Home COMMONWEALTH vs. DONALD KELLEY (and three companion cases [Note 1]).

4 Mass. App. Ct. 867

December 29, 1976

The defendants appeal pursuant to G. L. c. 278, Sections 33A-33G, from their convictions of rape and of kidnapping. (They were found not guilty of assault by means of a dangerous weapon.) There was no error. 1. Relative to the victim's emotional behavior during the trial and while she remained in court as a spectator, the record does not disclose any abuse of discretion in the judge's refusals (a) to exclude the victim from the court room, see Commonwealth v. Senati, 3 Mass. App. Ct. 304 , 307-308 (1975), (b) to order a psychiatric examination of her, Commonwealth v. Fillippini, 1 Mass. App. Ct. 606 , 608-609 (1973), and (c) to declare a mistrial, Commonwealth v. Senati, supra, at 308. See Annot., 46 A.L.R. 2d 949 (1956). The defendants did not contend below that the victim's conduct amounted to testimony as to which they had a right of cross-examination, and they are precluded from making that contention on appeal. Milton v. Civil Serv. Commn. 365 Mass. 368 , 379 (1974). 2. The judge did not err in admitting a record of a prior conviction of Kelley under G. L. c. 233, Section 21. The use of such evidence was not unconstitutional on its face or as applied. For the reasons stated in Commonwealth v. DiMarzo, 364 Mass. 669 , 678-679 (1974), (Hennessey, J., concurring opinion) there was no error. The judge's finding that the defendant had been represented by counsel at the time of the conviction was warranted on the record before us. 3. We have examined each of the five assignments of error based on exceptions taken to evidentiary rulings and have discerned no error. A separate discussion of them would add nothing to the jurisprudence of this Commonwealth. 4. At the conclusion of the evidence the defendants renewed and excepted to the denials of their motions for directed verdicts. Based on those exceptions the defendants have assigned as error the judge's failure to grant directed verdicts or a mistrial after the verdicts were returned. In support of that contention the defendants argue in this court that the verdicts were inconsistent. No mention of any such contention was made to the judge upon receipt of the verdicts or at any time thereafter. An attempt such as this to distort an exception not only avails the defendants nothing, it is improper.

Judgments affirmed.


[Note 1] Two of the companion cases are against John Dolbeare.


4 Mass. App. Ct. 867

December 29, 1976

The insurer in this workmen's compensation case appealed from a judgment entered in the Superior Court awarding compensation to the claimant for disability

Page 868

arising out of injuries received on March 27, 1967, while the claimant was employed as a waitress. The sole issue before us is the insurer's claim that the judge erred in denying its request for a third recommittal to the reviewing board for purposes of further hearing so as to afford the insurer an opportunity to cross-examine the claimant relative to her allegedly prior inconsistent testimony, given at an earlier hearing in an unrelated claim for workmen's compensation benefits. The instant case had been recommitted by two different Superior Court judges. The appeal before us is from the judgment entered after the single member and reviewing board had acted pursuant to the second recommittal. Our standard of review is too clear to be repeated. See Hachadourian's Case, 340 Mass. 81 , 85 (1959), and cases cited; Trani's Case, ante, 857 (1976). There was no error. The single member's findings of December 17, 1974, indicate full compliance with the second recommittal order "to make a finding after consideration of the claimant's sworn testimony" in the other case. The reviewing board upon consideration of all the evidence affirmed and adopted the further findings and decision of the single member. There is nothing in the record to indicate that the insurer had not been given an opportunity to cross-examine the claimant on the subject in question. Accordingly, there was no abuse of discretion in refusing to recommit this matter for a third time.

Judgment affirmed.