Commonwealth v. Apostolakos

The defendant was convicted on three indictments. Two charged armed robbery and one charged assault with a dangerous weapon. The indictments were tried with three others charging one Whalen, a codefendant, with similar offences. The trial was subject to G. L. c. 278, §§ 33A-33G. The sole questions brought here arise out of the defendant’s first assignment of error which challenges two rulings on evidence. The rulings were made in these circumstances. There was evidence that would warrant a finding that a tire iron was used in connection with one of the robberies; that this iron was taken from the defendant’s car by Whalen with the defendant’s consent; that after the robbery Whalen threw the iron into a canal; and that eighteen days after the robbery in question two tire irons (one of which was L-shaped and was similar to that taken from the defendant’s car by Whalen) were found in the canal. There was further evidence that the L-shaped iron was sent to the State police laboratory for analysis. Having testified to this fact, Officer Donoghue was asked (1) whether, of his own knowledge, any “hair follicles were lifted off” the tire iron, and (2) whether the paint residue found on the iron matched the paint on a car found near the scene of the robbery. Both questions were excluded. We lay to one side the fact that the record discloses that these rulings were excepted to only by counsel for Whalen. We assume, as the defendant suggests, that Whalen’s counsel was acting for both defendants. Nevertheless, we are satisfied that there was no error. The extent of cross-examination rests largely in the discretion of the trial judge. Commonwealth v. Beal, 314 Mass. 210, 229. The exclusion of this evidence reveals no abuse of discretion. We have examined the entire record and are satisfied that the challenged rulings were not prejudicial to the rights of the defendant.

Judgments affirmed.