8 Mass. App. Ct. 882

July 16, 1979

This is an appeal by the plaintiff from the defendant board's denial of his application for a special permit to enable him, it seems (the application is not before us), to use his premises as a private club serving alcoholic beverages to members. A judge of the Superior Court remanded the case to the board for a decision setting forth in greater detail the reasons for its denial of the permit; another judge of the Superior Court then ruled, in essence, that the amended decision did not exceed the authority of the board. It is impossible for us to evaluate the plaintiff's contention that that ruling was erroneous on the portions of the record brought before us, which do not include the minutes of the meeting at which the board heard the application or either the board's original or amended statements of its reasons for the denial. Indeed, we lack the full text of the zoning by-law relative to the standards applicable to the granting of special permits. As to these critical omissions, see Kunen v. First Agricultural Natl. Bank, 6 Mass. App. Ct. 684 , 690-691 (1978). Looking at what is before us (the transcript of the Superior Court hearing and the judge's findings and decision), we find no showing by the plaintiff that the board's decision was based on a legally untenable ground or was unreasonable, capricious, or arbitrary. Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969). MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360-362 (1976). The transcript by itself does not bear out the plaintiff's further contention that the board based its denial of the special permit on ex parte communications from other town officials not brought to light at the public hearing. Compare Caruso v. Pastan, 1 Mass. App. Ct. 28 , 30-31 (1973), and cases cited.

Judgment affirmed.

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

8 Mass. App. Ct. 882

July 16, 1979

After their convictions of rape and kidnapping were affirmed on appeal, defendants' motions for further appellate review, petition for a writ of error, and motion for a new trial were all denied. This case is before us on the defendants' appeal from the denial of their motion for a new trial. Such motions are addressed to the sound discretion of the trial judge. Commonwealth v. Gagne, 367 Mass. 519 , 526 (1975). Commonwealth v. Nardi, 6 Mass. App. Ct. 180 , 184 (1978). "If however the original trial was infected with prejudicial constitutional error the judge has no discretion to deny a new trial." Earl v. Commonwealth, 356 Mass. 181 , 184 (1969). Commonwealth v. Lowe,

Page 883

5 Mass. App. Ct. 855 (1977). Here, there was no abuse of discretion in the denial of the defendants' motion and hence no error.

The defendants argue once again that an error of constitutional dimension occurred at their trial because of the use against Kelley, for impeachment purposes, of a prior conviction obtained when Kelley was not represented by counsel. That issue was originally considered by the trial judge. On appeal, this court held that "[t]he judge's finding that the defendant had been represented by counsel at the time of the conviction was warranted on the record before us." Commonwealth v. Kelley, 4 Mass. App. Ct. 867 (1976). The same issue was considered by a single justice of the Supreme Judicial Court in denying the defendants' petition for a writ of error. Donald Kelley and John Dolbeare vs. Commonwealth, Supreme Judicial Court for the county of Suffolk No. 77-214 (Civil 1977). On the motion for new trial, the court had before it both defendant Kelley's testimony that he had not been represented at the 1965 trial (his testimony to the contrary at the time of the present trial was attributed to confusion about the question he was answering) and a February 23, 1977, letter from the attorney who had filed an appearance in the 1965 trial, stating that he did not recall having represented Kelley. That letter, however, also noted that records of his work in 1965 had been destroyed in a fire. Under these circumstances, it cannot be said that the trial judge abused his discretion in denying the defendants' motion; the judge could properly rely on Kelley's trial testimony and the appearance filed by the attorney in concluding that Kelley had in fact been represented. Commonwealth v. Barrett, 3 Mass. App. Ct. 8 , 9 n.2. (1975).

Order denying motion for new trial affirmed.


[Note 1] Of the companion cases, one is by the Commonwealth against Donald Kelley and two are against John Dolbeare.