8 Mass. App. Ct. 878

July 11, 1979

The defendant has appealed from his conviction of rape and has argued two assignments of error. There was no error.

1. After a number of questions had been put to a police officer during cross-examination by the defendant's counsel concerning the place at which the victim had met the defendant and whether those premises were licensed for the sale of liquor, counsel asked the officer, "And this liquor license would have been obtained through the liquor commission?" The prosecuting attorney's objection on the ground of "materiality" was sustained. While how far the cross-examination of a witness may be relevant to the issue on trial must be left largely to the discretion of the trial judge (Commonwealth v. Nassar, 351 Mass. 37, 43-44 [1966]), the defendant had had the indulgence of that discretion until he asked the question to which exception was taken. Compare Commonwealth v. Mott, 5 Mass. App. Ct. 811 (1977). Whatever relevance the answer to that query might have had to the issue on trial was so attenuated that there was no abuse of discretion in its exclusion.

2. After the admission in evidence of two photographs which bore the date on which the defendant had been booked on the rape charge and which tended to disprove the defendant's statement that he had never worn a flowered shirt of the type he was said to have been wearing at the time of the crime, the defendant was asked by the prosecutor, "Tell the judge and the jury when that picture was taken." The defendant's counsel objected to the prosecutor's refusal to show the photographs to the defendant in order that he could "know what picture you're talking about." When one reads the three pages of transcript immediately preceding the one on which the quoted question appears, it becomes obvious that the defendant had not only seen the photographs but was quite eager to inform the court when they had been taken. Immediately after his counsel's objection was overruled, the defendant testified that the photographs had been taken when he was fifteen years old. (He was seventeen at the time of the crime.) We regard this assignment as totally devoid of merit.

Judgment affirmed.


8 Mass. App. Ct. 878

July 13, 1979

This is an action for medical malpractice in which the plaintiff, Katrin Cooper, seeks to recover for injuries she suffered as a result of the defendant's alleged negligent medical diagnosis. The other plaintiff, Katrin's husband, seeks recovery of medical expenses he has incurred and for loss of consortium. A jury returned verdicts in favor of the

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defendant. The plaintiffs have appealed from the judgment entered in the Superior Court, claiming that the trial judge erred in not permitting the plaintiffs' expert witness to testify to certain matters and that portions of the judge's charge to the jury were improper.

1. Although the plaintiffs' medical expert, Dr. Berkowitz, was allowed to testify, the judge excluded some of his testimony on two grounds. Contrast Venini v. Dias, 5 Mass. App. Ct. 695, 698-699 (1977). We need address here only the ground that, as a general practitioner, he was not qualified to give an opinion as to the effects earlier hospitalization would have had on the course of Katrin's illness. (E.g., "Do you have an opinion . . . as to whether or not the course that did develop . . . was causally related to the fact that the patient was not hospitalized at that time?") "The rule is well established that whether a person called as an expert has the necessary qualifications to testify is a preliminary question to be decided by the trial judge; and his decision is conclusive, unless it appears on the evidence to have been erroneous as matter of law." Guinan v. Boston Elev. Ry., 267 Mass. 526, 527 (1929). Campbell v. Thornton, 368 Mass. 528, 541 (1975). Contrast Ambrose's Case, 335 Mass. 121, 125 (1956).

Within the broad scope of his discretion the judge could properly determine that "Dr. Berkowitz's career as a general practitioner would not qualify him to express the opinions" sought by plaintiffs' counsel (compare DeJesus v. Hamel, 349 Mass. 764 [1965]) and thus that he lacked a proper basis, in terms of adequate information and preparation, to render an opinion as to the effects earlier hospitalization would have had on her illness. See Louise Caroline Nursing Home, Inc. v. Dix Constr. Corp., 362 Mass. 306, 309 (1972). Contrast Commonwealth v. Banuchi, 335 Mass. 649, 654-655 (1957).

2. The plaintiffs further argue that the introductory portion of the judge's charge to the jury was unduly prejudicial, as it improperly raised for the jury's consideration the question of the potential consequences of the jury's action on the defendant's personal life. In deciding whether the judge committed reversible error "a charge is to be tested on the reading of the charge as a whole and not by a consideration of any fragment of it which may be open to criticism." Haven v. Brimfield, 345 Mass. 529, 533 (1963). See Ruch v. Wheeler, 354 Mass. 776 (1968). Although the remarks would have been better left unsaid, our reading of the entire charge convinces us that the plaintiffs were not unduly prejudiced by the judge's comment. The remark occurred at the very beginning of the charge and it gave no indication of any bias on the part of judge. More importantly, we note that the judge continued his charge with a fair and accurate statement of the law as well as the responsibilities of the jury. We think that any prejudicial effect created by the remark was clearly overcome by the rest of the charge. "A reading of the entire charge convinces us that it was a sound statement of the law not to be disturbed by a strained reading of the fragment to which the plaintiffs call our attention." Linhares v. Hall, 357 Mass. 209, 210 (1970).

Judgment affirmed.