6 Mass. App. Ct. 849

February 22, 1978

The defendant appeals from convictions after a jury trial for robbery (two counts) and assault and battery. Despite their struggles, the defendant successively seized the handbags of two young women at night on a "well-lit" street and injured one of the victims with a blow to her head. The defendant fled pursued by a police officer attracted to the scene by the screams of the victims. A few minutes thereafter the police found the defendant hiding under a van on a nearby street. Within ten minutes of the robbery both victims positively identified the defendant as their assailant as he was standing on the street with the police. Their identification of the defendant at trial was supplemented by that of the officer who had pursued him. 1. There was no abuse of discretion on the part of the judge in his refusal to stop the trial in the middle of testimony to permit defense counsel to search three reels of tape (each with two sides) for the purpose of playing to the jury four allegedly inconsistent statements made by the victims at a probable cause hearing a year earlier, no effort having been made in the interim to have relevant portions of the tapes transcribed in more manageable form. See Commonwealth v. Wilson, 360 Mass. 557 (1971). The judge listened to the statements and on the following day permitted defense counsel to read two of them to the jury for impeachment purposes, having found the other two not to be inconsistent with the victims' testimony at trial. Defense counsel had ample opportunity to cross examine both victims on all aspects of the case. 2. The two statements which the judge excluded related to the victims' description of the defendant as given to the police on the night of the crimes. There was no clear showing that the police on that night had asked the victims for a description of their assailant's clothing. At trial they testified that he wore a shirt with a flowered pattern. Even assuming that these statements may have been to a degree inconsistent with the description given by the victims at trial, the attempted introduction of the statements was addressed to credibility rather than to substance. Commonwealth v. Morgan, 369 Mass. 332 , 339-340 (1975), cert. denied, 427 U.S. 905 (1976). The exclusion of those statements was, in any event, harmless beyond a reasonable doubt in light of the other compelling evidence establishing the defendant's guilt. See Commonwealth v. Anderson, 3 Mass. App. Ct. 463 , 466-467 (1975), cert. denied, 424 U.S. 926 (1976); Commonwealth v. Morgan, supra at 339-341; Commonwealth v. Grieco, 5 Mass. App. Ct. 350 , 359 (1977).

Judgments affirmed.


6 Mass. App. Ct. 849

March 2, 1978

It was an abuse of discretion for the trial judge to deny the defendant's motion to vacate the judgment which had been entered after his default and without notice to him or his attorney of the hearing on the assessment of damages. Assuming, without deciding, that the request by the defendant's

Page 850

attorney to the plaintiff's attorney for an extension of time to file an answer did not constitute an appearance within the meaning of Mass.R.Civ.P. 55(b)(2), 365 Mass. 822 (1974), [Note 1] nevertheless the plaintiff had no "right" to have the crucial hearing on damages proceed without notice to the defendant (10 Wright & Miller, Federal Practice and Procedure Section 2685 [1973], and cases cited; 6 Moore's Federal Practice par. 55.05[2] [2d ed. 1976]), and it would have been a sounder exercise of discretion for the judge to have required such notice upon being apprised of the fact that the defendant's attorney was known and had expressed the intention of defending the suit. When that questionable exercise of discretion is coupled with the facts that (1) the evidence presented at the hearing on damages plainly did not warrant a judgment in the amount rendered, and (2) the uncontradicted representations (see Farley v. Sprague, 374 Mass. 419 , 423-425 [1978]) made by the defendant in support of his motion to vacate judgment strongly suggest that that judgment will operate with harshness totally disproportionate to the wrong, if any, suffered by the plaintiff, we think that the denial of the motion to vacate judgment should not be permitted to stand. The judgment is vacated, and the case is remanded to the Superior Court for a new hearing on the assessment of damages before a different judge of that court and for such other proceedings, if any, as, in the opinion of that judge, justice and equity may require.

So ordered.


[Note 1] Cases decided under the counterpart Federal rule (Fed.R.Civ.P. 55[b][2]) which hold notice to be required in this situation notwithstanding the defaulting party's failure to file an appearance or a pleading include Hutton v. Fisher, 359 F.2d 913, 915-916 (3d Cir. 1966); H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689 (D.C. Cir. 1970), and cases cited at 691-692. Contrast Port-Wide Container Co. v. Interstate Maintenance Corp., 440 F.2d 1195 (3d Cir. 1971), where, however, notice had in fact been sent to the defaulter, and the record indicated that the award of damages was neither harsh nor excessive.