. The manager gave them a key to that room. Baird knocked on the door; no one answered. One of the officers used the key to enter. They found the defendants asleep, woke
Both defendants took the stand. O'Connell testified that he had spent the entire day of February 22 in Lynn with Bottiglio at Kenny's Cafe. Bottiglio also testified that he was at Kenny's Cafe on February 22 with O'Connell. Both defendants denied participation in the robbery.
At the commencement of the trial the defendants moved to suppress evidence obtained from the pre-trial identification that occurred while the defendants were in the custody of the police. A voir dire hearing was held on the motions. The judge denied the motions, and ruled that the lineup was proper, the out-of-court identifications admissible, and in any case, that Ward's in-court identification of the defendants was independent of the lineup identification. The defendants do not now contest that ruling, but argue that Baird's testimony was inadmissible as the fruit of an illegal arrest, and that the judge erred in permitting certain comments by the prosecutor in his closing argument, and in admitting certain evidence which, it is argued, was not relevant.
1. At the close of Officer Baird's testimony the defendant Bottiglio moved to strike his testimony "on the grounds of illegal entry and illegal arrest." This contention had not been made during the hearing on the motions to suppress. Nor was objection made to Baird's testimony when first offered during the trial. Furthermore, the motions did not specify objections to any particular portions of Baird's testimony, but were directed to all of it. The motions were denied and Bottiglio excepted. The Commonwealth argues that the motions were rightly denied because they were lacking in specificity and included evidence that was competent as well as evidence alleged to be incompetent. We are of opinion that this contention must be sustained.
3. The defendants complain that they were prejudiced by the introduction of evidence of their marital status. Specifically, the prosecutor elicited from the defendant Bottiglio that he had been married nineteen years and had three children but did not live with his wife. In the case of the defendant O'Connell it was brought out that he was divorced and living apart from his wife on the day of the
4. Two police officers, Baird and one Gleason, were permitted to testify, over objection and exception, that prior to the robbery they had seen the defendants at various times together at Donovan's Cafe either at a table or at the bar. The relevancy of this evidence is slight, but it had some tendency to show that the defendants knew each other and were frequently together. While this evidence might have been excluded, we cannot say that its admission was prejudicial error.
5. In his closing argument the prosecutor referred to the defendants as "people like these sitting around hatching up jobs." At the conclusion of the argument counsel for Bottiglio excepted to the remark. This statement might well have been left unsaid, but we are not prepared to say that it was so prejudicial as to call for reversal. See Commonwealth v. Smith, 342 Mass. 180, 188. As we observed in that case it is not every impropriety that occurs in a trial that requires reversal. The test is, quoting from People v. Kingston, 8 N.Y.2d 384, 387, "whether the claimed defect influenced the jury and tainted its verdict. If the record demonstrates that it did not, then, the defendant is not entitled to a second trial."