Home FRAMINGHAM FIRE FIGHTERS LOCAL 1652, IAFF, AFL-CIO & another vs. TOWN OF FRAMINGHAM & others.

2 Mass. App. Ct. 899

December 11, 1974

The plaintiffs brought this bill for declaratory and injunctive relief to establish that a pay raise voted at a town meeting in April, 1973, became effective as of January 1, 1973, in accordance with the asserted requirement of section four of the personnel by-law adopted pursuant to G. L. c. 41, Section 108C, notwithstanding the adoption by the town, as part of the measure providing for the pay raise, of a further provision that the raise should become effective "as of 1 January 1973 or on the date as set forth in the respective collective bargaining agreements whichever is later." When this suit was commenced on May 22, 1973, such collective bargaining agreements between the plaintiffs and the town had not been signed, and the defendants were refusing to pay the firemen and policemen at the raised rates. The Superior Court sustained the position of the town, and the plaintiffs appealed; but before the appeal was heard, collective bargaining agreements were signed under which the firemen and policemen were to be paid at the raised rates retroactive to January 1, 1973. The conflict between the effective date provision voted at the town meeting and that in the personnel by-law is now of no practical moment. They refer to the same date. The policemen and firemen have been paid at the raised rates retroactive to that date. The case is therefore moot. No effect will be given to an agreement or stipulation by the parties that the right to appeal and the status of the appeal shall not be affected by the fact that the case has become moot. Sullivan v. Secretary of the Commonwealth, 233 Mass. 543 , 546 (1919). The final decree is to be modified so as to dismiss the bill, not on the merits, but on the ground that the questions raised have become moot and, as so modified, it is affirmed.

So ordered.

Home COMMONWEALTH vs. WILLIE GIVENS, JR.

2 Mass. App. Ct. 899

December 11, 1974

The defendant was tried to a jury under G. L. c. 278, Sections 33A-33H, and

Page 900

convicted upon an indictment charging him with unlawful distribution of a controlled substance (heroin). There was evidence that the defendant sold a "half spoon" to a State police officer in the role of an undercover agent. The latter's testimony made no mention of a faint mustache shown in two photographs of the defendant taken by the police at the time of his arrest a week after the alleged sale. The defendant assigns as error the exclusion of the photographs which were offered by the defendant for the purpose of impeaching the credibility of the officer who had described the person he identified as the defendant as "Colored male; six, four (6'4''); heavy build; straggly goatee." The officer's description contained no reference to the defendant's having or not having a mustache at the time of the sale. Questioned with respect to whether the defendant had a mustache at the time of the arrest, the officer replied that he could not recall. There was no error. The photographs could not have accomplished the purpose for which they were offered since the officer at no time testified whether the defendant did or did not have a mustache. Their exclusion was within the discretion of the judge. Wilcox v. Forbes, 173 Mass. 63 , 64-65 (1899). Commonwealth v. Bjorkman, 364 Mass. 297 , 302-303 (1973). Assuming that there were error in the exclusion of the photographs, it would have been harmless in view of the substantial evidence of the defendant's guilt including the otherwise accurate description of the defendant given by the officer, and the defendant's ample opportunity to cross-examine him. Commonwealth v. Sherman, 294 Mass. 379 , 389 (1936). Commonwealth v. Wilson, 357 Mass. 49 , 59-60 (1970), cert. den. 400 U.S. 823 (1970). See Commonwealth v. Min Sing, 202 Mass. 121 , 130 (1909); Commonwealth v. Smith, 342 Mass. 180 , 187-188 (1961). Nor was there error in the refusal of the judge to instruct the jury as requested by the defendant in regard to the officer's identification testimony. The charge on that point was adequate and the judge was not required to instruct in language requested by the defendant. Commonwealth v. Nassar, 354 Mass. 249 , 264-265 (1968), cert. den. 393 U.S. 1039 (1969). Commonwealth v. Martin, 357 Mass. 190 , 193-194 (1970). The defendant's requested instructions in effect called upon the judge to comment on the weight to be given to the identification testimony. His instructions properly left the weight of the testimony to the jury. Commonwealth v. Geraway, 355 Mass. 433 , 440 (1969), cert. den. 396 U.S. 911 (1969). Lamoureux v. Commonwealth, 362 Mass. 880 (1972).

Judgment affirmed.