Home MICHAEL P. BORRELLI vs. PERSONNEL ADMINISTRATOR OF THE DIVISION OF PERSONNEL ADMINISTRATION & others.

6 Mass. App. Ct. 881

May 12, 1978

The plaintiff's appeal must be dismissed as premature because the action has not been disposed of so far as it relates to the defendant board of selectmen and there has been no express determination of the type contemplated by Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974). Caldwell v. Collier, 5 Mass. App. Ct. 903 (1977). However, we see no harm in expressing our opinion that all the questions raised by the motion of the other defendants for summary judgment were properly decided for the reasons given by the judge in the memorandum of decision filed by her in connection with her order allowing that motion.

Appeal dismissed.

Home COMMONWEALTH vs. FRANCIS E. DUNN.

6 Mass. App. Ct. 881

May 16, 1978

The sole ground of the motion for a new trial was one which concededly could have been assigned as error and argued when the defendant appealed from the convictions which were affirmed in Commonwealth v. Dunn, 3 Mass. App. Ct. 708 , further appellate review denied, 367 Mass. 912 (1975). Accordingly, the trial judge did not abuse his discretion in simply denying the motion without a hearing and without ruling on the question sought to be raised by the motion. Commonwealth v. McLaughlin, 364 Mass. 211 , 229-231 (1973). Commonwealth v. Cresta, ante 855 (1978). If we were required to consider the question, we would conclude that it is devoid of merit.

Exceptions overruled.

Home COMMONWEALTH vs. LEON NOLET.

6 Mass. App. Ct. 881

May 23, 1978

1. It is manifestly clear from a review of the entire record that there was ample evidence which warranted the jury's guilty verdict on each indictment. Compare Commonwealth v. Derby, 263 Mass. 39 , 43-45 (1928); Commonwealth v. Corcoran, 332 Mass. 615 , 616-617 (1955). Consequently, there was no error in the denial of the defendant's motion for directed verdicts. See Commonwealth v. Hollis, 170 Mass. 433 , 436 (1898). See generally Commonwealth v. Sandler, 368 Mass. 729 , 740 (1975), and cases cited. 2. The judge did not err in allowing the victim to testify on redirect examination as to what she had answered when the doctor who examined her after the incident asked "whether or not this man [i.e. the defendant] had had sexual intercourse with you?" Her answer ("He didn't get that far") was admissible. See Glover v. Callahan, 299 Mass. 55 , 57-58 (1937). As she had been asked on cross-examination

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whether she had told "the doctor that you were sexually molested," the question and answer were within the limits of proper redirect examination. See Commonwealth v. Spikes, 360 Mass. 441 , 442-443 (1971). Cf. Commonwealth v. Juliano, 358 Mass. 465 , 468-469 (1970). See generally McCormick, Evidence Section 32, at 64 (2d ed. 1972). We thus do not have to reach the issue whether the testimony was also admissible under the doctrine of fresh complaint. See Commonwealth v. Bailey, 370 Mass. 388 , 391-397 (1976). 3. We do not discuss any of the other aspects of the defendant's challenge to the victim's testimony (e.g., that it was sympathy eliciting), as it should be as readily apparent to the defendant as it is to us that the arguments are frivolous. 4. We do not consider the defendant's other assignments of error, as they have not been argued on appeal. See Rule 1 : 13 of the Appeals Court, as amended effective February 27, 1975, 3 Mass. App. Ct. 801 . 5. The appeal with respect to indictment No. 76-4027 has been waived.

Judgments on indictments Nos. 76-4028 and 76-4029 affirmed.

Appeals on indictments Nos. 76-4026 and 76-4027 dismissed.