8 Mass. App. Ct. 920

October 31, 1979

The defendant appeals from a conviction of armed robbery which, from the victim's testimony, occurred on November 21, 1977, at about 7:00 P.M. on the Boston Common "right next to the street lamp" where the victim was accosted by two women (one of whom she identified as the defendant) who threatened "to cut [her] up." She gave them her purse, and the defendant went through it, taking some jewelry and some money. The victim asked for her keys "because they were of no value to them," and the defendant returned them to her. The victim testified, "At that time I got to look at her very closely while I asked her for my keys." The victim resisted when the two women demanded a ring which had sentimental value, and the two assailants fled. She followed and saw them enter the Park Street subway station, where she encountered Officer Mulhern of the Massachusetts Bay Transportation Authority police force, to whom she related the episode. The following day she went to the M.B.T.A. police station and after perusing a book of about fifty or sixty photographs for about an hour, she informed Officer Mulhern that she had picked out two photographs of the defendant. (The book contained duplicate photographs of others.) She testified that: "I saw the two photographs pretty much right away, but I went through them again and again for about an hour, to be sure.

The defendant argued to the jury that the length of time before the victim announced she had made an identification cast doubt on its reliability. After the judge's charge the defendant asked that the judge further instruct the jury to "consider . . . whether or not her taking an hour to look at the photographs in the police station has affected the weight of her in-court identification." Though we see nothing in the original charge which required the judge to do so, he responded with an additional instruction that the jury "consider . . . the observations there at the police station, the length of time that was involved, and the particular care which she used in perusing through the book." We do not believe that the phrase "particular care," upon which the defendant fastens, in context and in relation to the whole transcript, which we have examined, excluded from consideration by the jury (as the defendant argues) the inference that the victim's hesitation indicated uncertainty rather than a conscientious abundance of caution. Thus Commonwealth v. Courtney, 7 Mass. App. Ct. 4 , 6-7 (1979), is not apposite. See Commonwealth v. Therrien, 371 Mass. 203 , 206 (1976).

Judgment affirmed.


8 Mass. App. Ct. 920

October 31, 1979

The plaintiffs

Page 921

appeal (G. L. c. 150C, Section 16) from a Superior Court judgment denying the plaintiff's application to vacate an arbitrator's award and confirming the award. The sole issue before us is whether the arbitrator exceeded his powers in awarding counsel fees to the defendant after finding that the school committee had violated the parties' collective bargaining agreement. The arbitrator characterized the award of counsel fees as an unusual remedy, but appropriate in this case because the legal fees incurred by the defendant were attributable solely to the inaction of the committee and its failure to offer a valid reason for its inaction. We conclude that the arbitrator exceeded his authority in making the award of counsel fees, since, as the court held in Doherty v. School Comm. of Boston, 363 Mass. 885 (1973), "[c]ounsel fees are not a proper element of damage," citing Chartrand v. Riley, 354 Mass. 242 (1968). Cf. Bournewood Hosp., Inc. v. Massachusetts Commn. Against Discrimination, 371 Mass. 303 , 311-313 (1976); Floors, Inc. v. B.G. Danis of New England, Inc., 7 Mass. App. Ct. 356 , 357, further appellate review granted, 378 Mass. 799 (1979). Here, as in Doherty, there is no provision, express or implied, for payment of counsel fees either in the agreement which contained the provision for arbitration or in c. 150C, Section 9. That statute provides that "[u]nless otherwise provided in the agreement to arbitrate, the arbitrator's expenses and fees, together with other expenses, except counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award" (emphasis supplied). Other arguments asserted by the defendant have no applicability to the instant case. The judgment is to be modified in accordance with this opinion and, as so modified, is affirmed.

So ordered.


[Note 1] City of Boston and mayor of Boston.