Home COMMONWEALTH vs. ROBERT P. LEAVY.

369 Mass. 963

January 2, 1976

The defendant was convicted of rape and appeals pursuant to G. L. c. 278, Sections 33A-33G. His sole assignment of error relates to the introduction of "fresh complaint" testimony by the victim's mother and by a Massachusetts State police officer. Because this issue is not properly before us, we affirm the judgment of the Superior Court. Briefly, the jury could have found the following: The victim was taken to a secluded house and was raped by the defendant and others. She returned home after the incident, at nearly 5 A.M., in a hysterical and disheveled condition. She related what had occurred to her mother and later to a State police officer. At trial, the testimony of both the mother and the officer, as to both the fact of the complaint and the details, was admitted. No objection or exception was taken to the admission of this evidence. We have often stated that, "[i]n a case tried subject to G. L. c. 278, Sections 33A-33G, an assignment of error not based on an exception brings nothing to this court for review." Commonwealth v. Myers, 356 Mass. 343 , 346 (1969), and cases cited. Accord, Commonwealth v. McLeod, 367 Mass. 500 , 501-502 (1975); Commonwealth v. Concepcion, 362 Mass. 653 , 654 (1972). The justification for this rule is amply set out in Commonwealth v. Foley, 358 Mass. 233 , 236 (1970), and need not be repeated here. It is only in the rare case, where "there is a substantial risk of a miscarriage of justice," Commonwealth v. Freeman, 352 Mass. 556 , 564 (1967), that we will depart from this rule. Commonwealth v. Concepcion, supra. Commonwealth v. Foley, supra. We have reviewed the entire record and conclude that there is no such substantial risk in this case.

Judgment affirmed.

Home PILGRIM CO-OPERATIVE BANK vs. COMMISSIONER OF BANKS & another. [Note 1]

369 Mass. 963

January 2, 1976

These are appeals from a dismissal with prejudice ordered by a Superior Court judge of a complaint seeking review under G. L. c. 30A, the State Administrative Procedure Act, and a complaint seeking declaratory relief under G. L. c. 231A. Both actions alleged error in that the defendant Commissioner of Banks granted the petition of the defendant Quincy Co-operative Bank for authority to establish and operate a branch office in the town of Cohasset. After actual notice to the plaintiff and other banks and persons, the Commissioner held a hearing at which numerous banks and individuals were represented. The plaintiff bank and defendant bank were permitted to file briefs consisting of documentary evidence and arguments on the merits of the petition. Thereafter the Commissioner granted the petition and the plaintiff commenced the two actions which are here on appeal. A copy of the record of the proceedings before the Commissioner, including the briefs received

Page 964

by her at the hearing, is before us. There was no error. The complaints under G. L. c. 30A and G. L. c. 231A must be dismissed because the Commissioner's decision is not subject to judicial review. Compare G. L. c. 170, Section 12, with G. L. c. 172, Section 11 (a). First Nat'l Bank v. Board of Bank Incorporation, 361 Mass. 381 , 382-383 (1972). City Bank & Trust Co. v. Board of Bank Incorporation, 346 Mass. 29 , 32 (1963). Natick Trust Co. v. Board of Bank Incorporation, 337 Mass. 615 , 616-617 (1958). Cf. Johnson Prods. Inc. v. City Council of Medford, 353 Mass. 540 , 545, appeal dismissed and cert. denied, 392 U.S. 296 (1968); Springfield Hotel Ass'n v. Alcoholic Beverages Control Comm'n, 338 Mass. 699 , 701-702 (1959); Hayeck v. Metropolitan Dist. Comm'n, 335 Mass. 372 (1957). See also Camp v. Pitts, 411 U.S. 138, 140-142 (1973) (per curiam); First Nat'l Bank v. First Fed. Sav. & Loan Ass'n, 225 F.2d 33, 36 (D.C. Cir. 1955) (alternative holding). The case of South Shore Nat'l Bank v. Board of Bank Incorporation, 351 Mass. 363 (1966), relied on by the plaintiff, is distinguishable by reason of the peculiar issues which were there presented for review. Further, there is no merit to the plaintiff's contention that a denial of judicial review is a violation of its right to due process of law. See Newton v. Joyce, 166 Mass. 83 , 84 (1896); Reetz v. Michigan, 188 U.S. 505, 507-508 (1903); Studna v. United States, 225 F. Supp. 973, 981 (W.D. Mo. 1964); United States v. Wiley's Cove Ranch, 181 F. Supp. 371, 380 (W.D. Ark. 1960), aff'd 295 F.2d 436, 439-441 (8th Cir. 1961); 1 Am. Jur. 2d Administrative Law Sections 155, 557-558, 568 (1962). Cf. Lindsey v. Normet, 405 U.S. 56, 77 (1972).

Judgments affirmed.


FOOTNOTES

[Note 1] The Quincy Co-operative Bank.