9 Mass. App. Ct. 901

April 16, 1980

The defendant appeals from a conviction on an indictment charging assault and battery by means of a dangerous weapon. (He was found not guilty on an indictment charging assault with intent to murder the same victim.)

We pass the question whether the defendant has properly preserved his appellate rights because we conclude that there was no error. This case is controlled in all material aspects by Commonwealth v. Mattias, 8 Mass. App. Ct. 786 , 791-792 (1979). See also Commonwealth v. Cepulonis, 7 Mass. App. Ct. 646 , 647-650 (1979).

All the defendant's claims on appeal center on the presentation by the prosecutor to the victim of a weapon (knife) marked for identification, but not admitted in evidence as an exhibit. The victim did testify, however: "I can't say it is the exact knife but it is similar." Even though it might have been more prudent for the Commonwealth to have avoided any use of the knife after the defendant's challenge to it, we think that it was probative of the fact that the victim had been assaulted and battered by means of a dangerous weapon. In balancing probative value against undue prejudice to the defendant, "courts afford considerable leeway to the discretion of the trial judge." Mattias, supra at 792. We find no abuse of that discretion on this record. See Commonwealth v. Rodrigues, 6 Mass. App. Ct. 925 (1978). Moreover, we note that the knife was not sent to the jury room with the exhibits, nor did the Commonwealth make any reference to it during closing argument.

In light of our conclusion that it was not error to display the knife to the jury or to allow the victim to comment on its similarity to the weapon used in the attack, we think that the judge properly handled this matter in his instructions by not mentioning it at all. We note in passing that the defendant made no request for additional instructions after the judge completed his charge to the jury. See Commonwealth v. Cullen, 8 Mass. App. Ct. 910 (1979), and cases cited.

Judgment affirmed.

Home MARGARET L. TIERNAN vs. CHARLES M. TIERNAN (and a companion case).

9 Mass. App. Ct. 901

April 17, 1980

1. The judge did not commit an error of law in accepting the court-appointed investigator's valuation of the corporate stock of the package store. See Assessors of Quincy v. Boston Consol. Gas. Co., 309 Mass. 60 , 72 (1941); Piemonte v. New Boston Garden Corp., 377 Mass. 719 , 731-732 (1979); Whaler Motor Inn, Inc. v. Parsons, 3 Mass. App. Ct. 662 , 675-676 (1975), S.C., 372 Mass. 620 (1977), S.C., sub nom. Whaler Motor Inn, Inc. v. Freedman, ante 884 (1980). The judge's finding of the fair market value of the marital home was supported by evidence

Page 902

and cannot be pronounced "clearly erroneous" within the meaning of Mass.R.Dom.Rel.P. 52(a) (1975). See First Natl. Bank v. Brink, 372 Mass. 257 , 263-264, 266 (1977). 2. A careful review of the judge's findings and awards in the light of the evidence reproduced in the appendix and the various factors listed in G. L. c. 208, Section 34 (as appearing in St. 1977, c. 467), leads to the conclusion that there was no abuse of the broad discretion committed to the judge under Section 34. See Bianco v. Bianco, 371 Mass. 420 , 423 (1976); Rice v. Rice, 372 Mass. 398 , 400, 401, 402 (1977); Putnam v. Putnam, 5 Mass. App. Ct. 10 , 15, 17 (1977), S.C., 7 Mass. App. Ct. 672 (1979); Langerman v. Langerman, ante 495 (1980). 3. No question touching the validity of the order entered on November 2, 1979, was raised by either of the notices of appeal filed on June 5, 1979, which were directed solely to the judgments which had previously been entered on May 4, 1979. Compare Synthetic Materials Corp. v. Maciel, 8 Mass. App. Ct. 943 , 944-945 (1979). Paragraph 10 of both amended judgments is to be modified so as to give the husband appropriate credit for each of the monthly mortgage payments he may have made in accordance with the order of November 2, 1979, together with interest on each such payment from the date of the same at the rate of twelve per cent per annum, and, as so modified, both judgments are affirmed, with double costs. G. L. c. 211A, Section 15. Mass.R.A.P. 25, as amended effective January 15, 1979, 376 Mass. 949 .

So ordered.