1. There was no abuse of discretion in the trial judge's denial of the defendant's motion, made after the start of the trial, for a voir dire relative to the procedures by which the victims Georgilas and Huckvale identified the defendant. The defendant had been warned by the motions judge to resolve any question concerning identification procedures before the trial started; furthermore, as the trial judge observed, the ample testimony at the trial concerning the identification procedures employed by the police contained no suggestion that those procedures were in any manner improper or suggestive. See Commonwealth v. Flaherty, 1 Mass. App. Ct. 282 , 289 (1973); Commonwealth v. Dominico, 1 Mass. App. Ct. 693 , 718-719 (1974), and cases cited. The assignments of error based on exceptions to the admission of identification testimony are without merit for the same reasons. 2. It lay within the discretion of the trial judge to permit evidence on redirect examination which the defendant contends went beyond the scope of the matters raised on cross-examination. Commonwealth v. Barnes, 2 Mass. App. Ct. 357 , 362 (1974). 3. We need not pass on the defendant's contention that Georgilas's testimony had been impeached on cross-examination as a recent fabrication, and thus that the Commonwealth could have introduced in evidence any prior consistent statements which Georgilas might have made to Sergeant Marculaitis. See Commonwealth v. Zukoski, 370 Mass. 23 , 27 (1976), and cases cited. The judge's explanation to the jury as to why the Commonwealth could not have introduced Marculaitis's testimony was put on an entirely different basis, and it is inconceivable that the jury could have drawn the inference that the defendant suggests. 4. The portion of the judge's charge which is said to have suggested to the jury the judge's personal belief in the guilt of the defendant does not, read in the context of the entire charge, carry such a meaning. Judgments affirmed.
The defendant was indicted for assault with a dangerous weapon and rape. At trial the person named as the victim in both indictments testified that she had submitted to the defendant's advances because he had threatened her with a knife. The jury convicted the defendant of rape but acquitted him on the indictment for assault. He has appealed (G. L. c. 278, Sections 33A-33H) from the denial of his motion for a new trial on the indictment for rape, claiming that he is entitled to a new trial on that indictment by reason of an inconsistency between the jury's verdicts
on the two indictments. There was no error. 1. It is settled under our law that an inconsistency in a jury's interpretation of the evidence offered in support of two indictments does not require a new trial of the one indictment on which the defendant is convicted. Commonwealth v. McCarthy, 348 Mass. 7 , 14 (1964). Commonwealth v. Scott, 355 Mass. 471 , 475 (1969). Commonwealth v. White, 363 Mass. 682 , 684-685 (1973), and cases cited. A different result is reached when conviction on both indictments is a legal impossibility. See Commonwealth v. Haskins, 128 Mass. 60 , 61 (1880); Commonwealth v. Carson, 349 Mass. 430 , 434-436 (1965). 2. It is not argued that the judge abused his discretion in denying the motion.
Order denying motion for new trial affirmed.