|
16 Mass. App. Ct. 901
<br />opinimn.
<br />endling or having a gun in hand, but car -
<br />Commonwealth v. Morrissey, 351 Mas.
<br />ver found on the person of a defendant
<br />permit an inference of carrying in Com -
<br />751, 758 (1988), cert. denied, 385 U.S.
<br />nwealeh v. Dunphy, 377 Mas. 453, 455
<br />a holster and had walked a few feet with
<br />mmonwealth v. Samaras, 10 Mass. App.
<br />In defendant's back pocket as he stood in
<br />11 he had walked on the way to his car);
<br />11 Mass. App. Ct. 780, 780-781 (1981)
<br />re defenda
<br />nt was drinking at a bar and
<br />oor several times). Compare Common -
<br />App. Ct. 140, 140-141 (1979) (defendant
<br />I
<br />a tree and moving further behind the
<br />ns, 9 Mas. App. Ct. 23, 25 (1980) (it was
<br />when defendant placed firearm under his
<br />and back). Contrast Commonwealth
<br />(1977) (weapon found in defendant's
<br />the judge correctly charged that they
<br />'ed the weapon on his person, "[t]hat is,
<br />and that the jury were to be satisfied
<br />t thedant had more than just tem -
<br />It therefore, not necessary for the
<br />as the defendant requested, that "the
<br />d not warrent a finding that the statute
<br />Judgment affirmed.
<br />Attorney, for the Commonwealth.
<br />P. Acntar. September 15, 1983. Prac-
<br />'ons and confessions.
<br />a conviction of larceny of a motor vehicle
<br />that the trial judge erred in conducting in
<br />examination regarding the admissibilf-
<br />e affirm the conviction.
<br />object to the presence of the jury during the
<br />determine whether there is a'substantial
<br />justice has occurred.' Commonwealth v.
<br />)]. We would reverse only a showing of
<br />v. Tavares, 385 Mas. 140, 149 (1982).
<br />r dire examination of a police officer
<br />y that the defendant had been given
<br />16 Mus. App. Ct. 901
<br />Beacmpt elpinim
<br />BM
<br />Mi nda warnings, both verbally and in writing, and had agreed that he
<br />unde ood his rights, prior to making incrfmina�ng statements. There
<br />was no ggestion by defense counsel, in his requfst or thereafter, that the
<br />confew ad been coerced or otherwise impJoperly induced. Nor did
<br />defense co 1 argue or suggest (except perk* by the nature of his quer.
<br />tions) that efendant lacked the capacii# to make a knowing and in-
<br />telligent waiverf his rights. No tesdmofy was elicited during the voir
<br />dire or at any o r time during the trial which demonstrated that the
<br />defendant's staterne might have been made involuntarily or after in-
<br />adequate or misund Miranda Warnings. In fact, the candor of the
<br />confession was stressed defense qo/unsel, who relied exclusively on the
<br />confession in closing ar nt to efemoastrate that the defendant did not
<br />have the requisite intent to ty of larceny.
<br />Y
<br />While conduct of a voir a within the hearings of the jury with
<br />respect to the voluntariness ofa fesion is not appropriate, there is no
<br />constitutional requirement /"(hat voluntariness hearings must be held
<br />outside the presence of thej4ry, regar es of the circumstances." Pinto v.
<br />Pierce, 389 U.S. 31, 32 ()967). See Co w
<br />monealth v. Polidoro, 4 Mass.
<br />App. CL 794 (1976). In'tthe circumsta of this case, we find that there
<br />is no "substantial likelihood that a miscarriage of justice has occurred" as
<br />a result of the jury's,presence during the v ' dire. Commonwealth v.
<br />Garcia, supra.
<br />The defendant also asserts that he was demi a specific Wiling by the
<br />trial judge on the voluntariness of the confession However, the record
<br />dors not disclose that a request for such a ruling made. Moreover,
<br />"[w]here, as i7 the present case, the evidence presented at the voir dire is
<br />not conflicting and does not raise any question of cru kal coercion, the
<br />judge's decision to admit the defendant's statements ma his conclusions
<br />as to voluntariness 'clearly evident from the record.' J v. Denno,
<br />1378 U.S.'368, 378-379 (1966)1". Commonwealth v. Brady, 380 Mas.
<br />44, 52 980).
<br />Judgment a h.
<br />R rd Zorza for the defendant.
<br />J h C. McGinn, Assistant District Attorney, for the Common -
<br />w th.
<br />CEoacE W. S®Ea & another' w. Zonrxc Bo sao of Arprwrs os WEu.-
<br />rufz h others.' September 16, 1983. Zoning, Lot size, Frontage, Ex-
<br />emption.
<br />-The plaintiffs brought this action seeking (1) judicial review of a de-
<br />cision by the zoning board of appeals of Welfleet (board), and (2) a de-
<br />r Roberta H. Sieber.
<br />'The Wellfleet inspector of buildings, Daniel C. Sullivan, Barbara L. Sullivan,
<br />and the town of We[M d.
<br />
|