COMMONWEALTH vs. JOSEPH LACEY (and two companion cases ).

COMMONWEALTH vs. JOSEPH LACEY (and two companion cases [Note 1]).

2 Mass. App. Ct. 889

November 11, 1974

The defendants Lacey, Branch and Jackson, having been jointly tried and convicted of armed robbery, appeal under G. L. c. 278, Sections 33A-33G. 1. On cross-examination of Lacey the prosecutor was permitted to read the record of a prior conviction of Lacey, thereby informing the jury not only of the conviction but also of the original (and more serious) charge on which he was not convicted. That practice was approved in Commonwealth v. Connolly, 356 Mass. 617 , 626-627 (1970), cert. den. 400 U.S. 843 (1970). There was no error. 2. Although the prosecutor on several occasions mistakenly stated the basis of Lacey's prior conviction (i.e., to the effect that Lacey had pleaded guilty to the lesser charge, whereas he actually had been found guilty), this mistake was subsequently corrected before the jury and was therefore not prejudicial. The judge acted properly and within his discretion in permitting the question as to the prior conviction to be rephrased correctly in its entirety after repeated objections. 3. No prejudice sufficient to constitute reversible error is shown in connection with the cryptic testimony concerning Branch's relationship with "First, Incorporated." There was no testimony that "First, Incorporated" was a drug rehabilitation center, and even if the jury possessed independent knowledge of that fact, there was no testimony explaining Branch's connection with the center. As the testimony on the subject was so vague that it may not reasonably be assumed that the jury might have drawn an inference of prior criminal activity, we conclude that there was no prejudicial error. See Commonwealth v. Vanetzian, 350 Mass. 491 , 494-495 (1966), and Commonwealth v. Ransom, 358 Mass. 580 , 585-587 (1971). 4. The defendants' assignments relating to testimony by defense witnesses as to their failure to testify at the prior District Court hearing are not based upon exceptions, and consequently bring nothing before us for review. Commonwealth v. Foley, 358 Mass. 233 , 236 (1970). 5. No defendant requested the judge to charge the jury with respect to lesser included offenses, and no exceptions were taken to the judge's charge as given. The defendants' assignments therefore have no standing. Commonwealth v. LaBella, 364 Mass. 550 , 554 (1974). Commonwealth v. Balthazar, 366 Mass. 298 , 302-303 (1974). 6. The defendants ask us to exercise our power to review these assignments of error, notwithstanding the absence of exceptions, to prevent a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556 , 563-564 (1967), and Commonwealth v. Concepcion, 362 Mass. 653 , 654

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(1972). Our review of the case persuades us that such a risk is not present here.

Judgments affirmed.

FOOTNOTES

[Note 1] Commonwealth vs. Michael L. Branch; Commonwealth vs. Arthur J. Jackson.