1 Mass. App. Ct. 803

January 24, 1973

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, Sections 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.


1 Mass. App. Ct. 803

February 5, 1973

As there had been no agreement under G. L. c. 152, Section 6 (as amended through St. 1953, c. 314, Section 6) nor any previous determination of liability under G. L. c. 152, Section 8, the employee could not rest on the fact of payments theretofore

Page 804

voluntarily made by the insurer (Morse's Case, 345 Mass. 776 [point 1]) but had the burden of proof (Nouses's Case, 326 Mass. 797) that (1) his incapacitating hernia condition (if he had such) at the time of the hearing before the single member (2) was causally related (see Spalla's Case, 320 Mass. 416, 418; Sulham's Case, 337 Mass. 586, 589) to the incident of August 10, 1966, as the result of which he claimed to have sustained (3) a compensable (a) injury or (b) aggravation of preemployment injury (see Fabrizio's Case, 274 Mass. 352, 354). The decision of the single member authorizing the insurer to discontinue compensation as of April 11, 1968, was affirmed and adopted by the reviewing board. Dr. Ridder's report on the employee's preemployment hernias was relevant to and admissible on all three issues. There was no error in the reviewing board's denial of the employee's motions with respect to the appointment of an impartial expert (G. L. c. 152, Section 9, as amended) or in the Superior Court's refusal to recommit the case to the board for the same purpose, particularly in light of the fact that the affidavit submitted to the court failed to suggest any new medical evidence. O'Neil's Case, 262 Mass. 266, 268. As it did not appear that the employee had even made a request of the board for an opportunity to be heard on causally related incapacity during the period following April 11, 1968, an opportunity expressly reserved to him by the decision of the board (see Dimitropoulos's Case, 343 Mass. 341, 344), he cannot fault the Superior Court for refusing to recommit the case for consideration of that possible issue. The decree of the Superior Court is to be modified by the insertion of a provision to the effect that dismissal of the claim for compensation on and after April 11, 1968, is without prejudice to the rights reserved to the employee under the concluding three paragraphs of the single member's decision and, as so modified, is affirmed.

So ordered.