COMMONWEALTH v. STRICKLAND, 11 Mass. App. Ct. 928 (1981)

415 N.E.2d 886

Appeals Court of Massachusetts.
February 3, 1981.

The defendant appeals from convictions on indictments charging (1) breaking and entering in the daytime with intent to commit a felony and putting persons lawfully therein in fear, G.L.c. 266, § 17, and (2) armed robbery, G.L.c. 265, § 17. A third indictment was placed on file with the defendant’s consent, and no appeal has been claimed as to it. The sole issue on appeal concerns a statement volunteered by a police witness in the course of direct examination leading up to his testimony which described the showing of an album from which the defendant’s picture had been selected by a victim. The witness, with no question before him, blurted out: “I received information from a reliable informant.” No motion to strike was made, and the statement was allowed to stand over the defendant’s objection. See Commonwealth v Welosky, 276 Mass. 398, 417 (1931), cert. denied, 284 U.S. 684
(1932); Commonwealth v. Early, 349 Mass. 636, 637 (1965). There was no error.

An unresponsive answer by a witness need not be struck if the evidence contained therein is both competent and relevant Commonwealth v. McGarty, 323 Mass. 435, 439-440 (1948) Commonwealth v. Taylor, 327 Mass. 641, 649 (1951) Commonwealth v. Tucker, 2 Mass. App. Ct. 328, 331 (1974). The instant answer, while of slight value, was admissible as a statement of fact relevant to account for the victim’s having been shown about 2,000 photographs, with negative results Commonwealth v. Sepulveda, 6 Mass. App. Ct. 868 (1978) State v. Murphy, 309 So.2d 134, 135 (La. 1975). Contras Favre v. Henderson, 464 F.2d 359, 361-362 (5th Cir. 1972).

Judgments affirmed.

John C. Ottenberg for the defendant.

Carol Anne Fagan, Legal Assistant to the District Attorney (Kevin Connelly, Assistant District Attorney, with her) for the Commonwealth.