4 Mass. App. Ct. 797

March 26, 1976

This is an appeal under G. L. c. 40A, Section 21 (as in effect prior to St. 1975, c. 808, Section 3), from a decision of the board of appeal of the town of Wellesley which sustained the action of the building inspector of that town in issuing a building permit. A judge of the Superior Court voluntarily made "findings, rulings and order for decree," which he adopted as his report of material facts. A final decree was entered pursuant to that order on May 15, 1974, which in effect affirmed the board of appeal. The plaintiff has appealed from that decree. The decree was properly entered for the reasons stated by the judge in his findings and rulings.

Decree affirmed.


4 Mass. App. Ct. 797

March 29, 1976

The employee does not contend that the finding of the reviewing board (which adopted the decision of the single member) that the employee's disability was not caused by a new injury, but resulted exclusively from the original injury, is not supported by the evidence before the board. The record does not demonstrate abuse of discretion in the denials by the board and by the Superior Court of the employee's motions for recommittal and rehearing of the case in order that further evidence might be taken on that issue. Devine's Case, 236 Mass. 588, 595 (1921), and cases cited. Lopes's Case, 277 Mass. 581, 586 (1931). Decree affirmed.

Home COMMONWEALTH vs. RICHARD K. GORDON & another. [Note 1]

4 Mass. App. Ct. 797

March 30, 1976

In 1963, the defendants were convicted of larceny and conspiracy

Page 798

to commit larceny. See Commonwealth v. Kiernan, 348 Mass. 29 (1964). They appeal under G. L. c. 278, Sections 33A-33G, from the denial by a Superior Court judge of their joint motion for a new trial brought under G. L. c. 278, Section 29. It does not appear that they pressed their appeals from the denial of earlier motions for new trials in 1965 and in 1971. 1. A claim of newly discovered evidence formed the basis for the present motion. It was grounded upon an assertion of newly available evidence, the anticipated testimony of Joseph W. Monahan, Jr., (Monahan) who had been convicted of conspiracy and larceny in a related case. See Commonwealth v. Monahan, 349 Mass. 139 Mass. 139 (1965). The judge conducted a voir dire on the question of Monahan's availability to have testified at the defendants' trial and at the hearings on the earlier motions; and he received defense counsel's offers of proof of anticipated testimony on the merits of the present motion by Monahan and each of the defendants who had elected not to testify at their trial in 1963. Defense counsel conceded at voir dire that what Monahan knew at the time of the trial "is the same as that which he knows now"; and there was evidence from Monahan and the defendant Gordon to support the judge's conclusion that Monahan's anticipated testimony was available to the defendants prior to the date of the earlier motions and "more particularly" prior to the 1971 decision denying their second motion for a new trial. Defense counsel agreed that the remaining evidence, which was to be offered to complement Monahan's testimony, had either been presented or had been available to the defendants at the hearing on the 1971 motion. 2. The judge correctly declined to accept their suggestion that the exclusionary rule of Bruton v. United States, 391 U.S. 123 (1968) (barring the use at a joint trial of a codefendant's out-of-court confession inculpating the defendant), be extended to this case with respect to out-of-court statements of a coconspirator, Brady, inculpating the defendants. The defendants contend that this evidence, admitted against them at trial, abridged their right of confrontation under the Sixth Amendment to the United States Constitution. The Bruton case, decided after the defendants' trial, but prior to their second motion for a new trial, was given retroactive application in Roberts v. Russell, 392 U.S. 293 (1968). Brady's statements were admitted under a recognized exception to the hearsay rule accorded statements of coconspirators made in furtherance of a conspiracy. Commonwealth v. Beneficial Fin. Co. 360 Mass. 188, 222-223 (1971). See Commonwealth v. French, 357 Mass. 356, 372 (1970). Contrast Kiley v. Commonwealth, 358 Mass. 800 (1970). In Dutton v. Evans, 400 U.S. 74, 80, 87 (1970), the Supreme Court affirmed that the Bruton rule did not preclude the admission of such statements as exceptions to the hearsay rule. The defendants have made no claim that the statements were not "made both during the pendency of the cooperative effort and in furtherance of its goal." See Commonwealth v. Pleasant, 366 Mass. 100, 104 (1974). In the circumstances the defendants' further contention, that the court erred in refusing to consider the trial transcript in ruling on the motion for a new trial, is without merit.

Judgment affirmed.


[Note 1] Richard C. Simmers.