9 Mass. App. Ct. 839

February 5, 1980

If we assume that the record discloses an "actual controversy" within the meaning of G. L. c. 231A, Section 1, as to whether the Commissioner is obliged to afford the plaintiff an "adjudicatory" (see G. L. c. 30A, Section 1 [1] and [3]) or other type of hearing prior to making any determination under the first sentence of the second paragraph of G. L. c. 255C, Section 6 (inserted by St. 1964, c. 727, Section 1), to release to the public any information which has been obtained from the plaintiff and which is subject to Section 6, we must conclude that the controversy is academic (see Commissioner of the Dept. of Community Affairs v. Medford Housing Authy., 363 Mass. 826 , 832 [1973]), and consequently that the plaintiff lacks standing to pursue it. See Massachusetts Assn. of Independent Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290 , 292-293 (1977). The reason for our conclusion is that there is nothing in the record to suggest that the Commissioner had disclosed or authorized the disclosure of any such information or that he intends to make or authorize any such disclosure in the future. The judgment is vacated, and a new judgment is to be entered which dismisses the action.

So ordered.


9 Mass. App. Ct. 839

February 5, 1980

The defendant was convicted on an indictment charging unarmed robbery (G. L. c. 265, Section 19) and appeals.

Page 840

1. It was not error to admit in evidence the postarrest statements of the defendant. Compare Commonwealth v. Williams, 378 Mass. 217 , 226-227 (1979). After receiving full and fair Miranda warnings (about which there is no dispute), the defendant was asked if he understood his rights. He replied "Yes," and added "something to the effect that he had been around." When asked a short time later if he wanted to tell about the incident at the scene of the alleged offense, the defendant denied that he was present, claimed he had no knowledge of the incident, and added that "he had a lawyer in Rhode Island that would take care of the whole matter." In response to another question the defendant then made the admissions he sought to suppress at trial. "[I]f the record demonstrates that a defendant has been clearly and accurately told of the Miranda rights and that he has affirmatively acknowledged his understanding of those rights, a knowing and intelligent waiver of those rights may be inferred, in circumstances not otherwise casting doubt on voluntary waiver [footnote omitted], from his proceeding to answer questions without asking for a lawyer." Commonwealth v. Johnson, 3 Mass. App. Ct. 226 , 229-231 (1975), and cases cited. See Commonwealth v. Monteririo, 4 Mass. App. Ct. 349 , 351 (1976). Compare Commonwealth v. Santo, 375 Mass. 299 , 305 (1978); Commonwealth v. Richmond, 379 Mass. 557 , 559-560 (1980). Contrast Commonwealth v. Dustin, 373 Mass. 612 , 614-616 (1977).

This is not a case where the defendant requested counsel or was already represented by counsel. Compare the majority and dissenting opinions in Commonwealth v. Brant, 8 Mass. App. Ct. 558 (1979), further appellate review granted, 379 Mass. 927 (1980).

2. As to the defendant's contention that the judge should have instructed the jury on "the lesser included offense of assault and battery" even though he failed to request such an instruction, we think what we said in Commonwealth v. Simon, 6 Mass. App. Ct. 894 , 895 (1978), and cases cited therein, fully controls the present case. See also Commonwealth v. Johnson, 379 Mass. 177 , 181-182 (1979). We note in passing that the codefendant did make such a request.

Judgment affirmed.