Opinion
January 24, 1973.
The case was submitted on briefs.
Klari Neuwelt for the defendant.
John T. Gaffney, Assistant District Attorney ( James M. McDonough with him) for the Commonwealth.
The defendant was indicted for assault and battery by means of a dangerous weapon and for armed robbery, tried under the provisions of G.L.c. 278, §§ 33A-33G, and convicted. The cases are here on an assignment of errors, only one of which is briefed and argued. Error is alleged in the admission of two small photographs, in color, of the victim as he appeared four days after the assault. The defendant contends that these photographs were not relevant to the issue on trial and only served to inflame the jury and prejudice them against the defendant. The defendant held up the victim, a sixty-nine year old man, with a gun, tore his wallet containing about $90 from a pocket in the victim's clothing and was pistol whipping the victim when he was seized and held by a passer-by. Moments later the defendant was turned over to the police. The photographs were relevant on the issue of assault and battery by means of a dangerous weapon. Whether such evidence was so inflammatory as to outweigh its probative value was a question to be determined by the trial judge in the sound exercise of his discretion. Commonwealth v. D'Agostino, 344 Mass. 276, 279. In the light of the overwhelming evidence of guilt, we cannot perceive how these photographs could have so inflamed the jury as to have affected their verdict. There was no error.
Judgments affirmed.