Home COMMONWEALTH vs. DAVID SMITH.

400 Mass. 1002

June 3, 1987

Brownlow M. Speer, Committee for Public Counsel Services, for the defendant.

Marcy Cass, Assistant District Attorney, for the Commonwealth.

On application of the Commonwealth, we granted further appellate review of the instant case. Commonwealth v. Smith, 21 Mass. App. Ct. 619 (1986). Because the defendant conceded that he was at the scene of the crime, the issue raised is whether it was error to admit a sanitized police photograph taken approximately one year prior to the defendant's arrest for the current offense. The Appeals Court concluded that the admission of the photograph was error because it suggested that the defendant had a criminal record, and the judge had excluded the defendant's record. See id. at 622-623. We agree with the reasoning and result of the Appeals Court. On the issue of whether there was sufficient evidence of armed robbery, we also agree with the Appeals Court. Id. at 623-624.

The judgment of the Superior Court is reversed, the verdict set aside, and the case remanded for a new trial.

So ordered.

Home DOROTHY L. CONNOLLY vs. OWEN F. CONNOLLY.

400 Mass. 1002

June 3, 1987

Bernard Glazier for the plaintiff.

Michael D. Parker (Michael J. O'Connor, III, with him) for the defendant.

In January, 1985, the marriage of Owen and Dorothy Connolly was dissolved by the entry of a judgment of divorce nisi. The judgment was accompanied by an award of alimony to the wife and a property division. The wife appealed the judgment to the Appeals Court, which summarily remanded the case to the Probate Court to reconsider the settlement. Connolly v. Connolly, 22 Mass. App. Ct. 1110 (1986). We granted the defendant's application for further appellate review.

The gravamen of the wife's appeal is that the financial settlement is inequitable because the judge's factual findings are inaccurate. The wife claims, for example, that the judge miscalculated the husband's annual income, overassessed the value of their house, distorted the contributions of each spouse to the marriage, and was misinformed about the source of money in her savings account. The wife's arguments must be rejected because she has not satisfied her evidentiary burden and, as such, these

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claims are nothing more than mere allegations.

The judge, as required, held a hearing at which both parties presented evidence pertaining to the potential alimony award and property division. The judge's reported findings tracked the criteria set forth in G. L. c. 208, Section 34 (1984 ed.). In the absence of a transcript, as here, we assume that those findings are adequately supported. Doten v. Doten, 395 Mass. 135 , 141 (1985). We shall not reverse a judge's factual findings unless they are clearly erroneous. Fox Tree v. Harte-Hanks Communications, Inc., 398 Mass. 845 , 847 (1986). In order to review factual findings, we must have a record of all the evidence which was before the judge. The wife here has the burden of producing that evidence either by providing a transcript of that hearing, Mass. R. A. P. 8 (b), as amended through 388 Mass. 1106 (1983), or a statement of the evidence pursuant to Mass. R. A. P. 8 (c), as appearing in 378 Mass. 924 (1979). She has not complied with either of these rules. Therefore we are unable to assess whether the judge's findings of fact are clearly erroneous. The judgment of the Probate and Family Court Department is affirmed.

So ordered.