NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

15-P-50                                         Appeals Court

ROBERT J. ERICKSON  vs.  CLANCY REALTY TRUST & others.[1]

No. 15-P-50.

Barnstable.     November 12, 2015. – January 6, 2016.

Present:  Cohen, Grainger, & Wolohojian, JJ.

Way, Public:  discontinuance.  Estoppel.

Civil action commenced in the Superior Court Department on March 5, 2010.

The case was heard by Christopher J. Muse, J.

James B. Stinson for the plaintiff.

Harry R. Thomasson for the defendants.

GRAINGER J.  Plaintiff Robert J. Erickson appeals from a declaratory judgment in Superior Court finding that Old County Road (road) in Eastham was discontinued by a 1903 Superior Court decree pursuant to “An Act To Promote The Abolition Of Grade Crossings,” Chapter 428 of the Acts of 1890, as amended, St. 1891, c. 123 (act).  The defendants are abutters or nearby landowners in Eastham.  On appeal, the plaintiff argues that the road was not discontinued by the 1903 Superior Court decree and that it still operates as a public way.

1.  Background.  The facts are uncontested.  The plaintiff’s property is a parcel bounded on the northwest by the road, which extends from Route 6, a State highway, to an area past the plaintiff’s property.  The Cape Cod Rail Trail, formerly the New York, New Haven & Hartford Railroad (railroad), lies to the east of the plaintiff’s property, and to the south are parcels owned by the Sverids.  The plaintiff claims that the road is the only means of accessing his property; otherwise, it is landlocked.

The road was first laid out as a public way on June 19, 1721.  It is shown on various maps throughout the eighteenth and nineteenth centuries.  The path of the road crossed over to the eastern side of the railroad in Eastham, and crossed back to the western side of the railroad in Wellfleet — a total of two grade crossings.  In 1890, the act was passed to promote the abolition of such grade crossings and authorized the Superior Court, by decree, to confirm a recommendation by a neutral commission to extinguish a specified portion of an existing public way and to establish an alternate route that avoided any grade crossings.  See St. 1890, c. 428, § 4.  The parties agree that the commission’s report and a subsequent Superior Court decree[2] (decree) did so.

2.  Discussion.  The question presented is whether the road in its entirety, or only segments thereof, were discontinued.  The plaintiff argues that the language of the decree discontinued only portions of the road that actually crossed the railroad, leaving other portions as disconnected internal segments that terminated at each crossing.  The trial judge disagreed, and we review his decision as to questions of law, and questions of fact based entirely on documents, de novo.[3]  See Zaskey v. Whately, 61 Mass. App. Ct. 609, 614 (2004).

a.  The decree.  We look first to the language of the petition and the decree.  The petition is phrased in the disjunctive:  ”petitioners are of the opinion that it is necessary . . . that an alteration should be made in such crossings, in the approaches thereto, in the location of the public ways, or in the grades thereof” (emphasis supplied).  Such language shows that the petitioners contemplated, at least as one possibility, the alteration or discontinuance of only the grade crossings.

Turning to the act itself, it provides that if “any portion of an existing public way should be discontinued [the commission] shall so specify” (emphasis supplied).  St. 1890, c. 428, § 4.  Finally, the clear language of the decree specifies only that the grade crossings are discontinued:  “the county road where it crosses the location of the railroad at grade . . . [is] discontinued” (emphasis supplied).  Compare with Bliss v. Inhabitants of Attleborough, 200 Mass. 227, 231 (1908) (“The commissioners . . . expressly provided in their report for many discontinuances . . . [as seen in the] statement that ‘the way known as Starkey Avenue is hereby discontinued’”).  Further, the commission described the new highway to be a substitute “for the aforesaid crossings at grade,” and did not address the road in its entirety.  We conclude that the trial judge erred in declaring as a matter of law that the language of the decree expressly discontinued portions of the road other than the grade crossings.

As a general rule, in the absence of an express discontinuance, a road is not discontinued by implication.  “Once duly laid out, a public way continues to be such until legally discontinued.”  Carmel v. Baillargeon, 21 Mass. App. Ct. 426, 428 (1986), citing Preston v. Newton, 213 Mass. 483, 485 (1913).  The town of Eastham has undertaken no official action to discontinue the road, such as holding a public hearing.  See G. L. c. 82, § 21.

These conclusions, however, do not eliminate every possibility of discontinuation of the road as a whole.  We cannot simply ignore that the strict application of the express language of the decree creates surviving segments of disconnected road that run between the discontinued grade crossings, serving no apparent remaining use.  Our cases recognize that it is appropriate to rely on extrinsic evidence where a literal statutory construction yields an absurd or unworkable result.  See, e.g., North Shore Realty Trust v. Commonwealth, 434 Mass. 109, 112 (2001), quoting from Champigny v. Commonwealth, 422 Mass. 249, 251 (1996) (declining to “adopt a literal construction of a statute if the consequences of such construction are absurd or unreasonable”).  See Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 336 (1982) (literal meaning of statute relating to private school pupils’ right to public transport would require town to subsidize travel to any location in United States).

Moreover, the Supreme Judicial Court has recognized that even “without express words to that effect,” the creation of a substitute to an existing road, i.e., “an alteration of a way by the construction of it in a different place, where it will serve all the purposes for which it was designed or used,” will discontinue “that part of it not included in the new location.” Commonwealth v. Boston & Albany R.R., 150 Mass. 174, 176 (1889).  This language requires factual determinations, namely findings related to “all the purposes” for which the original road “was designed or used.”  Ibid.  Boston & Albany R.R. also recognizes the need for additional factual inquiry, namely, the effect of the contemplated discontinuance on adjacent landowners, landowners in the vicinity, and on the public.  Id. at 177.  This effect is to be measured at the time of the decree and not thereafter.  ”[W]hat occurred after the change was made [is] of little significance . . . .  These facts are competent only so far as they tend to show the nature and condition of the subject matter under consideration at the time the adjudication was made.”  Id. at 176.[4]

Factual determinations were not made here as a consequence of the judge’s reliance on the statutory language alone as sufficient to discontinue the entire road.  In light of our contrary reading, while confronted with the anomalous creation of freestanding sections of remaining road, we conclude that further proceedings are required to resolve the issue of discontinuation by implication.[5]

b.  Estoppel by deed.  We turn next to the defendants’ assertion that the doctrine of estoppel by deed bars the plaintiff from his claim in this action.  Estoppel by deed prevents an assertion of title to property previously assigned to another.  See Gibbs v. Thayer, 6 Cush. 30, 32-33 (1850).  We observe as an initial matter that the plaintiff acquired his property many decades after the decree of 1903.  See Makepeace Bros. v. Barnstable, 292 Mass. 518, 524 (1935) (“The respondent’s claim . . . is not strengthened by any theory of estoppel by deed, since the respondent was neither party nor privy to such deeds but is in the position of a stranger thereto”).  Neither the plaintiff nor his predecessors in title can properly be characterized as transferors in connection with the act and the decree.  Accordingly, the circumstances normally triggering the invocation of this principle are absent here.

However, the defendants point to a deed executed by the plaintiff in connection with his transfer of an adjoining parcel in 1979:

“NORTHWESTERLY by land of Joseph A. and Norman J. Poitras and by land of James T. and Gertrude A. Clancy, being the middle line of Old County Road, as formerly laid out, now discontinued,six hundred eighty-two and 74/100 (682.74) feet (emphasis supplied).

This language indisputably refers to the road as “now discontinued”; what is considerably less clear is whether the choice of words was intended as a conveyance of the plaintiff’s interest in a right of passage over the road, or is simply a reference to the road for purposes of metes and bounds, adding as a gratuitous description that it was discontinued.[6]

To the extent the defendants intend to press this issue on remand, the judge has discretion to consider evidence relevant thereto.  The judgment of the Superior Court is vacated, and the case is remanded for further proceedings in accordance with this opinion.

So ordered.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-11880

BEACON TOWERS CONDOMINIUM TRUST  vs.  GEORGE ALEX.

Suffolk.     October 5, 2015. – January 7, 2016.

Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Arbitration, Attorney’s fees.

Civil action commenced in the Superior Court Department on November 14, 2013.

The case was heard by Frances A. McIntyre, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

J. Mark Dickison (Ryan A. Ciporkin with him) for the defendant.

Mark A. Rosen for the plaintiff.

GANTS, C.J.  Under G. L. c. 251, § 10, attorney’s fees may not be awarded in arbitration proceedings “[u]nless otherwise provided in the agreement to arbitrate.”  The issue presented in this case is whether an arbitration panel applying the commercial arbitration rules of the American Arbitration Association (AAA rules), having found that the arbitration agreement did not authorize an award of attorney’s fees, nonetheless may award attorney’s fees based on its finding that “substantially all of the defenses were wholly insubstantial, frivolous and not advanced in good faith.”  The appellant, George Alex, contends that the arbitration panel may award attorney’s fees in these circumstances for either of two reasons:  first, because AAA rule 47(a) [1] authorizes an arbitrator to “grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties”; or second, because AAA rule 47(d)(ii) provides that an arbitrator may award attorney’s fees if “it is authorized by law,” and the award of attorney’s fees in these circumstances is authorized by G. L. c. 231, § 6F.  We conclude that an arbitrator lacks the authority to award attorney’s fees based on a finding that all the claims or defenses were wholly insubstantial, frivolous, and not advanced in good faith unless the parties have agreed that an arbitrator may award attorney’s fees in these circumstances.  We therefore affirm the Superior Court judge’s order vacating the arbitration panel’s award of attorney’s fees.

     Background.  The appellee, Beacon Towers Condominium Trust (trust), is the unit owners’ organization for the Beacon Towers Condominium (condominium), an entity created pursuant to G. L. c. 183A, § 17.  The condominium is comprised of three adjacent buildings in the Back Bay section of Boston, with the addresses of 479, 481, and 483 Beacon Street.  The board of trustees for the trust (trustees) is the governing body of the trust, responsible for operating, maintaining, and managing the common areas and facilities of the condominium and the business of the trust.  Alex was the owner of two units — one at 479 Beacon Street and one at 481 Beacon Street.

In 2010, there was a major electrical fire at 483 Beacon Street that caused substantial damage throughout the building, rendering it uninhabitable.  The other two buildings were not affected.  Under G. L. c. 183A, § 17, and the trust’s bylaw, the trustees were obligated to certify whether the fire damage exceeded ten per cent of the value of the condominium prior to undertaking any rebuilding.  If the damage exceeded ten per cent of the condominium’s value, the trustees were required under § 17 to submit their restoration plan to a vote and obtain the approval of seventy-five per cent of the unit owners before proceeding with the repairs.

The trustees undertook the repairs without certifying that the fire damage was less than ten per cent of the value of the condominium and without obtaining the approval of seventy-five per cent of the unit owners, and charged each unit owner his or her share of the costs in a special common expense assessment.  The trustees assessed Alex $ 62,995 for the two units that he owned.  Alex paid the assessment under protest.

The trust’s bylaw requires that disputes regarding any determination or action of the trustees be submitted to arbitration.  Alex commenced an arbitration action challenging the propriety of the trustees’ conduct regarding the fire damage repairs and the imposition of the assessment.  After a two-day arbitration, the arbitration panel found that the fire damage to the common areas and facilities exceeded ten per cent of the value of the condominium, and that the trustees committed a breach of their obligations under G. L. c. 183A, § 17, and the bylaw by restoring the common areas and facilities without a vote of the unit owners.  A majority of the panel declared that the special assessment against Alex was void and awarded him restitution of the amount he had already paid in special assessments.  A majority of the panel also awarded Alex attorney’s fees in the amount of $ 48,750.[2]  The majority recognized that “[t]he arbitration agreement here does not provide for an award of fees,” but reasoned that AAA rule 47(d)(ii) allows an award of fees where “authorized by law” and that G. L. c. 231, § 6F, authorizes an award of reasonable attorney’s fees where, as the majority determined in this case, substantially all of the defenses were wholly insubstantial, frivolous, and not advanced in good faith.

The trust filed suit in the Superior Court, claiming that the arbitrators’ award of attorney’s fees exceeded the scope of the parties’ arbitration agreement, and therefore was barred by G. L. c. 251, § 10.  A judge vacated the award of attorney’s fees, concluding that such an award is not authorized by G. L. c. 231, § 6F, when ordered by an arbitrator because § 6F does not authorize an arbitrator to award attorney’s fees.[3]  Alex now appeals from that order.  We transferred the case from the Appeals Court on our own motion.

Discussion.  ”[A]n arbitration award is subject to a narrow scope of review.”  Superadio Ltd. Partnership v. Winstar Radio Prods., LLC, 446 Mass. 330, 333 (2006) (Superadio).  We do not review an arbitration award for errors of law or errors of fact.  See Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990); Concerned Minority Educators of Worcester v. School Comm. of Worcester, 392 Mass. 184, 187 (1984).  As set forth in G. L. c. 251, § 12, we review an arbitration award only to determine whether it “was procured by corruption, fraud or other undue means,” whether the arbitrator was evidently partial, or whether the arbitrator exceeded the scope of his or her authority.  Superadio, supra at 334, quoting G. L. c. 251, § 12.  “An arbitrator exceeds his authority by granting relief beyond the scope of the arbitration agreement . . . by awarding relief beyond that to which the parties bound themselves . . . or by awarding relief prohibited by law.”  Superadio, supra, quoting Plymouth-Carver Regional Sch. Dist., supra.  The trust here contends that the arbitrators exceeded the scope of their authority for each of these reasons.

As a general rule, we have interpreted G. L. c. 251, § 10, to prohibit the award of attorney’s fees in arbitration proceedings unless the parties have entered into an agreement authorizing the award of such fees.  See Floors, Inc. v. B.G. Danis of New England, Inc., 380 Mass. 91, 91-92 (1980).[4]  However, we have previously recognized two circumstances where an arbitrator may award monetary sanctions such as attorney’s fees despite the broad prohibition contained in G. L. c. 251, § 10.

First, an arbitrator may award attorney’s fees where a party prevails on a statutory claim in which the statute mandates the recovery of attorney’s fees by the prevailing party.  See Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 673 (2002) (“We conclude that the directive that a prevailing party be awarded attorney’s fees under G. L. c. 93A, § 11, applies to arbitration awards of claims under § 11 despite the normal unavailability of attorney’s fees in arbitration”).  In such a situation, the statutory requirement that attorney’s fees be recovered “overrides the effect of G. L. c. 251, § 10.”  Id.

Second, in Superadio, 446 Mass. at 338-339, we held that where the parties agreed that their arbitration shall be governed by the AAA rules, an arbitrator could award monetary sanctions to a party for discovery violations and noncompliance with discovery orders.  We reasoned that AAA rule 23[5] authorized an arbitrator to direct the production of documents and other information, and “to resolve any disputes concerning the exchange of information.”  Id. at 338.  We concluded that the authority to award such sanctions for discovery violations and noncompliance with discovery orders was implicit in the authority granted to an arbitrator under this rule because “[t]o give arbitrators control over discovery and discovery disputes without the authority to impose monetary sanctions for discovery violations and noncompliance with appropriate discovery orders, would impede the arbitrators’ ability to adjudicate claims effectively in the manner contemplated by the arbitration process.”  Id. at 339.

Alex contends that his award of attorney’s fees may stand because the parties “otherwise agree[d]” to award counsel fees by incorporating the AAA rules, including AAA rule 47(a), which allows the arbitrator to “grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties,” and AAA rule 47(d)(ii), which permits an award of counsel fees where “authorized by law.”

We begin by addressing Alex’s argument that AAA rule 47(a) authorizes the award of attorney’s fees where the arbitration panel found that substantially all of the trust’s defenses were wholly insubstantial, frivolous, and not advanced in good faith.  Alex claims that, in awarding fees based on this finding, the arbitration panel was granting relief that it deemed “just and equitable,” as permitted under AAA rule 47(a).

There are two flaws in this argument.  First, AAA rule 47(a) contains two requirements for the granting of “any remedy or relief”:  the remedy or relief must be “just and equitable,” and it must be within the scope of the arbitration agreement.  Alex overlooks the second requirement, as he points to no provision of the parties’ agreement that authorizes the award of attorney’s fees.  Indeed, the arbitration panel determined, and we agree, that the trust’s bylaw contains no such provision.

In addressing this same argument, and likewise finding no agreement among the parties to award attorney’s fees, the court in Asturiana De Zinc Mktg., Inc. v. LaSalle Rolling Mills, Inc., 20 F. Supp. 2d 670, 675 (S.D.N.Y. 1998), quoting Matter of Arbitration Between Prudential-Bache Sec., Inc., & Depew, 814 F. Supp. 1081, 1083 (M.D. Fla. 1993) (Prudential-Bache), reasoned that “[t]he reference in the parties’ agreement to arbitration before the AAA is . . . not a sufficient contractual basis for an award of fees, because although AAA [rule 47(a)] allows arbitrators to grant ‘any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties,’ this [r]ule merely ‘refers back to the parties’ contract and limits the scope of the arbitrator[‘s] authority to the contract’s express terms.’”  See Prudential-Bache, supra at 1084 (under AAA rule 47[a], arbitrators may award attorney’s fees only where contract “includes an express authorization” [emphasis in original]).

Second, if AAA rule 47(a) were interpreted to permit an arbitrator to award attorney’s fees whenever it is “just and equitable,” no matter whether the parties agreed to such an award, the effect would be to render superfluous AAA rule 47(d)(ii), the more specific AAA rule governing the award of attorney’s fees.  AAA rule 47(d)(ii) states, “The award of the arbitrator(s) may include . . . an award of attorney’s fees if all parties have requested such an award or it is authorized by law or their arbitration agreement.”  An AAA rule, like a statute or regulation, must “be ‘construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous.’”  Wolfe v. Gormally, 440 Mass. 699, 704 (2004), quoting Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998).  Cf. Biogen IDEC MA, Inc. v. Treasurer & Receiver Gen., 454 Mass. 174, 190 (2009) (“Principles governing statutory construction and application also apply to regulations”).  Moreover, as with statutes and regulations, general language in the AAA rules “must yield to that which is more specific.”  See Silva v. Rent-A-Center, Inc., 454 Mass. 667, 671 (2009), quoting TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9, 18 (2000).  Under the AAA rules, rule 47(a) is the general rule setting forth the permissible scope of an arbitration award.  AAA rule 47(d)(ii) is the specific rule governing when an award may include attorney’s fees.

Alex contends that, just as we recognized an arbitrator’s authority in Superadio to award monetary sanctions for discovery violations and noncompliance with discovery orders, so should we recognize an arbitrator’s authority to award attorney’s fees where it is just and equitable because the defense was not made in good faith.  The key difference, however, lies in the AAA rules concerning the specific sanctions at issue:  the version of rule 23 at issue in Superadio, governing discovery, broadly authorized the arbitrator “to resolve any disputes concerning the exchange of information,” whereas rule 47(d)(ii) expressly limits the availability of attorney’s fees in arbitration awards, allowing fees only where they are requested by the parties or authorized by law or agreement.  In Superadio, 446 Mass. at 338-339, we emphasized the broad authority conferred by AAA rules 23 and 47(a),[6] reasoning that

“[n]oteworthy in these rules is the absence of any language limiting the means by which an arbitrator or arbitration panel may resolve discovery disputes, or language restricting the application of the broad remedial relief  of [AAA] rule [47](a) to final awards (and precluding the grant of broad remedial relief to interim awards).  The rules, construed together, and supported by the broad arbitration provision in the agreement and the absence of any limiting language prohibiting a monetary sanction for discovery violations, authorized the panel to resolve discovery dispute[s] by imposing monetary sanctions.”

AAA rule 47(d)(ii), in contrast, includes precisely such limiting language.  We cannot therefore import the reasoning of Superadio to this case, where a specific AAA rule exists restricting the availability of attorney’s fees.  Such reasoning would undermine the statutory purpose of G. L. c. 251, § 10, which is to prohibit arbitrators from awarding attorney’s fees unless the parties expressly agree otherwise.  We shall not infer such an agreement merely from the parties’ agreement to AAA rule 47(a), when the parties also agreed to AAA rule 47(d)(ii), which expressly limits when attorney’s fees may be awarded.  To do so would invite the risk that the parties unwittingly allowed the arbitrator to award attorney’s fees.  Where the parties have incorporated the AAA rules into their arbitration agreement, AAA rule 47(d)(ii) exclusively governs the scope of authority for awards of attorney’s fees.

We now turn to Alex’s argument that the arbitrators’ award of attorney’s fees was authorized by AAA rule 47(d)(ii) because it was “authorized by law,” specifically G. L. c. 231, § 6F, which allows a “court” to award attorney’s fees where “substantially all of the defenses . . . were wholly insubstantial, frivolous and not advanced in good faith.”  Section 6F is the statutory codification of the bad faith exception, recognized at common law, to the “American Rule” that counsel fees are not among the costs awarded to a successful litigant.  See Wong v. Luu, 472 Mass. 208, 215 (2015); Preferred Mut. Ins. Co. v. Gamache, 426 Mass. 93, 95 (1997).

An arbitrator, however, is not a “court” that may award attorney’s fees under § 6F.  General Laws c. 231, § 6E, supplies the definitions that apply to § 6F, and it defines “court” as “the supreme judicial court, the appeals court, the superior court, the land court, any probate court and any housing court, and any judge or justice thereof.”  The Legislature’s omission of the District Court and Boston Municipal Court suggests its intention to restrict the applicability of § 6F to proceedings in the specific courts that are enumerated.  See Tilman v. Brink, 74 Mass. App. Ct. 845, 852-854 (2009) (District Court cannot award attorney’s fees under § 6F because it is not included in statutory definition of “court” under § 6E).  See also Monahan Corp. N.V. v. Whitty, 319 F. Supp. 2d 227, 231 (D. Mass. 2004) (when Legislature limited application of § 6F to specific courts, it “said what it meant and meant what it said”).

Our review of the legislative history shows that the omission of the Boston Municipal Court and the District Court from the statutory definition of “court” in § 6E was not a legislative oversight, but the result of a deliberate legislative act.  The original version of the bill that eventually was enacted as § 6E originated in the House, and provided that the word “‘Court’ shall include the Supreme Judicial Court, the Appeals Court, the Superior Court, the Land Court, the Municipal Court of the City of Boston and any Probate Court, District Court and Housing Court, and any judge or justice thereof.”  1976 House Doc. No. 1315.  The Senate then amended the bill by, among other things, removing “the Municipal Court of the City of Boston” and “the District Court” from the definition of “court.”  See 1976 House J. 2733.  The House concurred in the Senate amendments, and this version of the bill was then adopted and signed by the Governor, enacting G. L. c. 231, §§ 6E-6G.  1976 House J. 2733.  See St. 1976, c. 233, § 1.  The removal of two of the trial court departments from the definition of “court” demonstrates the Legislature’s intention to limit the applicability of § 6F to cases in only some trial court departments.  Where the word “court” was not even meant to include all courts, it would be absurd for us to interpret the term even more broadly to include arbitrators.

Nor was it irrational for the Legislature to exclude arbitrators from the definition of “court” under § 6E and thereby, in the absence of agreement, deprive arbitrators of the authority to award attorney’s fees where substantially all of the claims or defenses “were wholly insubstantial, frivolous and not advanced in good faith.”  If the Legislature had granted arbitrators this authority, they potentially could exercise it without restraint, because an arbitrator’s finding that substantially all of a party’s claims or defenses “were wholly insubstantial, frivolous and not advanced in good faith” is a composite finding of fact and law that, absent fraud, is not subject to review by a court.  See Plymouth-Carver Regional Sch. Dist., 407 Mass. at 1007.

Conclusion.  The judgment of the Superior Court vacating the arbitrators’ award of attorney’s fees is affirmed.

So ordered.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

14-P-1108                                       Appeals Court

COMMONWEALTH  vs.  MICHAEL UBILEZ.

No. 14-P-1108.

Middlesex.     October 7, 2015. – January 7, 2016.

Present:  Katzmann, Rubin, & Wolohojian, JJ.

Constitutional Law, Search and seizure, Probable cause.  Search and Seizure, Motor vehicle, Probable cause, Search incident to lawful arrest, Inevitable discovery.  Probable Cause.  Motor Vehicle, Registration, Operation.  Receiving Stolen Goods.

Complaint received and sworn to in the Woburn Division of the District Court Department on January 8, 2010.

A pretrial motion to suppress evidence was heard by Paul M. Yee, J., and the case was tried before Timothy H. Gailey, J.

J. Gregory Batten for the defendant.

David Bastian, Assistant District Attorney, for the Commonwealth.

WOLOHOJIAN, J.  At issue is the search of a vehicle driven by the defendant, which was reported to contain a stolen cellular telephone (cell phone).  The defendant makes two arguments on appeal with respect to the search.  First, he contends that the police did not have probable cause to believe he had committed a crime at the moment he was arrested and therefore there was no valid search incident to that arrest.  The two crimes at issue are operating a motor vehicle with a suspended registration and receiving stolen property with a value exceeding $ 250.  Second, he argues that the inevitable discovery exception does not apply.

Because we conclude that the inevitable discovery exception applies, we need not consider whether the search was also justified as incident to the defendant’s arrest.  However, because there is a split of opinion among trial court decisions and the issue has not been addressed by the appellate courts, we address whether the misdemeanor of operating a motor vehicle with a suspended registration is an arrestable offense, and the circumstances in which it is so.  We conclude that there is no statutory authority to arrest an individual for operating a motor vehicle with a revoked[1] registration but that, under circumstances not present here, an arrest may be made under the established common law rule pertaining to warrantless arrests for misdemeanors.  As to the defendant’s second argument, we conclude that, even accepting that an excessive show of force was employed by the police in the circumstances presented, the inevitable discovery exception applies.

In addition, we reject the defendant’s argument that the evidence was insufficient to prove possession of stolen property.  Accordingly, we affirm.

Background.  The defendant was charged in District Court with two counts of receiving stolen property having a value greater than $ 250, G. L. c. 266, § 60; and one count each of possession of a burglarious instrument, G. L. c. 266, § 49; receiving a stolen credit card, G. L. c. 266, § 37B(b); improper use of a credit card, G. L. c. 266, § 37B(f); forgery of a document, G. L. c. 267, § 1; uttering a false writing, G. L. c. 267, § 5; and operating a motor vehicle with a suspended registration, G. L. c. 90, § 23.[2]  With the exception of the motor vehicle violation, the tangible evidence of the crimes was obtained through a warrantless search of a van driven by the defendant.

After an evidentiary hearing consisting of one witness (the arresting officer) and one exhibit (the Burlington police department’s inventory policy),[3] the motion judge denied the defendant’s pretrial motion to suppress, and found the following facts which we adopt wholesale, there being no claim or showing of clear error.

“Officer Peter Abaskharoun has been with the Burlington Police Department for six years with an additional two years as a New Hampshire state trooper.  On the evening of January 7, 2010 at 8:45, he was dispatched to Wendy’s at 120 Mall Road for a call that a victim of a theft who had reported that a motor vehicle with two suspects had just pulled out of Wendy’s restaurant.  The victim’s cellular telephone had been stolen.  The victim had used her Global Positioning System (GPS) tracker to locate her cellphone from Woburn to Burlington and obtained the license plate to the car, to which the GPS locator had led the victim.

“Officer Abaskharoun ran the license plate and learned that the registration to the Chrysler Town and Country van had been revoked.  Detective Redfern had spoken to the victim relating to the identity of the motor vehicle.  Detective Redfern advised the officer to ‘use caution.’  Detective Redfern with other officers were down the street with the victim.

“When the officer was on Mall Road, the vehicle with the queried license plate passed the officer.  The officer activated his cruiser lights and stopped the vehicle on South Bedford Street.  Officer Abaskharoun called for other units.  He conducted a ‘felony stop’ of the car with his gun directed at the van.  He used the public address (PA) system to order the driver to shut off the engine, throw the car keys out of the window and exit the van.

“Defendant Ubilez was the driver.  The defendant complied and walked backwards with his hands in the air to the officer.  Officer Abaskharoun ordered the defendant to his knees and handcuffed him.  The officer pat-frisked the defendant, and no weapons were found.  Officer Abaskharoun read Miranda rights to the defendant who refused to answer him.

“As he looked into the vehicle, the officer saw two purses in plain view.  Neither the defendant nor the passenger was a woman.  The officer obtained a description of the purse from the victim:  a red Coach purse.  The purse seen in the rear seat matched the description provided by the victim.

“Upon search [of] the motor vehicle, the police found a tan purse with a female identification behind the driver’s seat.  Other items found were laptops, GPS units and cellphone[s].  The Wendy’s bag of food was still warm to the touch.  There were tools to punch out a car window pane including a screw driver.  The defendant was arrested.

“There were too many items to inventory.  The motor vehicle was towed and left in the sally port of the Burlington Police Department.  An inventory search was conducted pursuant to the Burlington Police Department Motor Vehicle Inventories . . . .  The reporting party, Ms. Reynolds, identified her red Coach purse.  The identification in the other purse was that of a Diane Stafford.”

Discussion.  1.  Inevitable discovery.  The defendant concedes that, given the contemporaneous report by the victim that her stolen cell phone was in the van driven by the defendant, and the officer’s knowledge that the van’s registration had been revoked, there was sufficient ground to stop the van.  He argues, however, that discovery of the items in the van was not inevitable under the two-step analysis announced in Commonwealth v. O’Connor, 406 Mass. 112 (1989).  We disagree.

In the first step of the O’Connor analysis, “the Commonwealth has the burden of proving the facts bearing on inevitability by a preponderance of the evidence and, once the relevant facts have been proved, that discovery by lawful means was ‘certain as a practical matter.’”  Commonwealth v. Perrot, 407 Mass. 539, 547 (1990), quoting from Commonwealth v. O’Connor, 406 Mass. at 117.  Inevitability is determined by the “circumstances existing at the time of the unlawful seizure.”[4]  Commonwealth v. Perrot, 407 Mass. at 548, quoting from Commonwealth v. O’Connor, 406 Mass. at 117 n.4.

Here, Officer Abaskharoun knew, before stopping the van, that its registration had been revoked.  Under G. L. c. 90, § 9, an unregistered vehicle cannot be operated, nor can it be allowed to remain on any way.[5]  Because the van was unregistered, “the officers could not permit the continued unlawful operation of th[e] vehicle on the public roadways, nor could they leave the vehicle unattended on the shoulder of a busy main road.”  Commonwealth v. Daley, 423 Mass. 747, 750 (1996) (impoundment required for unregistered vehicle).  As a practical matter, therefore, it was inevitable that the van would be impounded once it had been stopped.  Moreover, the defendant does not challenge the fact that impounded vehicles are required to be inventoried under the Burlington police department’s written inventory policy.  Nor does he argue that the conduct or scope of the search violated the written policy.  See Commonwealth v. Silva, 61 Mass. App. Ct. 28, 32 (2004).  The first step of O’Connor‘s two-step test is accordingly satisfied.

In the second step, we are to consider the severity of the alleged constitutional violation.  Commonwealth v. Perrot, 407 Mass. at 547.  In this regard, “[b]ad faith of the police, shown by such activities as conducting an unlawful search in order to accelerate discovery of the evidence, will be relevant in assessing the severity of any constitutional violation.”  Commonwealth v. O’Connor, 406 Mass. at 118.  Here, unlike the circumstances in Perrot and O’Connor, we are not faced with a situation where the police conduct was designed to obtain evidence or to circumvent the warrant requirement.  Nor is there any claim or showing of bad faith on the part of the officer.

However, relying on United States v. Rullo, 748 F. Supp. 36 (D. Mass. 1990), the defendant contends that the second step of the O’Connor analysis is not satisfied because the officer used excessive force.  In Rullo, officers, believing that the defendant had fired a gun at them and that the gun was still in his possession, beat him while repeatedly asking about the location of the gun.  As a result, the defendant told the officers where the gun could be found.  Ibid.  The judge found that the defendant’s statements were coerced, and that they led directly to the discovery of physical evidence leading directly to his conviction.  Id. at 43.  Although the judge determined that, given the gun’s proximity to the location of the shooting, the weapon would inevitably have been found, he concluded that the inevitable discovery exception did not apply for two reasons.  Id. at 44.  First, he determined that the gun’s discovery was not independent of the police misconduct because the search was conducted by the same officers who beat the defendant.  Ibid.  Second, he determined that application of the inevitable discovery doctrine in the circumstances presented “would encourage law enforcement officers to believe that they can avoid the burden of a prolonged area search by physically abusing a suspect, without significant risk of forfeiting the admissibility of any physical evidence.”  Ibid.

At the outset, we note that Rullo deals with the United States Court of Appeals for the First Circuit’s three-prong articulation of the inevitable discovery exception set out in United States v. Silvestri, 787 F.2d 736, 744 (1st Cir. 1986), cert. denied, 487 U.S. 1233 (1988), rather than the two-step analysis of O’Connor.  In addition, Rullo‘s analysis has not been adopted or cited approvingly elsewhere.  See United States v. Ford, 22 F.3d 374, 380 (1st Cir.), cert. denied, 513 U.S. 900 (1994); United States v. Alexander, 540 F.3d 494, 503 (6th Cir. 2008), cert. denied, 556 U.S. 1173 (2009).  That said, the decision in Rullo turned on an inquiry similar to the second step of the O’Connor analysis; namely, whether the police conduct was taken in bad faith, or designed to obtain evidence while avoiding the warrant requirement.  As noted above, the facts here do not fall within these parameters, even accepting, for purposes of discussion, that the force employed was excessive in the circumstances presented.[6]

Thus, even accepting the defendant’s contention that the arresting officer employed excessive force, we conclude that the second step of O’Connor is satisfied and that, accordingly, the inevitable discovery exception applies.

2.  Search incident to arrest for operating motor vehicle with revoked registration.  Given our conclusions above, there is no need for us to reach the defendant’s argument that the search was not incident to a lawful arrest, either for receiving stolen property or for operating a motor vehicle with a revoked registration.  That said, because the issue has not previously been considered at the appellate level in Massachusetts and trial court decisions are inconsistent as to whether it is an arrestable offense, we address the defendant’s argument with respect to a charge of operating a motor vehicle with a revoked registration in violation of G. L. c. 90, § 23.  The same considerations do not apply with respect to a charge of receiving stolen property and, therefore, we do not consider the defendant’s argument with respect to that charge.

“Among the exceptions to the warrant requirement is a search incident to a lawful arrest.”  Arizona v. Gant, 556 U.S. 332, 338 (2009), citing Weeks v. United States, 232 U.S. 383, 392 (1914).  Operating a motor vehicle with a revoked or suspended registration, in violation of G. L. c. 90, § 23, is a misdemeanor[7] for which there is no statutory authority to arrest.  See G. L. c. 90, § 21 (offense not listed among arrestable motor vehicle offenses).  In the absence of statutory authority, a police officer may make a warrantless arrest for a misdemeanor only where it “(1) involves a breach of the peace, (2) is committed in the presence or view of the officer . . . and (3) is still continuing at the time of the arrest or only interrupted, so that the offence and the arrest form parts of one transaction.”  Commonwealth v. Conway, 2 Mass. App. Ct. 547, 550 (1974), quoting from Commonwealth v. Gorman, 288 Mass. 294, 297 (1934).  On the facts found here, the defendant’s operation of the vehicle without a valid registration did not constitute a breach of the peace.  ”To find a breach of the peace . . . an act must at least threaten to have some disturbing effect on the public.”  Commonwealth v. Baez, 42 Mass. App. Ct. 565, 570 (1997).  There was no evidence that the defendant’s operation of the vehicle was erratic or negligent, or that it in any other way had a disturbing effect on the public.  Compare Commonwealth v. Jewett, 471 Mass. 624, 630 (2015) (leading police on vehicle chase through residential neighborhood is breach of peace).

There are two additional reasons why this was not a permissible search incident to an arrest.  “‘The purpose, long established, of a search incident to an arrest is to prevent an individual from destroying or concealing evidence of the crime for which the police have probable cause to arrest, or to prevent an individual from acquiring a weapon to resist arrest or to facilitate an escape.’  Commonwealth v. Santiago, 410 Mass. 737, 743 (1991).  Thus, police may search an automobile incident to the arrest of its driver only where the arrestee ‘is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest.’  Arizona v. Gant, supra at 346.”  Commonwealth v. Perkins, 465 Mass. 600, 605 (2013).  Here, the defendant was handcuffed while kneeling after he had walked away from the van and towards Officer Abaskharoun.  At that point, the officer “could not reasonably have believed that he might access weapons inside the automobile.”  Ibid.

Moreover, the officer could not have reasonably believed that evidence of the offense might be found in the van.  The situation presented here is almost identical to that in Perkins, 465 Mass. at 605, where the court held that the arresting officer did not have reason to believe that evidence of the crime of operating a motor vehicle without a valid license would be found in the automobile the defendant was driving.  In that case, the defendant’s operation of the vehicle combined with the officer’s knowledge that the defendant did not have a license was insufficient to establish a reasonable belief that evidence of the offense would be found in the vehicle.  Ibid.  The facts here are on all fours.

Thus, the search was not incident to a lawful arrest for operating a motor vehicle with a revoked registration.  In the circumstances presented, it was not an arrestable offense, the defendant was not within reach of the vehicle, and there was no reason to believe that evidence of the offense would be found in the van.

3.  Sufficiency of the evidence.  Viewed in the light most favorable to the Commonwealth, the evidence and the reasonable inferences to be drawn from it were sufficient to prove beyond a reasonable doubt the elements of receiving stolen property with a value greater than $ 250.[8]  Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).  On January 7, 2010, Diane Stafford and Betsy Reynolds both discovered that their cars had been broken into while parked.  In both cases, the car window had been smashed, and the women’s purses had been stolen, together with other personal items that had been left in the cars.

Reynolds owned two cell phones; one was inside a red purse that had been stolen, the other was with her.  Using a tracking function on the stolen cell phone, Reynolds was led to a 7-Eleven store in Woburn.  There, she wrote down the license plate information of every car in the parking lot.  She then tracked the stolen cell phone to a Wendy’s restaurant in Burlington, where she observed a van similar to one she had observed at the 7-Eleven store and with a license plate number she had previously recorded.  Reynolds observed the defendant leave the van and discard a “white trash bag” into a trash bin.  The bag was later discovered to contain a wallet, receipts, and other personal items belonging to Reynolds and Stafford.  The defendant then returned to the van and drove away.  Reynolds reported the situation to the police, who stopped the van while she continued to track it.  Reynolds’s and Stafford’s purses were in open view on the back seat of the van.  The inventory of the van search conducted after the defendant’s arrest uncovered multiple cell phones, a laptop computer, a center punch (an item commonly used to break into cars), various tools, and multiple credit cards in Stafford’s name.  Contrary to the defendant’s argument, it was certainly within the jury’s province to determine beyond a reasonable doubt, on these facts, that the defendant possessed stolen property.

Judgments affirmed.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

14-P-1898                                       Appeals Court

GURU JIWAN SINGH KHALSA & another[1]  vs.  SOVEREIGN BANK, N.A.

No. 14-P-1898.

Suffolk.     November 2, 2015. – January 11, 2016.

Present:  Milkey, Carhart, & Massing, JJ.

Mortgage, Foreclosure, Real estate.  Real Property, Mortgage.  Negotiable Instruments, Note.  Agency, What constitutes.

Civil action commenced in the Superior Court Department on January 8, 2013.

The case was heard by Robert B. Gordon, J., on motions for summary judgment.

James L. Rogal for the defendant.

Leonard M. Singer for the plaintiffs.

MASSING, J.  To effect a valid foreclosure sale, the foreclosing mortgage holder must also hold the underlying note or be acting on behalf of the note holder.  Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 571 (2012) (Eaton).  This appeal requires us to consider how a mortgagee may show that it is acting “as the authorized agent of the note holder,” id. at 586, for summary judgment purposes.

On cross motions for summary judgment, a judge of the Superior Court judge entered a declaratory judgment in favor of the plaintiff borrowers, Khalsa and Kaur, and against the defendant mortgagee, Sovereign Bank, N.A. (Sovereign), declaring that the foreclosure sale of the plaintiffs’ residence was void because Sovereign had failed to show that it was acting as the authorized agent of the note holder, Federal Home Loan Mortgage Corporation (Freddie Mac).  Sovereign appeals.  Because the summary judgment materials create a genuine issue of fact concerning Sovereign’s authorization to foreclose on Freddie Mac’s behalf, we vacate the judgment and remand the case for further proceedings.

Background.  On April 2, 2008, the plaintiffs executed a promissory note payable to Sovereign in the original principal amount of $ 274,000 to finance the purchase of their home in Millis.  To secure the note, the plaintiffs granted Sovereign a mortgage on the property.  Shortly thereafter, Freddie Mac purchased the note from Sovereign, retaining Sovereign as servicer of the note and mortgage.

On April 22, 2011, Sovereign notified the plaintiffs that they were in default on their loan for nonpayment.  Sovereign held a foreclosure sale on January 18, 2013.  Although Sovereign held itself out as the “Lender” in the default notice, the note had been indorsed in blank, and at the time of the sale, Freddie Mac had physical possession of the note.  See G. L. c. 106, § 3-205(b), inserted by St. 1998, c. 24, § 8 (“When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed”).  Sovereign purchased the property at the foreclosure auction and sold its bid to Freddie Mac.

Meanwhile, the plaintiffs had filed a complaint in the Superior Court on January 8, 2013, seeking to enjoin the foreclosure sale and a declaration that Sovereign was not entitled to foreclose because, among other alleged deficiencies, “Sovereign Bank does not have authority from the holder of the mortgage note given by the plaintiffs.”  After a hearing on the plaintiffs’ application for a preliminary injunction on January 17, 2013, a judge denied relief, and the foreclosure sale went forward the following day.  On November 5, 2013, a different judge denied Sovereign’s first motion for summary judgment.  Acting on subsequently-filed cross motions for summary judgment, on September 9, 2014, a third judge allowed the plaintiffs’ motion, denied Sovereign’s motion, and declared the foreclosure void.

Evidence of Sovereign’s authority to foreclose.  The only contested issue in this case is whether Sovereign, which was the holder of the mortgage but not the note, acted with Freddie Mac’s authority to conduct the foreclosure sale.  On this point, in connection with its first motion for summary judgment, Sovereign submitted the affidavit of Alan L. Norris, a default operations analyst at Sovereign.[2]  Based on his review of Sovereign’s file concerning the plaintiffs’ mortgage, Norris stated “to the best of [his] knowledge and belief” that Freddie Mac purchased the plaintiffs’ loan on May 13, 2008, “with Sovereign retaining the servicing of the Loan.”  He added, “Sovereign is the mortgagee of record, the servicer of the Loan, and the holder of the Note.”[3]  He asserted in his affidavit that “[t]he relationship between Freddie Mac and the Seller/Servicers of its loans is governed by the Freddie Mac Single Family Seller/Servicer Guide . . .” (guide).[4]  He further stated, “Freddie Mac, as owner of the Note, has authorized Sovereign to act on its behalf.”

Norris did not refer to any particular document in the file, nor did Sovereign submit any documentary evidence to support this assertion.  The judge who denied Sovereign’s first motion for summary judgment declined to credit Norris’s “unsupported statement, based on no apparent personal knowledge.”

In its second motion for summary judgment, Sovereign supplemented the Norris affidavit with the affidavit of Dean Meyer, an assistant treasurer of Freddie Mac, who also based his affidavit “on a review of the loan records for the property.”  Regarding Sovereign’s authorization to act on Freddie Mac’s behalf in the foreclosure sale, Meyer also cited the guide, which, he repeated, “governs the relationship between a Seller/Servicer and Freddie Mac relating to the sale and servicing of mortgages.”  Meyer stated in paragraph five of the affidavit, “When a borrower defaults, Freddie Mac authorizes a servicer to initiate foreclosure proceedings in accordance with the Guide.”  Meyer concluded in paragraph six, “As a result of the plaintiffs’ default on their mortgage, Sovereign, as a Freddie Mac servicer, was authorized to conduct foreclosure proceedings against the Plaintiffs.”

The guide is 2,799 pages long.  Meyer’s affidavit did not identify exactly where in the guide Freddie Mac authorized Sovereign in particular, or any seller/servicers in general, to act on its behalf to initiate foreclosure proceedings or conduct foreclosure sales.  In his memorandum and order allowing the plaintiffs’ cross motion for summary judgment, the judge commented that “one is left to speculate as to how (if at all) Mr. Meyer has any personal knowledge of the facts he asserts.”  Because Meyer purported to state the content of the guide without producing the relevant pages, the motion judge allowed plaintiffs’ motion to strike paragraph five as violating the best evidence rule.  See Mass. G. Evid. § 1002 (2015).

The record on Sovereign’s second motion for summary judgment included two pages from the guide, which Norris, testifying as Sovereign’s designee in a deposition conducted pursuant to Mass.R.Civ.P. 30(b)(6), 365 Mass. 780 (1974), stated were “the only thing in the seller/servicer guide that Sovereign Bank is relying upon as authority to foreclose the [plaintiffs’] mortgage.”  As Sovereign conceded at oral argument on appeal, neither page establishes that Sovereign was acting on behalf of Freddie Mac.  The motion judge ruled that Sovereign had failed to present any competent evidence establishing that Sovereign was authorized to act as Freddie Mac’s agent when it initiated the foreclosure sale.  Accordingly, the judge denied Sovereign’s motion for summary judgment and allowed the plaintiffs’ motion.

Discussion.  Under Eaton, 462 Mass. at 571, “a foreclosure by power of sale pursuant to G. L. c. 183, § 21, and G. L. c. 244, §§ 11-17C, is invalid unless a foreclosing party holds the mortgage and also either holds the underlying mortgage note or acts on behalf of the note holder.”  Galiastro v. Mortgage Electronic Registration Sys., Inc., 467 Mass. 160, 161 (2014).[5]  The question before us is whether a genuine factual dispute exists as to whether Sovereign was acting “as the authorized agent of the note holder.”  Eaton, supra at 586.  While the judge did not err in identifying the shortcomings in Sovereign’s materials and, accordingly, denying Sovereign’s motion for summary judgment, these shortcomings did not entitle the plaintiffs to summary judgment in their favor.

General agency principles apply in the context of mortgage foreclosure sales.  Ibid.  An agency relationship “arises ‘from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.’”  Harrison Conference Servs. of Mass., Inc. v. Commissioner of Rev., 394 Mass. 21, 24 (1985), quoting from Restatement (Second) of Agency § 1(1) (1958).

Where the mortgage holder and note holder are not the same, the mortgage holder can demonstrate that it was authorized to act as the note holder’s agent in a variety of ways.  The task is simple if the mortgage holder can produce an instrument executed by the note holder prior to the foreclosure proceedings that expressly authorizes the mortgage holder to foreclose on the particular loan.  Sufficient proof would be similarly straightforward if the mortgage holder could produce a document from the note holder, predating the foreclosure, generally authorizing the mortgage holder to act in its discretion as the note holder’s agent for the purpose of foreclosing on a series of mortgages that included the borrower’s.  Providing the requisite proof is more challenging where, as here, a loan-specific preforeclosure authorization apparently does not exist.

Through its affidavits, Sovereign attempted to show that its seller/servicer relationship with Freddie Mac included the authority to act on Freddie Mac’s behalf to initiate and conduct foreclosure proceedings with respect to all the loans Sovereign serviced on Freddie Mac’s behalf (which included the plaintiffs’).  We agree with Sovereign that such proof could satisfy Eaton; that is, Sovereign could have shown that it possessed the requisite authority without pointing to any preforeclosure instrument expressly authorizing it to foreclose.

To prevail on its motion for summary judgment, however, Sovereign had to establish that no genuine issue of material fact existed concerning such an agency relationship with Freddie Mac and that it was therefore entitled to judgment as matter of law.  DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 799 (2013).  The affidavits that Sovereign produced in an effort to support its assertions did not satisfy the requirements of Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974), which requires affidavits “made on personal knowledge” that “set forth such facts as would be admissible in evidence.”  See Polaroid Corp. v. Rollins Envtl. Servs. (NJ), Inc., 416 Mass. 684, 696 (1993) (“bare assertions and conclusions regarding a company officer’s understandings, beliefs, and assumptions are not enough to withstand a well-pleaded motion for summary judgment”); Haverty v. Commissioner of Correction, 437 Mass. 737, 754 (2002), S.C., 440 Mass. 1 (2003) (“generalized statements . . . devoid of specific details” insufficient).  For example, as noted, the judge ruled that Meyer’s affidavit failed adequately to demonstrate the basis of his personal knowledge and violated the best evidence rule.[6]  Norris’s affidavit was similarly deficient.  In other words, Sovereign’s efforts to demonstrate its own entitlement to summary judgment failed not as a matter of theory but as a matter of proof.

Of course, Sovereign’s failure to show that it was entitled to summary judgment does not mean that the plaintiffs were entitled to the allowance of their cross motion for summary judgment.  See, e.g., Curly Customs, Inc. v. Bank of Boston, N.A., 49 Mass. App. Ct. 197, 199 (2000).  With respect to their motion for summary judgment, the plaintiffs as the moving party had “the burden of demonstrating affirmatively the absence of a genuine issue of material fact on every relevant issue, regardless of who would have the burden on that issue at trial.”  Arcidi v. National Assn. of Govt. Employees, Inc., 447 Mass. 616, 619 (2006).[7]  “This burden need not be met by affirmative evidence negating an essential element of the plaintiff’s case, but may be satisfied by demonstrating that proof of that element is unlikely to be forthcoming at trial.”  Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991), citing Kourouvacilis v. General Motors Corp., 410 Mass. 706 (1991).  Applied to this case, to prevail on summary judgment the plaintiffs had the burden to show that Sovereign’s materials could not support an inference that its seller/servicer relationship with Freddie Mac included the authority to foreclose on the plaintiffs’ loan.

In evaluating whether the plaintiffs met their burden on this point, “we review the record in the light most favorable to the party against whom the judge allowed summary judgment, here [Sovereign].”  Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515, 516 (2011).  “Any doubts as to the existence of a genuine issue of material fact are to be resolved against the party moving for summary judgment.”  Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 550 n.6 (2008).

The plaintiffs presented affirmative proof that Sovereign did not hold the note when it foreclosed on the mortgage.  Sovereign, in turn, presented materials intended to show that it possessed authority to act on the note holder’s behalf.  For the reasons set forth above, Sovereign’s apparent inability to produce a preforeclosure instrument from Freddie Mac expressly authorizing it to foreclose on the plaintiffs’ mortgage is not fatal to Sovereign’s claim that it had the requisite authority.  Although Sovereign failed at the summary judgment stage to identify the precise language in the complex seller/servicer agreement establishing conclusive proof of its authority, this does not mean that it would be unable to provide the requisite proof at trial.

Indeed, Sovereign’s summary judgment materials included multiple indicators that it was acting as Freddie Mac’s agent.  The guide included detailed instructions on how to conduct foreclosures on Freddie Mac’s behalf, strongly suggesting that Sovereign, as a seller/servicer, generally possessed the power to conduct foreclosures.  In addition, the summary judgment record shows that after Sovereign was the highest bidder at the foreclosure sale, Freddie Mac purchased Sovereign’s bid.  Based on that course of events, a fact finder could infer that Freddie Mac had authorized Sovereign to go forward with the foreclosure.[8]  While Sovereign’s materials may amount to “at best a toehold to establish” its authority to act on Freddie Mac’s behalf, “[a] toehold . . . is enough to survive a motion for summary judgment.”  Marr Equip. Corp. v. I.T.O. Corp. of New England, 14 Mass. App. Ct. 231, 235 (1982).[9]

Conclusion.  The judgment is vacated, and the case is remanded to the Superior Court for further proceedings.

So ordered.

Full-text Opinions

HINES, J. (dissenting, with whom Duffly, J., joins).  I agree with the court’s ruling that a parole officer may conductawarrantless search of a parolee’s home based on reasonable suspicion that the search will reveal evidence that the parolee has, or is about to, violate a condition of his or her parole.  I do not agree, however, with the court’s application of that principle to this case.  Even assuming the corroboration of the anonymous tip that the defendant was selling drugs in New Bedford, the totality of the information known to the police at the time of the search does not establish reasonable suspicion that evidence of the defendant’s drug dealing activities would be found in his home.  For this reason, I respectfully dissent.

The test for reasonable suspicion to conduct a warrantless search of a parolee’s home is the same as that articulated in Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, see Commonwealth v. Silva, 366 Mass. 402, 406 (1974).  Ante at [13].  It requires that the officer’s actions be based on “specific and articulable facts and the specific reasonable inferences” that the search would reveal evidence that the parolee has, or is about to, violate a condition of parole.  Silva, supra.  The court’s analysis leans heavily on the tip that the defendant violated the conditions of parole by selling illegal drugs and, based in large part on that information, finds the required nexus to the defendant’s home.  The analysis is flawed insofar as it is premised on an unacceptably conclusory view of the facts known to the parole officer at the time of the search.  The substance of the court’s reasoning is that “[b]ased on the tip, the evidence of the defendant’s conduct consistent with that tip, and in light of [the parole officer’s] experience, both with narcotics and with other parolees, it was reasonable for him to suspect that a search of the defendant’s home would produce further evidence of drug-related violations, including illegal possession or distribution.”  Ante at [17].  The required nexus between the defendant’s criminal activity and his home demands more specificity than is supplied by the bare-bones “tip” and the “evidence of the defendant’s conduct consistent with that tip” on which the court relies.  Id.  At best, the information relied on by the court to find a nexus between the defendant’s illegal activity and his home established only that he was suspected of a crime and that he lived at the residence where the search was conducted.  “Information establishing that a person is guilty of a crime does not necessarily constitute probable cause [or in this case reasonable suspicion] to search the person’s residence.”  Commonwealth v. Pina, 453 Mass. 438, 441 (2009), quoting Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983).  Similarly, reasonable suspicion that evidence of the defendant’s illegal drug activity would be found in the defendant’s home “is not established by the fact that the defendant lives there.”  Pina, supra.

Although our cases addressing the nexus between the suspected criminal activity and the place of the search arise in the context of probable cause for the issuance of a search warrant, the analytical framework underlying those cases is instructive.  In that context, the issue is whether the warrant establishes “a sufficient nexus between the defendant’s drug-selling activity and his residence to establish probable cause to search the residence.”  Id., quoting Commonwealth v. O’Day, 440 Mass. 296, 304 (2003).  Applying that framework to the warrantless search of a parolee’s home, the issue is the same:  whether there is a sufficient nexus between the criminal activity and the defendant’s home.  The test, however, is the less rigorous standard of reasonable suspicion rather than probable cause.

As we recently observed, “[n]o bright-line rule can establish whether there is a nexus between suspected drug dealing and a defendant’s home.”  Commonwealth v. Escalera, 462 Mass. 636, 643 (2012).  Nonetheless, our cases provide sufficient guidance to warrant the conclusion that the nexus was lacking in this case.  We have found a sufficient nexus in cases involving observations by police of a suspect leaving his or her home and proceeding directly to a controlled sale on multiple occasions.  See, e.g., Commonwealth v. Cruz, 430 Mass. 838, 841-842 (2000) (undercover officer purchased cocaine from defendant in parking lot of defendant’s apartment building during six separate controlled sales); Commonwealth v. Monteiro, 80 Mass. App. Ct. 171, 175 (2011) (multiple controlled purchases after defendant observed leaving his home); Commonwealth v. Hardy, 63 Mass. App. Ct. 210, 211–212 (2005) (defendant left from apartment for two controlled purchases).  A nexus may also be shown where the police made a single observation of a suspect departing from his or her home for a drug deal “coupled with other information, such as statements from credible informants.”  Escalera, supra at 644.  Ultimately, “there need not be definite proof that the seller keeps his supply at his residence” (citation omitted).  Id. at 645.  Rather, it will suffice “if there are some additional facts [that] would support the inference that the supply is probably located there” (citation omitted).  Id.

Accepting for the sake of argument the reliability of the anonymous tip that the defendant was selling illegal drugs in New Bedford,^[17] nothing in the information available to the parole officer prior to the search connected that activity to the defendant’s home.  When questioned about the details of the tip at the motion to suppress hearing, the parole officer responded unequivocally that the anonymous tipster provided no information other than “he [the defendant] was dealing drugs.  That’s all.”  Thus, the tip contained no information from which the parole officer reasonably could infer that this particular illegal activity was occurring at the defendant’s home.

The other available information concerning the defendant’s movements, on which the court relies, adds nothing to the picture of how the defendant conducted his business and, more specifically, whether the defendant’s home was used in the operation of the enterprise.  The parole officer was aware that the defendant had made two trips to Boston, staying for only a brief time and then returning to New Bedford.  On the days following the return from Boston, the defendant moved about New Bedford, suggesting that he might have been selling illegal drugs.  Without more information, however, it is simply not possible to draw any inferences regarding the location of the defendant’s supply or the place where the sales occurred.  That the defendant was in the company of a person who had drugs on her person and that the defendant was found in possession of a “blunt” when he was stopped by the police, of course, is evidence of a parole violation.  It is not suggested, however, that any such violation was the predicate for the search of the defendant’s home.  Unquestionably, the search was related to the drug activity and it must be validated on that basis alone.

I recognize that the “facts and inferences underlying the officer’s suspicion must be viewed as a whole when assessing the reasonableness of his acts.”  Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981).  At the same time, a mere hunch is insufficient.  Commonwealth v. Gomes, 453 Mass. 506, 511 (2009), citing Commonwealth v. Grandison, 433 Mass. 135, 139 (2001).  In my view, all of the information, taken together, amounted to no more than a mere hunch that evidence of drug activity would be found in the defendant’s home.  To cross the mere hunch threshold, our cases, as discussed above, have attached relevance and significance to facts simply not present here.  In the complete absence of specific articulable facts establishing a nexus between the defendant’s drug activity and his home, the search cannot be justified.  Therefore, I respectfully dissent.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

13-P-276                                        Appeals Court

PARKVIEW ELECTRONICS TRUST, LLC  vs.  CONSERVATION COMMISSION OF WINCHESTER.

No. 13-P-276.

Middlesex.     November 6, 2014. – January 12, 2016.

Present:  Trainor, Agnes, & Maldonado, JJ.

Municipal Corporations, Conservation commission, By-laws and ordinances.  Wetlands Protection Act.  Department of Environmental Protection.  Jurisdiction, Administrative matter.  Zoning, By-law, Wetlands.

Civil action commenced in the Superior Court Department on June 25, 2004.

The case was heard by Mitchell H. Kaplan, J., on motions for judgment on the pleadings.

Jill Brenner Meixel (Vincent J. Pisegna with her) for the plaintiff.
Wade M. Welch (Melissa C. Donohoe with him) for the defendant.

AGNES, J.  The Wetlands Protection Act, G. L. c. 131, § 40 (act), sets forth “minimum wetlands protection standards, and local communities are free to impose more stringent requirements.”  Oyster Creek Preservation, Inc. v. Conservation Commn. of Harwich, 449 Mass. 859, 866 (2007).  As we noted in Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. 565, 568 (1996), it is not uncommon for a town, under its local by-law, to establish wetland protection standards that are more demanding than those under State law.  In such a case, when a local commission concludes that a project meets the requirements of State law, but does not satisfy the requirements of municipal law, it “introduces no legal dissonance and violates no principle of State preemption.”  Ibid.  In Healer v. Department of Envtl. Protection, 73 Mass. App. Ct. 714, 718 (2009), we explained the requirements that must be met by a local conservation commission that decides to act independent of State law by exercising jurisdiction over wetlands exclusively on the basis of a more stringent local by-law.[1]

In the present case, the by-law of the town of Winchester (local by-law) has a more expansive standard for “land subject to flooding” than does the act.[2]  Nevertheless, the plaintiff, Parkview Electronics Trust, LLC (Parkview), contends that an order of resource area delineation (ORAD) issued by the conservation commission of Winchester (commission) is invalid under Healer because it was not based “exclusively” on the more stringent provisions of local law.[3]  In effect, Parkview maintains that Healer requires a local commission to choose between reliance on State law or local law.  For the reasons that follow, we reject this reading of Healer and affirm the judgment.

The essential facts are not in dispute.  Parkview owns an industrial park (property) located in Winchester, consisting of seven buildings in which many businesses are located.  The property has often been subject to flooding given its proximity to the Aberjona River.  In 1996 and 1998, the Aberjona River overflowed its banks and flooded the property.  In 1999, to protect the property, Parkview raised the driveway on the property (also referred to as berm) from 25.5 feet above sea level to 28.1 feet above sea level.  The driveway acts as a berm to prevent future flood water from flowing onto the property.

In 2004, the property’s abutter filed a request for an abbreviated notice of resource area delineation (ANRAD) with the commission, claiming that the berm had the effect of diverting water onto his property.  On May 14, 2004, the commission, in response, issued the ORAD that is the subject of this appeal.[4]  The ORAD states on the top of the form:  ”Order of Resource Area Delineation Massachusetts Wetlands Protection Act M.G.L. c. 131, § 40.”  After this language, the form states:  “And Winchester Wetlands Bylaw.”

Parkview commenced an action in the nature of certiorari against the commission on June 25, 2004, seeking to annul the ORAD issued on May 14, 2004.  See G. L. c. 249, § 4.  The commission issued additional orders on May 14 and May 22, 2006.  Parkview filed an amended complaint seeking to annul all three orders.  The parties filed cross motions for judgment on the pleadings.  Following a hearing, a judge of the Superior Court granted the commission’s motion and denied Parkview’s motion, in effect ruling that the commission properly exercised jurisdiction over the property on the basis of the local by-law.  Judgment entered accordingly.

Meanwhile, on May 27, 2004, Parkview filed an appeal from the ORAD with the Department of Environmental Protection (DEP), requesting a superseding order of resource area delineation (SORAD).  Parkview asserted that the commission’s decision to assert jurisdiction was in error.  On April 30, 2010, the DEP issued a SORAD, and wrote a letter to Parkview, with a copy to the commission, stating that in 1999, the driveway was not within the 100-year flood plain shown on the Federal Emergency Management Agency’s (FEMA) flood insurance rate map and, therefore, not within the jurisdiction of the act.  The letter also stated “that it is MassDEP’s responsibility to address only those interests identified in the Wetlands Protection Act, M.G.L. Chapter 131, Section 40.”

Discussion.  Parkview maintains that the ORAD issued by the commission is not based exclusively on the local by-law and, thus, under Healer, was preempted by the SORAD issued by the DEP.  We disagree.  The regulatory authority of a local conservation commission stems from State law and, when there is a local by-law, as is the case here, local law as well.  Insofar as the commission relied on the act in asserting jurisdiction, Healer, 73 Mass. App. Ct. at 717-718, makes clear that its decision is subject to being superseded by that of the DEP.  See Garrity v. Conservation Commn. of Hingham, 462 Mass. 779, 783 (2012) (if local commission fails to act on application filed under G. L. c. 131, § 40, in timely manner, applicant or any interested party may request from DEP superseding order of conditions); Lippman v. Conservation Commn. of Hopkinton, 80 Mass. App. Ct. 1, 4 (2011) (any late-issued decision by local commission, even if based on more stringent local by-law, is without effect).  However, when a local commission acts in a timely manner and, in addition to reliance on State law,[5] also relies independently on a local by-law, as in this case, its decision interpreting and applying the local by-law is not subject to DEP review.  See Hobbs Brook Farm Property Co. Ltd. Partnership v. Conservation Commn. of Lincoln, 65 Mass. App. Ct. 142, 149 (2005).

In this case, the commission initially asserted jurisdiction on the basis of both State and local law.  The DEP subsequently found that the property in question was not subject to the commission’s jurisdiction under the act.  Even though the commission’s assertion of jurisdiction under the act was in error and was superseded by the DEP’s decision, the local by-law remains as an alternative basis for the commission’s jurisdiction.  We are satisfied that the more stringent definition of “land subject to flooding” contained in the local by-law, which is specifically referred to in the commission’s ORAD, was an alternative basis for the commission’s decision.[6]

Parkview’s principal argument is based on the following sentences in Healer (see note 1, supra):  “A local authority exercises permissible autonomous decision-making authority only when its decision is based exclusively on the specific terms of its by-law which are more stringent than the act. . . .  The simple fact, however, that a local by-law provides a more rigorous regulatory scheme does not preempt a redetermination of the local authority’s decision by the DEP except to the extent that the local decision was based exclusively on those provisions of its by-law that are more stringent and, therefore, independent of the act.”  Healer, 73 Mass. App. Ct. at 718-719 (footnote omitted).  These sentences simply mean that in order for a local commission to ensure that its decision is not subject to DEP review, the commission must base its decision exclusively on local law.  Insofar as a commission’s decision is based on local law and State law, DEP has jurisdiction to review it and supersede that portion of the commission’s decision that is based on State law.  For this reason, local commissions purporting to act under both State law and independently under local law should make it clear in their written decisions and orders that there is a dual basis for their determinations.[7]

Parkview also claims that the definition of “land subject to flooding” in the local by-law is so vague as to violate the due process clauses of the United States Constitution and the Massachusetts Declaration of Rights.  Section 2.14 of c. 13 of the local by-law (§ 2.14) defines “flooding” as “a temporary inundation of water or a rise in the surface of a body of water, such that it covers land not usually under water.”  See note 2, supra.  Section 3 of c. 13 of the local by-law provides that the commission has jurisdiction over “any land subject to flooding or inundation by groundwater or surface water.”

It is settled that “vagueness challenges to statutes not threatening First Amendment [to the United States Constitution] interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis.”  Love v. Butler, 952 F.2d 10, 13 (1st Cir. 1991), quoting from Maynard v. Cartwright, 486 U.S. 356, 361 (1988).  See Commonwealth v. Jasmin, 396 Mass. 653, 655 (1986); Fogelman v. Chatham, 15 Mass. App. Ct. 585, 589 (1983) (“A law is not unconstitutionally vague because it presents some questions as to its application in particular circumstances.  Courts and administrative boards draw lines and resolve ambiguities every day”).

Parkview argues that the definition of “flooding” is so general and broad that it gives the commission jurisdiction over “every puddle in every driveway and backyard in Winchester.” However, there is no basis for the claim that Parkview was left to guess as to the applicability of the local by-law to its construction of a berm to hold back floodwater.  In a letter to the commission dated April 5, 2011, Parkview’s attorney noted that there are seven businesses employing several hundred persons located in the property.  The letter goes on to report that “[t]he parties’ properties are close to a portion of the Aberjona River that has been prone to severe flooding since the

1990s.  The Aberjona flooded in 1996 and 1998.  As a result of these floods, Parkview suffered in excess of $ 400,000 in damages and Parkview’s tenants suffered millions of dollars in damages.” As in Doherty v. Planning Bd. of Scituate, 467 Mass. 560, 572 (2014), we conclude that when § 2.14 is considered in light of the general purpose of the local by-law as set forth in § 1 of c. 13,[8] and the public policy concerns giving rise to it, it is not impermissibly vague.

Judgment affirmed.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

14-P-1675                                       Appeals Court

COMMONWEALTH  vs.  JOHN V. CARVALHO.

No. 14-P-1675.

Bristol.     October 6, 2015. – January 13, 2016.

Present:  Berry, Green, & Blake, JJ.

Intimidation of Witness.  Harassment Prevention.  Jury and Jurors.  Practice, Criminal, Challenge to jurors, Voir dire.

Complaints received and sworn to in the Fall River Division of the District Court Department on July 1, 2010, and March 30, 2011.

After transfer to the New Bedford Division of the District Court Department, the cases were tried before Robert A. Welsh, III, J.

Dana Alan Curhan for the defendant.

Corey T. Mastin, Assistant District Attorney, for the Commonwealth.

BERRY, J.  Following a District Court jury trial, the defendant was convicted on two counts of intimidation of a witness, G. L. c. 268, § 13B, and one count of violation of a harassment prevention order, G. L. c. 258E, § 9.  In this appeal, the defendant contends that the trial judge erred (1) in denying the defendant’s peremptory challenge of one prospective juror who was the only minority seated on the petit jury; and (2) in refusing to pose a specific question to prospective jurors as to their experience with restraining and harassment prevention orders.  The defendant also argues that the evidence at trial was insufficient to support the guilty verdicts on the two counts of witness intimidation against him.  We affirm.

1.  Background.  The jury could have found that the defendant and the victim, who rented an apartment from the defendant, had a series of hostile encounters that culminated in the victim obtaining a harassment prevention order against the defendant.[1]  Following the issuance of that order, the defendant confronted the victim and made comments to her about dropping it.  The defendant was charged with intimidating a witness and violating the harassment prevention order, and, as mentioned, he was found guilty by a jury in the District Court.[2]

     2.  Jury issues.  We address two jury-related challenges posed by the defendant:  the peremptory challenge and the denial of a special question regarding experience with restraining and harassment prevention orders.

a.  Peremptory challenge.  During jury empanelment, defense counsel exercised a peremptory challenge against juror no. 1, who was the only minority juror seated.[3]  The prosecutor noted for the record (but did not lodge a formal objection) that juror no. 1 was “the only minority juror.”  The prosecutor’s comment prompted the trial judge to inquire of defense counsel concerning the reason for exercising the peremptory challenge.  The judge stated he was considering the matter as one involving Commonwealth v. Soares, 377 Mass. 461, 488, cert. denied, 444 U.S. 881 (1979).  In response to the judge’s comment, defense counsel said only that “[m]y client decided to challenge her.”  The judge responded that “under the case law you have to make a better showing than that.”  Defense counsel then added, “Just looking at her [the juror’s] experience, I don’t feel that she would be a person that would be fair and equitable to my client, Your Honor,” but “I really don’t need any reason.”  The judge responded, “Well, you absolutely have to make a showing other than I don’t think the juror would be fair.”  Finding that defense counsel had failed to make any such showing, the judge struck the peremptory challenge, and instructed that juror no. 1 be reseated.

While a reviewing court “presume[s] that peremptory challenges are properly made, . . . this presumption can be rebutted by a prima facie showing.”  Commonwealth v. Prunty, 462 Mass. 295, 306 (2012).  That prima facie showing has two parts:  “first, a pattern, which in some circumstances may be a pattern of one; and second, a likelihood of group exclusion, which in some circumstances can be discerned solely from the strength of the pattern” (emphasis added).  Commonwealth v. Issa, 466 Mass. 1, 8 (2013).  “If the judge finds that a prima facie case of impropriety has been made, the burden shifts to the challenging party, who ‘must provide, if possible, a neutral explanation establishing that the challenge is unrelated to the prospective juror’s group affiliation.’”  Prunty, supra, quoting from Commonwealth v. Harris, 409 Mass. 461, 464 (1991).  “In assessing proffered rationales for a juror’s exclusion, ‘we rely on the good judgment of the trial courts to distinguish bona fide reasons for such [challenges] from sham excuses belatedly contrived to avoid admitting facts of group discrimination.’”  Prunty, supra, quoting from Soares, supra at 491.

In large measure, this case follows very closely the protocol and precedent set out in Prunty and Issa, both of which control.  “[A] single peremptory challenge may be sufficient to rebut the presumption, especially where ‘the challenged juror is the only member of his or her protected class in the entire venire.’”  Issa, supra at 9, quoting from Prunty, supra at 306 n.15.  ”[U]nless the judge is permitted to treat the early use of challenges in such circumstances as establishing a pattern, the venire may be substantially depleted of members of a group before a pattern can be identified by palpable evidence of improper exclusion. . . . [A] judge has broad discretion to require an explanation without having to make the determination that a pattern of improper exclusion exists.”  Commonwealth v. Garrey, 436 Mass. 422, 429 (2002).  In this case, the defendant was challenging the “only minority juror.”  Thus, in these circumstances, the judge could have found “a pattern of one.”  Issa, supra at 8.

The defendant also contends that because the defendant and victim were of the same race, race was not “at issue” in the case, and thus the peremptory challenge was not subject to question.  While cross-racial issues at trial may be an indicator of a likely intent or motive to exclude members of a particular group, see, e.g., Commonwealth v. Roche, 44 Mass. App. Ct. 372, 377-378 (1998), a cross-racial trial setting is by no means required in order to rebut the presumption of propriety. See Commonwealth v. Benoit, 452 Mass. 212, 225 (2008).  “Among the factors that may be considered are the ‘numbers and percentage of group members excluded,’ and whether the challenged jurors are members of the same constitutionally protected group as the defendant or the victim.”  Issa, supra at 9, quoting from Garrey, supra at 428.  See Garrey, supra at 429 n.2 (“The fact that the defendant, the victim, and the witnesses were Caucasian was not dispositive of the issue, because the defendant is entitled to a jury selected by nondiscriminatory criteria, and prospective jurors are entitled to a discrimination-free jury selection process”).

The burden of establishing a prima facie showing that a peremptory challenge is improper “ought not be a terribly weighty one.”  Commonwealth v. Maldonado, 439 Mass. 460, 463 n.4 (2003).  “A trial judge is in the best position to decide if a peremptory challenge appears improper and requires an explanation by the party exercising it.  Therefore, we do not substitute our judgment [on whether the presumption has been rebutted] for [the trial judge’s] if there is support for it on the record.”  Commonwealth v. Aspen, 53 Mass. App. Ct. 259, 262 (2001) (quotations omitted).  To hold otherwise would be to unduly restrict the trial judge’s discretion to “[e]nsur[e] [the] nondiscriminatory use of peremptory challenges [and the] ‘intended . . . benefit[s to] both sides in a criminal trial, and to protect the right of each person to have the opportunity to serve on a jury without fear of exclusion due to invidious [race]-based discrimination.’”  Prunty, supra at 308, quoting from Commonwealth v. Fruchtman, 418 Mass. 8, 17, cert. denied, 513 U.S. 951 (1994).  Here, due to defense counsel’s exercise of his first peremptory challenge on the only minority juror seated and the prosecutor’s raising of the issue, the judge was within his discretion to find that a prima facie showing of impropriety was made and thus require an explanation from defense counsel.

As to the contention that defense counsel’s explanation for exercising the peremptory challenge was sufficient, we are unpersuaded.  In response to the judge’s inquiry, defense counsel explained that “[j]ust looking at her experience, I don’t feel that she would be a person that would be fair and equitable to my client, Your Honor.”  Such a generic description falls below the type of “bona fide” explanation that “must be both adequate (i.e., clear and reasonably specific, personal to the juror and not based on the juror’s group affiliation) and genuine (i.e., in fact the reason for the exercise of the challenge).”  Prunty, supra at 309 (quotations omitted).  See, e.g., Commonwealth v. Rodriguez, 431 Mass. 804, 808-809 (2000) (after pattern of excluding female jurors was established, defendant’s subsequent attempt to challenge another female juror was invalid because “not lik[ing] her looks” was insufficient gender-neutral reason for peremptory challenge).

b.  Special question in voir dire of the jury venire.  Defense counsel requested that the judge ask the following question of potential jurors:  “Have you or any family member or a friend requested a No Harassment Order or a [G. L. c.] 209A restraining order against another person or had a No Harassment Order or a [G. L. c.] 209A restraining order taken out against you, a family member or a friend?”  The judge declined and noted defense counsel’s objection.

First, we note that the information that the defendant sought to obtain through his proposed question was largely captured by the confidential juror questionnaire utilized in this case.[4]  See G. L. c. 234A, § 22.  The trial transcript also makes clear that the judge and counsel were aware of the jury questionnaires and the answers contained therein, as they served as the basis for individualized questioning of prospective jurors.  “The defendant has not indicated, nor does the record suggest, that any of the jurors selected were not fair and impartial.”  Commonwealth v. Reavis, 465 Mass. 875, 890 (2013).

Beyond the statutorily required questions, see G. L. c. 234, § 28, and limited special circumstances identified in such cases as Commonwealth v. Sanders, 383 Mass. 637, 640-641 (1981) (interracial rape); Commonwealth v. Flebotte, 417 Mass. 348, 355 (1994) (sexual offenses against minors); Commonwealth v. Seguin, 421 Mass. 243, 245-249 (1995) (insanity defense), a trial judge retains broad discretion in determining how a jury will be selected and which questions will be posed to members of the venire.  Reavis, supra at 887-888.  “[A] determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous.”  Commonwealth v. Lopes, 440 Mass. 731, 736 (2004).  In this case, the judge’s decision to forgo asking the jury venire a question specific to their experiences with harassment prevention or restraining orders was neither error nor an abuse of discretion.

3.  Sufficiency of evidence.  The defendant argues that the evidence at trial was insufficient to support his convictions on two counts of witness intimidation because the statements underlying each count could not be construed as either express or implied threats.  This claim is unavailing.

This court applies the Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), standard and considers the evidence in the light most favorable to the Commonwealth to determine whether any rational jury could have found the essential elements of the crime of witness intimidation beyond a reasonable doubt.

In order to prove the defendant guilty of intimidation of a witness in violation of G. L. c. 268, § 13B, the Commonwealth was required to show that the defendant, either directly or indirectly, made a wilful effort to intimidate or harass another person who was a witness or potential witness at any stage of a criminal investigation or proceeding.  See Hrycenko v. Commonwealth, 459 Mass. 503, 507 (2011).

As to the first count of witness intimidation, the victim testified as follows:

“After the cruiser took [the defendant’s son], [the defendant] had told me, do you feel good about letting him spend time with his kids over the weekend?  Do you feel good about yourself?  I better clear up this mess.  He’s going to make my life miserable.  He’s gonna make me lose my job.”

The defendant’s position that these statements were not expressions of an implied threat ignores that “[w]ords do not need to be expressly intimidating, threatening, or harassing” in order to fall within the meaning of intimidation.  Hrycenko, supra at 511.  “The assessment whether the defendant made a threat is not confined to a technical analysis of the precise words uttered[;] . . . the jury may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances.”  Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 613 (2007), quoting from Commonwealth v. Sholley, 432 Mass. 721, 725 (2000), cert. denied, 532 U.S. 980 (2001).

A reasonable jury could interpret the defendant’s comments as threatening the victim in her personal or professional life.  The defendant argues that the most reasonable interpretation of the victim’s testimony was that the defendant’s son would make the defendant’s life miserable and cause the defendant to lose his job.  But, when “the evidence lends itself to several conflicting interpretations, it is the province of the jury to resolve the discrepancy and determine where the truth lies.”  Commonwealth v. Platt, 440 Mass. 396, 401 (2003) (quotation omitted).  Significantly, the victim testified that she understood the defendant’s statements to be a threat, and she responded to those threats by applying for and obtaining a harassment prevention order against the defendant.  We find no reason to disturb the jury’s evaluation of the evidence.

Similarly, sufficient evidence was presented at trial to support the jury’s verdict on the second count of witness intimidation, which occurred at the Fall River District Courthouse.  The victim testified that “[i]n the hallway [of the courthouse, the defendant] had told me that I had to drop the no contact order sometime,” and that the defendant “[was] just staring me down . . . he was there just staring at me, it’s uncomfortable.  It’s intimidating.”  The defendant’s statements to the victim, combined with his “staring [her] down” during the court proceeding, had the effect of intimidating the victim.  Furthermore, the defendant’s actions all occurred while the victim was attending a court proceeding arising from criminal charges against the defendant’s son for a property crime of which she was the victim.  When considering “[t]he place, time, and circumstances” of the defendant’s actions, see Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 800-801 (1998), we conclude that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  Latimore, supra at 677 (quotation omitted).

Judgments affirmed.

Full-text Opinions

LENK, J. (dissenting, with whom Duffly and Hines, JJ., join).  The architects of art. 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution had in mind only searches of physical places and seizures of physical objects.  Transposing these protections to digital contexts is an ongoing and challenging task, as the matter before us only underscores.  I disagree with the court’s resolution of the issues presented here.  In my view, the search of the photograph files on the defendant’s Apple iPhone “smart” cellular telephone was not supported by probable cause, and the warrant authorizing that search was not sufficiently particular.  Furthermore, even had there been probable cause to support a search of the photograph files, the photographs seized by the police appear to have been outside the permissible scope of the warrant.  I write separately for these reasons, and also to express my concern about the future direction of our search and seizure law in a digital context.

In an increasingly digital world, we continue to lean heavily on analogies between digital media and physical spaces and objects, such as that between a computer and a closed container.  See, e.g., Commonwealth v. McDermott, 448 Mass. 750, 771-772, cert. denied, 552 U.S. 910 (2007) (McDermott).  In reality, however, searches of physical spaces for physical objects are akin to searches of digital media for digital information much in the way that “a ride on horseback” resembles “a flight to the moon.”  Riley v. California, 134 S. Ct. 2473, 2488 (2014) (Riley).  As a result, if we are to preserve the values that art. 14 and the Fourth Amendment seek to protect, we must view more critically our reliance on physical analogs, which may hamper rather than enhance our analyses; we also must be amenable to considering new paradigms that may advance our thinking.  See generally Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011).

1.  Probable cause.  Probable cause requires “a ‘substantial basis’ . . . for concluding that ‘the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched’” (citation omitted).  Commonwealth v. Kaupp, 453 Mass. 102, 110 (2009) (Kaupp).  The digital media at issue in this case,[18] however, do not fit neatly within this framework.  What was the “place” to be searched — the defendant’s iPhone as a whole?  Or only certain parts of it?  And what were the “items” to be seized — categories of files?  Or were they certain files, perhaps specific photographs of evidentiary value?  See Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 551-557 (2005) (Kerr, Digital World) (discussing meaning of digital “search”).  See generally Kerr, Executing Warrants for Digital Evidence:  The Case for Use Restrictions on Nonresponsive Data, Tex. Tech L. Rev. (forthcoming) (on pages 23-28 of manuscript, discussing meaning of digital “seizure”).

As the court acknowledges, the warrant at issue here does not provide easy answers to these questions.  Ante atnote 3.  The property that the warrant authorized the police to search for and seize consisted principally of enumerated categories of files, including “saved and deleted photographs.”[19]  The warrant stated that these files were located “on an Apple iPhone” described by its physical appearance, which itself was situated at the Boston police department building in the Hyde Park section of Boston.  Yet the warrant also incorporated by reference an affidavit that appeared to envision a broader, content-based search of the device.  The affidavit concluded that probable cause existed to believe the defendant’s iPhone contained “valuable information” linking the defendant and his interlocutor to the crime.

Given this lack of clarity, the court correctly determines that the warrant for the iPhone describes the place to be searched as the physical device itself, and the items to be seized as the categories of files that it lists.  See ante at note 3.  The court incorrectly holds, however, that there was probable cause to search the entire set of photograph files on the defendant’s iPhone.  In my view, there was not a substantial basis for concluding that the entire set of the defendant’s photograph files, rather than just the subset of photograph files attached to the defendant’s text and multimedia messages, was related to the criminal activity under investigation.[20]

An affidavit in support of a search warrant must be read “in an ordinary, commonsense manner, without hypertechnical analysis.”  See Commonwealth v. Cruz, 430 Mass. 838, 840 (2000), and cases cited.  This principle applies even where a search ventures into the vast store of private information available on a device like an iPhone.  The probable cause analysis is limited to “the facts recited in the affidavit and any reasonable inferences therefrom.”  Kaupp, supra at 107, citing Commonwealth v. Allen, 406 Mass. 575, 578 (1990).

Read in an ordinary, commonsense manner, and without resorting to hypertechnical analysis, the facts in the affidavit and the reasonable inferences to be drawn from them did not provide probable cause to search the entire set of the defendant’s photograph files.  In addition to recounting other facts concerning the shooting, the affidavit reported, based on the statements of three individuals, that the defendant had been receiving threatening telephone calls and text messages, and that he had been arguing on the telephone shortly before the shooting.  This information provided probable cause to believe only that the iPhone’s files pertaining to calls and text messages would offer evidence of communications linking the defendant to the shooting.  The iPhone’s lists of incoming, outgoing, and missed calls could have shed light on the identities of the individuals threatening the defendant and arguing with him.  Its text message files could have provided similar information, and also could have revealed the content of some threats made against the defendant.  According to the forensic expert, extraction of the text message files also would have retrieved any photographs attached to those messages, see ante at note 15, and the defendant has no quarrel with that fact.

What the affidavit did not provide was reason to believe that the iPhone’s entire set of photograph files, as opposed to only those photograph files attached to calls or text messages, would present evidence related to the shooting.  In the abstract, I do not disagree with the court’s statement that “[c]ommunications can come in many forms including photographic.”  Ante at     .  Nor, apparently, does the defendant.  A photograph depicting a severed horse’s head, for instance, might well be used to communicate a threat (in the mode of “The Godfather” novel and motion picture).  But the hypothetical viability of communication by photographic suggestion, even had it been mentioned in the affidavit, would not have supported a reasonable, commonsensical inference that a search of the defendant’s entire set of photograph files was needed to produce the subset of photographs that might at some point have been communicated.

The court reasons that, if a photograph file attached to a text message had been deleted and overwritten by new data, access to the entire set of photograph files on the iPhone might be necessary for a forensic investigator to find another copy of that specific file on the device.  Ante at     .  As the court notes, however, there is no argument that the photographs at issue here were “received, taken, or stored long before the events leading up to the shooting” — the situation in which, in the ordinary course, photographs that had been attached to text messages would have been most likely to have been deleted and overwritten by new data.[21]  See ante at note 17.

In sum, the information presented to the magistrate did not create even a “[s]trong reason to suspect” that the entire set of photograph files on the defendant’s iPhone were related to the criminal activity being investigated, much less a “substantial basis” for such a belief (citations omitted).  See Kaupp, supra at 110-111, and cases cited.  The search of those files was not supported by probable cause, and consequently it was unconstitutional.[22]

While there was surely probable cause to believe that there was evidence of the communications described in the affidavit somewhere within the defendant’s iPhone, the essence of the United States Supreme Court’s decision in Riley, supra, was that such devices cannot be treated like ordinary containers.  This is because “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” Riley, supra at 2491.  In one commentator’s words, “limiting a search to a particular computer is something like . . . limiting a search to the entire city.”  Kerr, Digital Evidence and the New Criminal Procedure, 105 Colum. L. Rev. 279, 303 (2005).

We must not be taken in by the shape and size of a device that permits access to massive stores of information of different kinds.  Where possible – recognizing that it not always is – it may be best to treat such a device more like a city than like a packing crate.  Here, there was no impediment to limiting the search to certain types and categories of files stored in specific sections of the iPhone’s data storage.  Because there was no substantial basis for believing that the entire set of photograph files on the defendant’s iPhone contained evidence related to the shooting, that portion of the iPhone should not have been included in the “place” to be searched.

2.  Particularity.  Article 14 and the Fourth Amendment also require that a warrant identify with particularity the place to be searched and the items to be seized.  The requisite particularity, however, was not present in this case.[23]

Read commonsensically, the affidavit and warrant both envisioned a general search of the entire iPhone, rather than a targeted search for certain types of communications.  Based on the facts it presents, the affidavit draws the general conclusion that the defendant’s iPhone “contains valuable information that will link the [defendant] and [another person] to the crime.”  The affidavit proceeds to explain that, accordingly, permission is being sought to search the iPhone for a wide variety of categories of files.  Several of these, such as the defendant’s “[s]peed dial list,” “[p]hone configuration information and settings,” and “[m]obile Internet browser,” were most unlikely to contain any evidence of the criminal activity under investigation.  The warrant, in turn, authorized the seizure of most of the categories of files on the defendant’s iPhone, including all “saved and deleted photographs.”^[24]

Allowing the police to search a broad variety of categories of files, many of which were at most tangentially related to the communications described in the affidavit, was an “end run” around the particularity requirement.  Particularity should mean more than just a general directive to the police to look until they find something.

Creating particularized limitations beforehand for a search of a device capable of storing hundreds of thousands of files is difficult.  But it is not impossible.  As the court acknowledges, current search technology already allows forensic examiners to pinpoint their searches.  Ante at     .  Accordingly, the warrant could have limited the search only to the iPhone’s call records and text message files — the categories of files most likely to provide evidence of the “threatening phone calls and threatening text messages” that preceded the shooting.[25]  The warrant also could have limited the search of any images files temporally to include only images stored on the device in the days or weeks leading up to the shooting.  Compare United States v. Winn, 79 F. Supp. 3d 904, 921 (S.D. Ill. 2015) (“Most importantly, the warrant should have specified the relevant time frame”).  Restrictions of this sort would prevent forensic investigators from exercising greater discretion than art. 14 and the Fourth Amendment allow.  As the United States Supreme Court noted in Riley, supra at 2495, the fact that technology now enables an individual to store huge sums of information in his or her pocket “does not make the information any less worthy of the protection for which the Founders fought.”

3.  Scope of the search.  Finally, the photographs that the defendant seeks to suppress do not seem to have been within the scope of the search that the court deems permissible.  Two of the four photographs at issue apparently show the defendant in possession of a gun, and two show him wearing a green jacket.  It is possible that these images provided some measure of support for the inference that the defendant had participated in the shooting, since witnesses had seen one of the shooters wearing a green shirt or jacket.  See ante at     .  The photographs were not, however, the kind of evidence that the police were (according to the court) permitted to be searching for – namely, communications relating to the shooting.

The court accordingly devises the hypothesis that the contested photographs “could well have been sent as a threatening communication to the person or persons who had apparently been threatening [the defendant].”  Ante at     .  This hypothesis is implausible.  The court’s theory is not rooted in an evaluation of the photographs, given that they are not part of the record before us.  The Commonwealth, having examined the photographs, has not suggested that they constituted, singly or together, a “threatening communication” made by the defendant to anyone.  Nor does the available information support such an interpretation.

The affidavit described three interviews concerning the communications for which, on the court’s view, the warrant authorized a search.  According to the first interview, the defendant “received a [tele]phone call and started arguing with the caller on the [tele]phone,” and “left the apartment still arguing with the caller” shortly before the shooting took place.  According to the second interview, the defendant “was receiving threatening [tele]phone calls and threatening text messages on his [tele]phone.”  According to the third interview, the defendant had “been getting a lot of telephone threats because he owe[d] money to people.”

These interviews do not support the view that the photographs in question were included in the communications described.  The first interview clearly described a telephone call rather than an exchange of picture messages.  While the second and third interviews did not rule out the possibility that the threats described were communicated in photographs, both interviews specified that the threats were received, not sent.  Nothing in the affidavit suggests that the defendant was using photographs of himself to threaten others.  Moreover, even if the two photographs of the defendant holding a gun were intended as a threat, it strains credulity to assert that photographs of the defendant wearing a green jacket had a similar purpose.  In sum, I question whether the forensic investigators reasonably could have understood the photographs at issue to be communications related to the shooting.  By extension, the photographs would not be ones that the investigators were, on the court’s analysis, permitted to seize.

A corresponding flaw occurring in a physical search could have been cured by the “plain view” doctrine, according to which, “if officers, in the course of conducting a lawful search, discover evidence in plain view, such evidence may be seized.”  See McDermott, supra at 777, citing United States v. Gray, 78 F. Supp. 2d 524, 528 (E.D. Va. 1999).  Yet, recognizing that “the application of that doctrine to digital file searches may, at times, need to be limited,” ante at note 16, and sources cited, the court resists wholesale importation of the plain view doctrine into the current context.

There is good reason for the court’s caution on this score. Although the search at issue in this case was, according to the court, limited to “evidence of communications that would link the defendant and another person to the shooting,” ante at note 3, the plain view doctrine would render that constraint meaningless, given that “there is no conceivable way” to detect whether a picture is relevant evidence without first looking at it.  See ante at     .

It is an open question whether application of the plain view doctrine to searches of digital media would undermine the constitutional prohibition on general searches.[26]  This court applied the plain view doctrine to a search of computer files in McDermott, supra at 777.  More recently, however, the court expressed concern that a search of digital files could be “joined with the plain view doctrine to enable the Commonwealth to use against defendants inculpatory evidence . . . even though such evidence may not actually fit within the scope of the search warrants obtained.”  Preventive Med. Assocs. v. Commonwealth, 465 Mass. 810, 831-832 (2013) (Preventive Med. Assocs.).  This prospect is worrisome because searches of digital information tend to require law enforcement to delve into, and carefully sift through, large stores of data.  See United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176-1177 (9th Cir. 2010).  The result is that “rules created to prevent general searches for physical evidence may result in the equivalent of general searches for digital evidence.”  Kerr, Digital World, supra at 566.

In Preventive Med. Assocs., supra at 832, this court elected to “leave for another day the question whether use of the plain view doctrine as a justification for admission of evidence should be precluded or at least narrowed in the context of searches for electronic records.”  While not today, the day when the court will be called upon to determine more precisely when and how the plain view exception applies to digital searches is likely close at hand.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

13-P-1848                                       Appeals Court

SUSAN M. AMARAL  vs.  SEEKONK GRAND PRIX CORP.

No. 13-P-1848.

Bristol.     October 6, 2014. – January 14, 2016.

Present:  Cypher, Grainger, & Maldonado, JJ.

Negligence, One owning or controlling real estate.

Civil action commenced in the Superior Court Department on May 2, 2012.

The case was heard by Richard T. Moses, J., on a motion for summary judgment.

Melody A. Alger for plaintiff.

Jacqueline L. Allen for the defendant.

MALDONADO, J.  The Massachusetts recreational use statute[1]  provides that those who make their land available to the public for “recreational . . . purposes without imposing a charge or fee therefor, . . . shall not be liable for personal injuries . . . sustained by such members of the public . . . in the absence of wilful, wanton, or reckless conduct by [the landowner].”  G. L. c. 21, § 17C(a), as appearing in St. 1998, c. 268.  In this case, we are asked whether the statute bars a claim of negligence asserted by a mother (the plaintiff) who was injured by an errant “go-cart” while watching her sons drive go-carts at the defendant’s recreational facility.  The facility does not charge an admission onto the grounds but sells tickets for its rides, and the plaintiff had purchased tickets for use by her sons.  We conclude that the statute does not bar relief for injuries caused by negligence in these circumstances.

Background.  Seekonk Grand Prix Corp.[2] (Grand Prix) is a Massachusetts corporation that operates a commercial recreational facility offering, among other activities, go-cart races.  Grand Prix charges a fee for the go-carts, miniature golf, bumper cars, and other similar activities.  It does not charge a fee to watch these activities, nor does it charge a fee to enter the facility.

On May 25, 2009, the plaintiff took her two sons, ages eleven and thirteen years of age, to Grand Prix’s facility.  She purchased six tickets for her sons’ use.  At the time of the injury, she was standing behind a chain link fence as she watched her sons drive the go-carts.  After the other drivers had returned to the station, a go-cart driven by a young girl went through the fence and struck the plaintiff, causing a number of injuries, including a pulmonary embolism that resulted from a blood clot in her left leg.

The plaintiff filed a negligence action against Grand Prix in the Superior Court.  A judge of that court granted Grand Prix’s motion for summary judgment based on the recreational use statute, citing case law indicating that the statute provides immunity from liability when a landowner does not impose a charge or fee for an injured plaintiff’s recreational use of the land.  See Seich v. Canton, 426 Mass. 84, 85-86 (1997); Whooley v. Commonwealth, 57 Mass. App. Ct. 909, 910 (2003).  Contrast Marcus v. Newton, 462 Mass. 148, 155 (2012);.  The judge concluded that Grand Prix was entitled to immunity from liability under the statute because the plaintiff was using the facility in a recreational capacity as a spectator and the facility did not charge the plaintiff or other members of the public for this particular recreational use of the property.

Discussion.  1.  Standard of review.  “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.”  Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).  See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).  Although “[n]egligence cases are not frequently resolved by summary judgment, . . . a judge may decide the issue as a matter of law . . . where[, as here,] the defendant offers a statutory exemption from liability as an affirmative defense.”  Patterson v. Christ Church in the City of Boston, 85 Mass. App. Ct. 157, 159 (2014) (quotation and citation omitted).  Our review is de novo.  See American Intl. Ins. Co. v. Robert Seuffer GmbH & Co. KG, 468 Mass. 109, 113, cert. denied, 135 S. Ct. 871 (2014).

2.  Recreational use statute.  The statute states, in relevant part:

“(a) Any person having an interest in land . . . who lawfully permits the public to use such land for recreational . . . purposes without imposing a charge or fee therefor . . . shall not be liable for personal injuries . . . sustained by such members of the public . . . in the absence of wilful, wanton, or reckless conduct^[[3]] by such person. . . .

“(b) The liability of any person who imposes a charge or fee for the use of his land by the public for the purposes described in subsection (a) shall not be limited by any provision of this section.  For the purposes of this section, ‘person’ . . . shall include, without limitation, . . . [a] corporation, company or other business organization . . . .”

G. L. c. 21, § 17C, as appearing in St. 2008, c. 513.  The statute “grants an exemption from liability for ordinary negligence where [1] a defendant has an interest in land, [2] the plaintiff was injured when engaged in a recreational activity on that land, and [3] the defendant did not ‘impos[e] a charge or fee’ for the injured plaintiff’s use of the land.”  Patterson, supra at 160 (citation omitted).  As the plaintiff only challenges the second and third factors, we focus our discussion on them.

3.  Recreational activity and imposing a fee.  We begin by noting that the statute does not define the term “recreation” and that our cases have not definitively addressed the extent to which it may include watching others engaged in a recreational activity.[4]  We further note that although the Supreme Judicial Court commented in Seich, 426 Mass. at 85 n.4, that “the Appeals Court [in Catanzarite v. Springfield, 32 Mass. App. Ct. 967, 967 (1992),] has construed the term ‘recreation’ to include . . . ‘passive pursuits, such as watching baseball,’” the Supreme Judicial Court prefaced this remark by stating that it had “never defined the term.”  Thus, even though the Supreme Judicial Court has cited the dicta in Catanzarite, it has done so “in a manner that leaves in some doubt its own views of the principle.”  Nantasket Beachfront Condominiums, LLC v. Hull Redev. Authy., 87 Mass. App. Ct. 455, 464 n.13 (2015).

We need not decide, however, whether entering land for the sole purpose of watching others engaged in a recreational activity itself qualifies as recreation under the statute.  The circumstances of this case involve a parent who accompanied minor children, purchased their tickets, and remained to supervise them.  As a parent, the plaintiff was using the facility for the recreation of her children, and she paid for that use by purchasing tickets.  Grand Prix could fully anticipate that a parent accompanying minor children and paying a fee on their behalf would qualify as a paying customer under the statute.  Otherwise stated, Grand Prix collected, and the plaintiff paid, a fee for her particular use of the land.  See G. L. c. 21, § 17C(b).[5]  In these circumstances, application of the statute’s immunity provision “would undermine the very purpose of the statute:  to encourage landowners to permit broad, public, free use of land for recreational purposes by limiting their obligations to lawful visitors under the common law” (emphasis supplied).  Ali v. Boston, 441 Mass. 233, 238 (2004).

Conclusion.  Because the plaintiff was charged a fee for her particular use of the land, summary judgment was not appropriate.[6]  The judgment is vacated and the case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-11886

CARA RINTALA  vs.  COMMONWEALTH.

January 14, 2016.

Homicide.  Practice, Criminal, Indictment, Double jeopardy.  Constitutional Law, Double jeopardy.  Supreme Judicial Court, Superintendence of inferior courts.

Cara Rintala appeals from a judgment of a single justice of this court denying her petition for relief under G. L. c. 211, § 3.  Rintala has been charged with murder in the first degree in the death of her wife.  Two jury trials on this charge have taken place in the Superior Court, each ending in a mistrial after the jury were unable to reach a unanimous verdict.  After the second trial, Rintala moved to dismiss the indictment on the ground that retrial was barred by double jeopardy principles because the evidence presented at her second trial was insufficient to warrant a conviction.  The judge, who had presided at both trials, denied the motion.  Rintala’s G. L. c. 211, § 3, petition followed.  We affirm the judgment.

We have reviewed the record, including the transcript of the second trial, in the light most favorable to the Commonwealth.  See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).  Without detailing the evidence that was presented over numerous days of trial, we agree with the single justice that the evidence against Rintala was sufficient to permit the jury to conclude that she strangled the victim in the basement of their house.  Based on the state of the victim’s body at the time she was found by first responders, the testimony of the Commonwealth’s medical expert, the activity on the victim’s cellular telephone (and the abrupt stoppage thereof), and Rintala’s own statements, the jury could rationally conclude that, at the time that the victim was killed, she and Rintala were the only adults in the house.  There was also evidence suggestive of an attempt to compromise the crime scene shortly before first responders arrived, of a tumultuous relationship between Rintala and the victim, and of Rintala’s consciousness of guilt.  Because the evidence was sufficient to warrant a conviction, Rintala may be retried without violating her rights against being subjected to double jeopardy.  The single justice neither erred nor abused her discretion by denying relief.

Judgment affirmed.

David P. Hoose for the petitioner.

Steven E. Gagne, Assistant District Attorney (Jennifer H. Suhl with him) for the Commonwealth.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-11683

SJC-11937

COMMONWEALTH  vs.  RONALD C. DAME.

Worcester.     November 6, 2015. – February 3, 2016.

Present:  Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.

Homicide.  Constitutional Law, Delay in commencement of prosecution, Search and seizure, Probable cause.  Due Process of Law, Delay in commencement of prosecution.  Deoxyribonucleic Acid.  Probable Cause.  Search and Seizure, Motor vehicle, Probable cause.  Practice, Criminal, Capital case, Indictment, Delay in commencement of prosecution, Motion to suppress, Harmless error, Execution of sentence, Sentence.  Error, Harmless.

Indictment found and returned in the Superior Court Department on November 20, 2006.

A motion to dismiss was heard by James R. Lemire, J.; a pretrial motion to suppress evidence was heard by Peter W. Agnes, Jr., J.; and the case was tried before Richard T. Tucker, J.

A motion for a stay of sentence filed in the Supreme Judicial Court was referred to Spina, J., and was considered by him.

Theodore F. Riordan (Deborah Bates Riordan with him) for the defendant.

Donna-Marie Haran, Assistant District Attorney, the Commonwealth.

CORDY, J.  Clara Provost (victim) was brutally murdered in the bedroom of her apartment sometime after 10:30 P.M. on January 6 or early in the morning hours of January 7, 1974.  The subsequent police investigation focused on several potential suspects.  A year of investigation produced a circumstantial but not very strong case against the defendant, including a brief prior dating relationship with the victim that apparently ended badly; a flawed alibi; fresh scratches on his face; and a handprint on the outside of the door through which the murderer forced entry into the apartment.[1]  No one was indicted for the murder, and the investigation became largely dormant.[2]

During the murder investigation in 1974, however, tissue was taken from under the fingernails of both hands of the victim and preserved.  More than twenty-five years later, analysis of this evidence proved decisive in the decision to prosecute the case.  As increasingly advanced methods of deoxyribonucleic acid (DNA) analysis became more reliable, accurate, and accepted as evidence admissible in Massachusetts proceedings, Commonwealth v. Vao Sok, 425 Mass. 787, 789 (1997) (finding reliable and approving polymerase chain reaction analysis), a new era of investigation commenced.  The samples that had been preserved were analyzed and swabs were taken from the previously identified potential suspects.  The analysis identified the tissue that contained DNA as consistent with the defendant’s DNA and inconsistent with the DNA of the other suspects.  This evidence, combined with the fresh scratches observed (and photographed) by the police on the defendant’s face when he was interviewed the day after the murder in January, 1974, led to his indictment on November 20, 2006, and ultimately his conviction on February 24, 2012, of murder in the first degree on the theory of extreme atrocity or cruelty.[3]

The defendant raises several claims on appeal.  First, he challenges the denial of his pretrial motion to dismiss the murder indictment on the ground that the Commonwealth recklessly or negligently delayed indicting him for thirty-two years, prejudicing his defense.  Second, he claims error in the denial of his motion to suppress evidence of a paper towel that the police seized from his vehicle without probable cause to believe that evidence of the crime would be found in there.  Finally, the defendant requests relief under G. L. c. 278, § 33E.

Just before he filed his appellate brief with this court, the defendant filed a motion to stay the execution of his sentence.  The motion was referred by the full court to the single justice, who denied it.  The defendant’s appeal from the denial of this motion was consolidated with his direct appeal.

Although we agree that the paper towel should have been suppressed,[4] we affirm the defendant’s conviction, as well as the denial of his motion to stay the execution of his sentence.  After a review of the record, we also decline to grant relief pursuant to G. L. c. 278, § 33E.

1.  Background.  We summarize the facts the jury could have found, reserving discussion of other evidence to our consideration of the legal issues raised.

The victim was twenty-three years old at the time of her death.  She lived with her three and one-half year old son in the first-floor apartment of a multifamily residence at 30 Lunenburg Street in Fitchburg.  The victim’s parents, her brother, and three of her sisters lived in the second-floor apartment, which had a separate entrance off 13 Highland Avenue.

In late November 1973, the defendant met the victim at a country-western club.  Shortly thereafter, the defendant took the victim on a date, at which time he engaged in oral sexual relations with her.  They may have gone on at least one other date.  After Thanksgiving and until the time of her murder, however, the victim began a regular dating relationship with another man, Gerard Duhaime, a soldier stationed at Fort Devens.

On Saturday, January 5, 1974, the victim and her sister Beatrice were walking to a local bar about five minutes from their residence when they saw the defendant drive by them very slowly.  The victim’s demeanor changed after this encounter; she had previously been very excited about going out with her sister.  After arriving at the bar, the victim realized she had forgotten her driver’s license and returned home alone to retrieve it.  Her sister Sheila, who was at the victim’s apartment taking care of the victim’s son, testified that the victim returned to her apartment “in a rush,” grabbed her driver’s license on the table, and left.  Beatrice testified that the victim took an unusually long time, more than one-half hour, to return to the bar, and when she returned it was as if “she was in another world.  She wouldn’t even talk.”

On Sunday, January 6, 1974, the victim spent the day with her son and Sheila.  Sheila left the victim’s apartment at around 6 P.M.  The victim asked Sheila to unlock the door downstairs for her boy friend, Duhaime, who was coming later that night.  Duhaime was at the victim’s apartment from approximately 7:30 P.M. to 10:30 P.M.  He made sure the door was locked when he left.

On the way to his vehicle, Duhaime noticed a man sitting in a dark pick-up truck with the engine running, staring at him.  Duhaime made eye contact with the man a few times and the encounter made him “very uncomfortable” and “kind of nervous.”  As Duhaime drove away in his vehicle, the truck followed him at a close distance with its headlights on, but turned off shortly thereafter.  After the victim’s murder, the police showed Duhaime the defendant’s photograph.  Duhaime said that the defendant’s eyes reminded him of the same eyes, with “that same cold, mean look,” he saw when he was leaving the victim’s apartment on January 6.

That same evening, shortly after midnight, Steven Svolis was driving his vehicle in the area of Lunenburg Street when he saw a man jumping over the wall between the victim’s apartment building and the building next to it.  Svolis described the man as being tall and thin, and having long straight hair on the top, which was consistent with Dame’s appearance.  The man was wearing a suede coat with sheepskin lining that was a “car-coat length,” dark pants, light socks, and dark shoes.[5]

     On January 6, 1974, Colleen Regan, a young woman who had been regularly dating the defendant since the prior year, told the defendant that she had plans to go on a date with another man that night.  The defendant was upset about the date and went to her house to see if she would change her mind.  Regan told the defendant she was going to go on the date, and he told her he would be at the Eastwood Club that evening.  A few days later, Regan saw the defendant and observed that he had scratches on his face that were not there when she saw him on January 6.

On January 7, 1974, the victim was found lying on her bed, naked from the waist down.  Blood was pooling on her bed.  Her head was wedged between the headboard and the mattress and her throat had been severely slashed.  During his examination of the crime scene, a State police trooper observed a smeared bloody handprint on the victim’s left inner thigh.  He also observed that the door to the victim’s apartment had been forced open, with the latch broken.  Other police officers found “some pieces of paper towel” on the floor in front of the stove.  No usable fingerprints, besides those of the victim, were found in the apartment.  On the front door, however, a palm print and three latent prints that matched the defendant’s fingerprints were found slightly above the broken latch.  Scrapings from under the victim’s fingernails from both hands were preserved because they contained human blood and skin tissue.

Later that day, the Fitchburg police interviewed the defendant.  There were several scratches on the defendant’s left cheek, which were then photographed.  During the interview, the police went outside to the defendant’s vehicle, opened the rear door, and retrieved a paper towel from the back seat area.  Sperm cells were later detected on the paper towel that was found in the defendant’s vehicle.  The defendant was subsequently interviewed by the police multiple times in January, 1974.  No one was charged with the victim’s murder.[6]

More than twenty-five years later, on December 1, 1999, a chemist at the State police crime laboratory sent samples from the paper towel found in the defendant’s vehicle and from the fingernail scrapings to the Federal Bureau of Investigation (FBI) for DNA testing.  Between 2000 and 2006, the police obtained DNA from the defendant, Duhaime, and George Dunton.[7]

The DNA samples were further tested by a DNA analyst in the State police crime laboratory in 2007 using more sophisticated analytical techniques.  A DNA profile was created for each of the three men.  The fingernail scrapings from the victim’s right hand contained a single source male profile which “matched the DNA profile” from the defendant such that the defendant could not be excluded as a contributor to the sample.  Dunton and Duhaime were excluded as potential sources of DNA present in the fingernail scrapings.  Based on standard DNA testing, the probability of a randomly selected unrelated person having contributed DNA to this mixture was approximately one in 5,227 of the Caucasian population.[8]  Based on the more advanced short tandem repeat of the Y chromosome testing on the fingernail scrapings,[9]^,[10] the defendant’s profile would not have been expected to occur more frequently than one in 2.2 million unrelated Caucasian males.[11]

As for the paper towel seized from the defendant’s vehicle, the nonsperm fraction contained a mixture of DNA from more than one source, and the defendant matched the major male profile in that DNA mixture.  The probability of a randomly selected individual unrelated to the defendant having a DNA profile matching that obtained from the nonsperm fraction was approximately one in 27.8 million of the Caucasian population.

At trial, the defendant denied that he broke into the victim’s apartment and murdered her.  He testified that during the night of the murder he was at the house of his sister, Theresa LaPlume, from about 7 P.M. until approximately midnight, and then went directly to his home.  The defendant testified that his niece scratched his face while he was at his sister’s house.  LaPlume died in 1993.  In rebuttal, the Commonwealth called Robert Powers, who testified that he saw the defendant at the Eastwood Club on January 6, 1974.  Specifically, Powers testified that he, his children, and his wife were at the club from approximately 7:30 P.M. to 9 or 9:30 P.M., and that during that time the defendant spoke with his wife.  He also testified that the defendant was still at the club when he and his family left.

2.  Motion to dismiss.  On appeal, the defendant argues that the judge erred in denying his motion to dismiss the indictment because of preindictment delay by the Commonwealth.  The defendant contends that the thirty-two year delay between the victim’s murder and the return of the indictment against him prejudiced his defense to a degree constituting a violation of his due process rights.  The crux of the defendant’s argument is that his alibi witness, his sister, died in 1993 and was therefore unable to testify in his defense, and that the Commonwealth was “reckless and/or negligent” in failing to charge him when she was still alive.

Due process principles intrinsic to the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights protect putative defendants from preindictment delays by the government that are intentional and prejudicial.  Commonwealth v. Dixon, 458 Mass. 446, 458 (2010), citing United States v. Lovasco, 431 U.S. 783, 789 (1977) (“Due Process Clause has a limited role to play in protecting against oppressive delay”).  A defendant seeking dismissal of an indictment due to preindictment delay “must demonstrate that he suffered substantial, actual prejudice to his defense, and that the delay was intentionally or recklessly caused by the government.”  Commonwealth v. George, 430 Mass. 276, 281 (1999), and cases cited.  “[T]he burden of establishing the constitutional violation is a heavy one.”  Commonwealth v. Best, 381 Mass. 472, 484 (1980).  The motion judge denied the motion on the ground that the defendant had not established either substantial actual prejudice or that the delay was intentionally or recklessly caused by the Commonwealth.  We agree with the judge’s findings.

a.  Prejudice.  ”The primary purpose of preindictment due process analysis is to assess prejudice to the defendant’s ability to mount a defense.”  King v. Commonwealth, 442 Mass. 1043, 1044 (2004), quoting Commonwealth v. Imbruglia, 377 Mass. 682, 691 (1979).  Although the preindictment delay surely caused some prejudice to the defendant’s case, the circumstances do not give rise to the “severe prejudice” that would require the “drastic remedy” of dismissal of the indictment (citation omitted).  Commonwealth v. Fayerweather, 406 Mass. 78, 87 (1989).

The defendant claims that LaPlume’s testimony would have corroborated his alibi that he was at her home from approximately 7 P.M. to until shortly after midnight on the evening of the murder, and that she would have testified that her daughter, the defendant’s niece, scratched his face, providing an explanation for how the defendant’s face was scratched that evening.  The defendant claims that LaPlume’s absence at trial was irremediable because, although he could testify himself as to his alibi, his testimony would have been bolstered by LaPlume’s testimony.

     We disagree with the defendant’s assertion that the loss of LaPlume’s testimony caused severe prejudice.  First, LaPlume’s report to the police that the defendant arrived at her home on the night of the murder between 6:30 P.M. and 7 P.M. was contradicted by other noninterested witnesses who told the police that the defendant was at the Eastwood Club that night.  One of those witnesses, Powers, told the police in January, 1974, and testified at trial that he saw the defendant at the Eastwood Club on January 6, 1974, from 7:30 P.M. until approximately 9 or 9:30 P.M.[12]^,[13]  In addition, during the investigation, LaPlume’s husband contradicted LaPlume’s report by telling the police that he left his house around 7:30 P.M. on the night of the victim’s murder and that the defendant was not at the home.  Regan, who was dating the defendant at the time of the victim’s murder, also testified that the defendant had told her at 6 P.M. that night that he would be at the Eastwood Club.  Given these facts, we cannot conclude that LaPlume’s testimony would have significantly aided the defendant’s defense.

In addition to the reports contradicting LaPlume’s statements about the defendant’s whereabouts on the night of the murder, “[c]ommon sense and the case law dictate that the testimony of a blood relative of the defendant is inherently less credible than the testimony of other witnesses.”  Commonwealth v. Thomas, 429 Mass. 146, 153 (1999).[14]  Here, where LaPlume’s testimony would have been contradicted at trial by unrelated parties, we cannot conclude that her testimony would have been so powerful as to exculpate the defendant.[15]  Additionally, the defendant was able to pursue his alibi defense through his own testimony at trial.[16]

Finally, “[t]he likelihood that the loss was prejudicial is eased by the reliability of the evidence presented by the government” (citation omitted).  Imbruglia, 377 Mass. at 689.  Here, the Commonwealth presented ample evidence from which the jury could find that the defendant murdered the victim, including the defendant’s handprint on the door broken into by the killer; a photograph of the scratches on the defendant’s face that Regan testified were not there when she last saw him earlier in the evening of January 6, 1974; and the DNA analysis comparing the defendant’s DNA with that present in the blood and tissue scrapings taken from under the victim’s fingernails.

Thus, the defendant has not shown that LaPlume’s statements would have significantly aided his defense, see Lovasco, 431 U.S. at 783 (“every delay-caused detriment to a defendant’s case should [not] abort a criminal prosecution”), and has failed to meet his burden of showing substantial actual prejudice to his defense as a result of preindictment delay.[17]

b.  Recklessness.  Dismissal of an indictment is only required where a defendant makes a persuasive showing of both actual prejudice and intentional or reckless conduct by the government that caused the delay.  See Imbruglia, 377 Mass. at 691, citing Lovasco, 431 U.S. at 790 (“Proof of prejudice is a necessary, but not sufficient element of a due process claim”).  Here, where the defendant concedes that the delay was not intentional, we focus our analysis on whether the preindictment delay was “incurred in reckless disregard of known risks to the putative defendant’s ability to mount a defense” such that dismissal is warranted.  Imbruglia, supra.  Although this case involves a considerable passage of time between the murder and the indictment, the defendant points to no facts in the record, nor do we discern any, that suggest recklessness by the Commonwealth in investigating the murder or bringing the indictments.  Instead, the defendant merely states that “[t]he delay was reckless.”  Such a conclusory statement will not suffice to meet the defendant’s heavy burden of proving a constitutional deprivation.  Commonwealth v. Ridge, 455 Mass. 307, 332 (2009), quoting Best, 381 Mass. at 484.

From our review of the record, it is apparent that the Commonwealth investigated at least one other potential suspect in the 1980s, and followed up on DNA testing as it became more widely available and approved as admissible evidence in the late 1990s.  The defendant contends that the fact that the results of the initial DNA testing done by the FBI were returned to the State police crime laboratory in 2001 belies the Commonwealth’s contention that the DNA evidence is what motivated it to seek the indictment against the defendant in 2006.  To the contrary, after the initial DNA testing by the FBI, the Commonwealth reinvestigated the other potential suspects, took additional saliva samples, and retested the DNA samples using more advanced techniques as they became available.  These facts do not support a finding of recklessness.  See Lovasco, 431 U.S. at 791-792 (declining to adopt rule requiring government to file charges once probable cause has been established or once government has “assembled sufficient evidence to prove guilt beyond a reasonable doubt”).[18]

The defendant also urges the court to depart from our holding in Imbruglia and conclude that a negligent delay may constitute a due process violation requiring dismissal of an indictment.  We decline to do so.  We recognize that negligent preindictment delay may amount to a constitutional violation in some cases, see, e.g., Howell v. Barker, 904 F.2d 889, 895 (4th Cir.), cert. denied, 498 U.S. 1016 (1990); however, such circumstances are not present here.  Moreover, there is no reason to revisit our established rule where the defendant has otherwise failed to make the requisite showing of actual prejudice to his defense and is therefore not entitled to a dismissal of the murder indictment against him.  We accordingly affirm the denial of the defendant’s motion to dismiss the indictment for preindictment delay.

3.  Motion to suppress motor vehicle search.  The defendant also appeals from the denial of his motion to suppress paper towel evidence seized from his motor vehicle.  The defendant concedes that the police had probable cause to believe he murdered the victim at the time his motor vehicle was searched.  He argues, however, that the motion was wrongly denied because there was no probable cause to believe there was evidence of the crime in his vehicle, noting that the motion judge’s ruling makes no findings about his vehicle being driven on the night of the crime or being otherwise involved in the crime.[19]

     “In reviewing a ruling on a motion to suppress, we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’”  Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).  Credibility determinations are “the province of the motion judge who had the opportunity to observe the witnesses.”  Commonwealth v. Johnson, 461 Mass. 44, 48 (2011).  “Our review here is based on the facts as developed at the suppression hearing, not at trial.”  Id.

The motion judge found the following facts.  On the evening of January 7, 1974, Fitchburg police Detective Joseph Carbone came into contact with the defendant, who had voluntarily come to the police station and was being interviewed by State police Lieutenant John J. Carney and Fitchburg police Detective Paul Keating.  At one point, Carbone followed Detective David Caputi outside to the defendant’s vehicle, which was parked at the police station.  Carbone watched as Caputi opened the rear door to the defendant’s vehicle and retrieved what Carbone perceived to be some rags or clothes from the back seat area (the parties agree the paper towel evidence was included).  We assume that the Commonwealth could not establish that the search had been consented to by the defendant.[20]

Under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, warrantless searches “are per se unreasonable — subject only to a few specifically established and well-delineated exceptions” (citation omitted).  Commonwealth v. Cast, 407 Mass. 891, 901 (1990).  ”One of those exceptions, commonly known as ‘the automobile exception,’ applies to situations where the police have probable cause to believe that a motor vehicle parked in a public place and apparently capable of being moved contains contraband or evidence of a crime.”  Commonwealth v. Bostock, 450 Mass. 616, 624, (2008).  “The existence of probable cause depends on whether the facts and circumstances within the officer’s knowledge at the time of making the search or seizure were sufficient to warrant a prudent man in believing that the defendant had committed, or was committing, an offense.”  Commonwealth v. Miller, 366 Mass. 387, 391 (1974).  In determining whether the police had probable cause to search the defendant’s vehicle without a warrant, we ask whether “the information possessed by police, at the time of the proposed warrantless search, provide[d] a substantial basis for the belief that there [was] a timely nexus or connection between criminal activity, a particular person or place to be searched, and particular evidence to be seized.”  Commonwealth v. Cataldo, 69 Mass. App. Ct. 465, 470 (2007), quoting Grasso & McEvoy, Suppression Matters under Massachusetts Law § 14–1[b], at 14–3 (2006).

We previously have found probable cause to conduct a warrantless search of a vehicle where facts indicated that there was a connection between the crime and the vehicle.  See, e.g., Commonwealth v. Gentile, 437 Mass. 569, 573-574 (2002) (probable cause existed to believe evidence concerning crime would be found in defendant’s truck where, when victim was last heard from, she had been with defendant in his truck); Commonwealth v. Beldotti, 409 Mass. 553, 557 (1991) (probable cause existed to believe that evidence concerning crime would be found in defendant’s home where defendant’s motor vehicle was parked because defendant was with victim that morning and had driven his vehicle on day of murder).

In contrast, here the motion judge found no facts connecting the crime and the defendant’s vehicle.  There was no finding that the defendant had driven the vehicle searched on the night of the murder or had otherwise used the vehicle in furtherance of the crime, nor were there any other facts found that would support an inference that evidence would probably be found therein.  We therefore conclude that the motion judge erred in denying the defendant’s motion to suppress the paper towel evidence.

Given this error, we must determine whether the admission of that evidence requires a new trial.  Because the defendant properly preserved the issue, we ask whether the admission of the evidence was harmless beyond a reasonable doubt.  Commonwealth v. Hoyt, 461 Mass. 143, 154 (2011).  “[T]o establish harmlessness beyond a reasonable doubt, the Commonwealth must show that other properly admitted evidence of guilt is ‘overwhelming,’ in the sense that it is ‘so powerful as to “nullify any effect”‘ that the improperly admitted evidence ‘might have had’ on the fact finder or the findings.”  Commonwealth v. Vasquez, 456 Mass. 350, 362 (2010), quoting Commonwealth v. Tyree, 455 Mass. 676, 704 n.44 (2010).  In undertaking this analysis we consider a number of factors, including “the importance of the evidence in the prosecution’s case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt.”  Hoyt, supra at 155, quoting Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006).

We conclude that the paper towel evidence was of marginal importance to the prosecution’s case and the inferences the jury could draw from the evidence were limited.  At trial, the Commonwealth called a “fiber analyst” to testify as to his examination of paper scraps found in the victim’s apartment, and the paper towel taken from the defendant’s vehicle.  The analyst opined that the scraps and the towel were consistent with being from the same manufacturer and were likely from the same batch or run.  The witness was effectively cross-examined by defense counsel, admitting that he could not tell what company manufactured the towels and that a “batch or run” could be 70,000 or 80,000 rolls or more, depending on which company manufactured them and the size and speed of its manufacturing machinery.

At the end of the case, all that the prosecutor, in closing argument, said about the paper towel found in the defendant’s vehicle was that the fact that the paper towel had the defendant’s DNA on it showed that it was in fact recovered from the defendant’s vehicle in 1974, and that the pattern on the scraps of paper found by the police in the victim’s apartment was more like patterns found on paper towels than napkins. [21]^,[22]

Moreover, to the extent that the paper towel evidence permitted an inference that the defendant had been in the victim’s apartment the night of the murder, there was other powerful evidence from which the jury could draw a similar inference, including the defendant’s palm and fingerprints on the forced door of the victim’s apartment and the DNA found under her fingernails.  We conclude that any prejudice to the defendant’s case caused by the admission of the paper towel evidence was harmless beyond a reasonable doubt.[23]

4.  Denial of motion to stay execution of sentence.  The defendant lastly claims that the single justice erred in denying his motion to stay the execution of his sentence.  We review the denial of the motion for abuse of discretion.  See DiPietro v. Commonwealth, 369 Mass. 964, 964 (1976).  Such discretion is governed by two considerations:  the defendant’s likelihood of success on appeal and whether the defendant poses a security risk.  Commonwealth v. Cohen (No. 2), 456 Mass. 128, 132 (2010).  As to the second factor, “[s]ignificant considerations include the defendant’s familial status, roots in the community, employment, prior criminal record, and general attitude and demeanor” (citation and quotation omitted).  Commonwealth v. Charles, 466 Mass. 63, 77 (2013).

The latter consideration alone supports denial of the motion.  It is presumed that a defendant charged with murder in the first degree is not entitled to bail.  Farley v. Commonwealth, 433 Mass. 1004, 1004 (2000).  Moreover, where the defendant was convicted of brutally murdering the victim, and where he did not submit any evidence of ties to family or the community, we are not persuaded that he did not pose a security risk.[24]  Given this, we conclude the single justice did not abuse his discretion in denying the defendant’s motion.

5.  Review under G. L. c. 278, § 33E.  After a review of the entire record, we discern no reason to exercise our powers to grant a new trial or reduce the degree of guilt.  Although the defendant’s trial was not error free, we conclude that there is no miscarriage of justice requiring a new trial, and accordingly, the defendant’s conviction is affirmed.

So ordered.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

11-P-2166                                       Appeals Court

COMMONWEALTH  vs.  GLORIA PEREZ.

No. 11-P-2166.

Essex.     December 10, 2015. – February 3, 2016.

Present:  Kafker, C.J., Milkey, & Sullivan, JJ.

Larceny.  Bank.  Constitutional Law, Confrontation of witnesses. Practice, Criminal, Confrontation of witnesses.  Evidence, Hearsay, Verbal conduct, Business record, Authentication of document.

Indictments found and returned in the Superior Court Department on April 30, 2008.

The cases were tried before Leila R. Kern, J.

Andrew S. Crouch for the defendant.
Philip Anthony Mallard, Assistant District Attorney, for the Commonwealth.

MILKEY, J.  “[W]here’s Phyllis?”  A bank teller posed that question to the defendant who was seeking to withdraw $ 300 from the checking account of an absent bank customer.  The defendant, who worked as a customer service representative at the bank, had presented a withdrawal slip purportedly signed by Phyllis Wall, an elderly customer who relied on a walker and was well known to the employees at that particular branch.  In response to the question, the defendant stated that Wall had signed the withdrawal slip earlier that day and that she planned to give the money to Wall later.  The teller gave the defendant the money, but then notified the branch manager about the transaction.[1]  An internal investigation ensued, and the defendant ultimately was indicted for twenty-six property offenses, all related to alleged theft from customer accounts.  After trial, a Superior Court jury convicted the defendant of six of those offenses:  two counts of larceny over $ 250, one of which was from a person sixty years or older (G. L. c. 266, § 30[1], [5]), two counts of forgery (G. L. c. 267, § 1), and two counts of uttering (G. L. c. 267, § 5).  On appeal, she challenges the admission of various bank records, and she claims that the evidence for one of the larceny charges was insufficient in one respect.  We affirm.

Background.  The Phyllis Wall withdrawals.  Five of the six convictions involved Wall.  The defendant frequently assisted Wall with her transactions, such as obtaining money orders to pay all of her bills.  The five convictions related to Wall involved two cash withdrawals, including the one described above, which took place on July 21, 2006.  As noted, the withdrawal slip that the defendant presented during that transaction was purportedly signed by Wall.  Wall was not available to testify as to whether the signature on the slip was her own, because she had died by the time of trial.  However, the jury were able to compare that allegedly forged signature against genuine signatures from Wall on other documents entered in evidence.

The July 21, 2006, withdrawal slip purportedly signed by Wall also bore the initials of the defendant beside the words “ID only.”  That annotation signified that the teller could cash the withdrawal slip without checking Wall’s identification, because the defendant had already done so.  As documented by other bank records, thirteen minutes after receiving the $ 300 cash from Wall’s account, the defendant deposited $ 200 cash into her own bank account through a different teller.

The other relevant transaction involving Wall was a withdrawal of $ 1,000 from her checking account on June 5, 2006.  Like the other transaction, the withdrawal slip bore a signature that did not appear to match Wall’s, as well as the defendant’s initials alongside an “ID only” annotation.  A minute after the $ 1,000 was withdrawn from Wall’s account, the defendant deposited the same amount into the account of another customer, Judson Silva.  The Commonwealth’s theory was that the defendant used the $ 1,000 from Wall to replace $ 1,000 she previously had taken from Silva.[2]

For each of the two withdrawals from Wall’s account, the defendant was convicted of forgery and uttering.  She was also convicted of one count of larceny over $ 250 from Wall, a person over sixty years old.

The Hector Rodriguez withdrawals.  The defendant’s remaining conviction was for larceny over $ 250 involving a different customer, Hector Rodriguez.  Rodriguez was a Spanish speaker, and he regularly had sought the defendant’s assistance because she also spoke Spanish.  The bank’s internal fraud investigator, Thomas Backstrom, scrutinized Rodriguez’s transactions because bank records revealed that the defendant had spent an unusual amount of time accessing his accounts, and those of Wall and a third individual.[3]  The bank’s branch manager later discovered signature cards from these three individuals in the defendant’s desk.

Rodriguez had credit problems, and the defendant assisted him in addressing those problems and in paying his bills.  The Commonwealth introduced records that showed that Rodriguez made significant withdrawals (or similar cash outs) on seven occasions, and that many of the transactions bore the defendant’s initials.[4]  Rodriguez testified that he never received any cash from those transactions.  He also testified that the defendant went to see him at his workplace and unsuccessfully tried to get him to sign a letter stating that bank officials had “forced [him] to sign the papers.”[5]

The defendant’s interview.  On August 2, 2006 (that is, less than two weeks after the “where’s Phyllis?” incident), Backstrom, the bank’s investigator, interviewed the defendant.  According to Backstrom’s testimony, the defendant admitted that she — not Wall — had signed the withdrawal slip for the $ 300 withdrawal, but she claimed that she later brought the money to Wall’s home and left it in her mailbox.  She admitted to making the $ 1,000 withdrawal from Wall’s account, but denied depositing it into Silva’s account (claiming she did not know who made that deposit).  She also denied having copies of the three signature cards at her desk.  Once the questioning became more pointed and Backstrom began asking the defendant about customers claiming that they had not received the money from withdrawals that she had initiated, the defendant’s demeanor changed.  Then, during a break in the interview, she abruptly left, stating “that she had nothing else to say and that if she was fired, she was fired.”

The introduction of bank records.  At trial, the Commonwealth proffered a number of documents in support of its case, such as the withdrawal slip from the July 21, 2006, transaction.  It bears noting that some of those were compound documents; that is, they included written information added by different people (or by automated teller equipment) at different points in time.  For example, the withdrawal slip from the July 21 transaction included the underlying bank form, the information added to the form by the person seeking to withdraw the money (amount, signature, and date), the defendant’s initials and “ID only” annotation, and the ink “spraying” added to the slip by a machine when the withdrawal was processed by the teller (showing date, time, and teller number).

The prosecutor sought to introduce the bank documents through the testimony of Backstrom.  Although Backstrom had no formal law enforcement background, he had worked as a fraud investigator for the bank for eight years at the time of trial, before which he had worked as a teller supervisor.  His testimony during a pretrial voir dire[6] and at trial revealed his extensive familiarity with how the diverse bank records are created and electronically stored, as well as how such records could be accessed and reproduced in hard copy format.  Additional facts regarding the introduction of the documents are reserved for later discussion.

The defense.  The defendant took the stand.  She acknowledged that she made both of the withdrawals from Wall’s checking account, but denied that she committed any offenses in doing so.  With respect to the $ 300 withdrawal, she testified that Wall had presigned the withdrawal slip (in contrast to Backstrom’s testimony that the defendant had admitted to him that she signed Wall’s signature).  The defendant also claimed that she in fact hand-delivered the money to Wall later the same day and that the $ 200 deposit that she made to her own account directly after the withdrawal was from a different source.  With respect to the $ 1,000 withdrawal, the defendant acknowledged that she transferred the money from Wall’s account into Silva’s account, but she claimed that she simply was rectifying a ministerial error she had made earlier.[7]  With respect to the Rodriguez transactions, the defendant testified that Rodriguez in fact authorized all the withdrawals and received the cash.

Discussion.  The bank records.  The defendant challenges the introduction of the relevant bank records on two different statutory grounds, which we will address in turn.  Before doing so, however, we frame the nature of the evidentiary disputes before us.  The defendant claims that the introduction of the documents allowed hearsay into evidence, and that this in turn violated her rights pursuant to the confrontation clause of the Sixth Amendment to the United States Constitution.  However, she does not identify any out-of-court statements contained in the documents that were admitted for their truth.  See Commonwealth v. Siny Van Tran, 460 Mass. 535, 550 (2011), citing Mass. G. Evid. § 801(c), at 230 (2011) (“The hearsay rule prohibits the admission only of out-of-court assertions offered to prove the truth of the matter asserted”).  For many of the records, such as the underlying withdrawal and deposit slips, the statements contained therein were “not offered to prove the truth of the matter [they] asserted, but rather only for the fact that [they were] made.”  Commonwealth v. Sullivan, 410 Mass. 521, 526 (1991).  Indeed, such embedded statements did not constitute “factual assertion[s] at all,” Williams v. United States, 458 U.S. 279, 284 (1982), but were instead “legally-operative verbal acts” with legal significance independent of the truth of any statement contained in them.  United States v. Pang, 362 F.3d 1187, 1192 (9th Cir. 2004).  The “verbal acts” doctrine also encompasses the initials and “ID only” annotations that the defendant added to the withdrawal slips before they were processed.[8]  See United States v. Bowles, 751 F.3d 35, 39-40 (1st Cir. 2014) (false signature endorsements on checks “recognized as verbal acts that are not hearsay”); Commonwealth v. Purdy, 459 Mass. 442, 452-453 (2011) (“operative words” bearing “independent legal significance” such as those “used to effectuate the commission of a crime” are not hearsay).  See also Mass. G. Evid. § 801(c), at 263 (2015).

Other records were generated automatically by the bank’s computerized data management system when the transactions were processed (memorializing such information as the date and time of the transaction and which teller processed the transaction).  Examples include the “cash out credit” slip that accompanied the July 21, 2006 withdrawal,[9] and the ink “spraying” that was added to withdrawal slips when they were processed.  Any content included in these records does not raise hearsay concerns.  See Commonwealth v. Thissell, 457 Mass. 191, 197 n.13 (2010) (“Because computer-generated records, by definition, do not contain a statement from a person, they do not necessarily implicate hearsay concerns”).  See also Mass. G. Evid. § 801(a), at 260 (“‘Statement’ means a person’s oral assertion, written assertion, or nonverbal conduct” [emphasis added]).

In sum, the defendant has not identified any out-of-court statements included in the relevant records that were admitted for their truth.  As a result, the evidence did not raise a confrontation clause issue.  See Tennessee v. Street, 471 U.S. 409, 413-414 (1985); Commonwealth v. Hurley, 455 Mass. 53, 65 n.12 (2009).  With no hearsay concerns raised by the records, the defendant is left to argue that they were inadequately authenticated.[10]

General Laws c. 233, § 78.  At trial, the prosecutor treated the relevant documents as business records admissible pursuant to G. L. c. 233, § 78, a statutory exception to the hearsay rule.  To invoke that statute, the party proffering the document must demonstrate

“that (1) the entry, writing, or record was made in good faith; (2) in the regular course of business; (3) before the beginning of the civil or criminal proceeding in which it is offered; and (4) it was the regular course of such business to make such memorandum at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter.”

Siny Van Tran, 460 Mass. at 548.  The defendant argues that these prerequisites cannot be met for those documents that the Commonwealth claimed were forged, such as the withdrawal slips for the Wall withdrawals.  As the defendant puts it in her brief:  ”the Commonwealth could not both purport to the court that the documents were forged in bad faith and records of fraudulent transactions not part of the bank’s ordinary business[,] and that they were exempted from the hearsay exclusionary rule as reliable business records.”[11]

The defendant’s argument is correct up to a point.  To the extent that the Wall withdrawal slips were forged, they cannot qualify as business records made in good faith in the regular course of business.[12]  See Commonwealth v. Williams, 63 Mass. App. Ct. 615, 618-619 (2005).  However, the fact that some of the admitted documents did not qualify as business records within the meaning of G. L. c. 233, § 78, does not mean that they could not be admitted on a different basis.  See Williams, supra.  Here, as in Williams, the documents were being offered for nonhearsay purposes; whether they fell within the ambit of § 78 is beside the point so long as they otherwise could be authenticated properly.  See id. at 619.

As far as authentication goes, Backstrom’s demonstrated knowledge of the bank’s record keeping system, together with the nature and circumstances of the withdrawal slips at issue, provided ample support for authenticating those documents.[13]  See Commonwealth v. Duddie Ford, Inc., 28 Mass. App. Ct. 426, 435 (1990), S.C., 409 Mass. 387 (1991) (“documents were sufficiently authenticated to be admitted to show what was on record at the bank” where an officer of the bank provided testimony identifying the bank’s records and described their function).  See also Mass. G. Evid. § 901(a), at 333 (authentication requirement met if testimony is “sufficient to support a finding that the item is what the proponent claims it is”).  There was no requirement that the Commonwealth produce an eyewitness to the creation of the records.  See Williams, supra at 619-620 (lack of direct testimony concerning the production of or signature on a document not a bar to admissibility).  Nor was there any requirement that the witness through whom the documents were admitted formally be designated a keeper of the records (a designation that would have added little to Backstrom’s demonstrated knowledge of the bank’s record keeping system).  Compare Bowles, 751 F.3d at 40; Beal Bank, SSB v. Eurich, 444 Mass. 813, 818-819 (2005) (testimony of bank manager provided sufficient authentication even though he lacked “personal knowledge regarding the maintenance of the predecessors’ business records”).

None of this is to say that the documents were introduced in a model manner.  However, a “defendant is entitled to a fair trial, not a perfect one.”  Commonwealth v. Lodge, 431 Mass. 461, 476 (2000), citing Commonwealth v. Graves, 363 Mass. 863, 872-873 (1973).  In this regard, we note that the defendant grossly overstates the role that the documentary evidence played here.  For example, that the defendant used a withdrawal slip to obtain $ 300 cash from Wall’s checking account was independently established by the teller’s live testimony as well as by the defendant’s admissions to Backstrom (and eventually through her trial testimony).  Moreover, her defense consistently was that she gave the money to Wall, not that she did not take it in the first place.

General Laws c. 233, § 77.  The defendant’s other appellate argument is based on G. L. c. 233, § 77, an evidentiary statute specific to bank records.  That section states that copies of bank records

“shall be competent evidence in all cases, equally with the originals thereof, if there is annexed to such copies an affidavit . . . stating that the affiant is the officer having charge of the original records, books and accounts, and that the copy is correct and is full so far as it relates to the subject matter therein mentioned.”

G. L. c. 233, § 77.  Because the bank records introduced here were unaccompanied by any keeper of the records affidavit, the defendant argues that their admission was improper.[14]

This issue was not preserved at trial.  Although the defendant raised various objections to the introduction of the documents, at no point did she ever reference G. L. c. 233, § 77, or object on the ground that a required affidavit was absent.  Our review is therefore limited to whether the admission of the documents was error creating a substantial risk of a miscarriage of justice.  Commonwealth v. Irene, 462 Mass. 600, 608 n.16 (2012).

In any event, we discern no violation of the statute, much less a substantial risk of a miscarriage of justice.  The focus of § 77 is to ease the admission of copies of bank records by obviating the need for the proponent of the records either to call a live witness through whom the documents had to be introduced or to produce the original records (as might be deemed necessary under a strict application of the best evidence rule).[15]  See Mass. G. Evid. §§ 901(b)(7)(A) & 1003, at 337-338, 353 (classifying § 77 as a statute that “deal[s] with authentication” and “equalize[s] duplicates and originals”).  We do not view the statute as providing an exclusive means of authenticating bank records, or as precluding a party from authenticating a bank record through a live witness.[16]  See Mass. G. Evid. § 902(d), at 341-342, 345 (describing § 77 as a means of “[s]elf-[a]uthenticating” bank records to relieve the necessity of showing “[e]xtrinsic evidence of authenticity”).

Our analysis is not inconsistent with Irene, the principal case upon which the defendant relies.  In that case, at issue was a hospital report from a treating physician that included a statement that “[t]he patient [the defendant] states that he was minding his own business while he was in a taxicab when he got shot.”  Irene, supra at 608.  The trial judge ruled that the hearsay statement would have to be redacted if the physician’s report were admitted pursuant to the hospital records statute, G. L. c. 233, § 79.[17]  See Irene, supra at 608.  However, the judge allowed in evidence an unredacted version of the report under the business records statute, G. L. c. 233, § 78.  See Irene, supra at 606.  The Supreme Judicial Court ruled that this was improper.  Id. at 616.  The court reasoned that where the Legislature had placed specific limitations on the introduction of hearsay contained in hospital records, the Commonwealth was not free to avoid those limitations by recharacterizing the hospital records as general business records.  Id. at 615-616.  The defendant before us argues that the bank records statute, G. L. c. 233, § 77, is a specific statute analogous to the hospital records statute, and that the Commonwealth cannot avoid complying with it by having the documents admitted pursuant to the general business records statute.  This analogy breaks down under scrutiny.

The concern in Irene was over hearsay, not authentication.  With the Legislature having addressed the admissibility of hearsay contained in hospital records in a particular fashion, the court in effect ruled that § 79 occupied the field to the exclusion of other hearsay statutes.  See Irene, 462 Mass. at 612-614 (explaining how § 79 addressed concerns different from other hearsay exceptions, such as business records).  Section 77, by contrast, does not address hearsay issues and instead serves a more limited function than § 79.[18]  We do not view § 77 as precluding the admission of bank records through other means.

Sufficiency.  The defendant additionally argues that the Commonwealth’s evidence that she committed a larceny against Wall was legally insufficient in one respect.  In assessing such a claim, we consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

To make out a case of larceny, the Commonwealth must prove inter alia that a defendant possessed “the specific intent to deprive the person of the property permanently.”  Commonwealth v. Donovan, 395 Mass. 20, 25-26 (1985), quoting from Commonwealth v. Johnson, 379 Mass. 177, 181 (1979).  Because Wall had died before trial, she was not available to testify to whether she received the $ 1,000 from the June 5, 2006, withdrawal or the $ 300 from the July 21, 2006, withdrawal.  The defendant argues that, absent such affirmative proof (and in the face of her claim that Wall eventually did receive the money), the evidence was legally insufficient that she permanently intended to deprive Wall of the money.  This argument requires little discussion.  There was ample circumstantial evidence that would allow rational jurors to conclude, beyond a reasonable doubt, that the defendant intended to steal the money she took from Wall’s account.  For example, with regard to the July 21, 2006, incident, there was evidence that the defendant had forged Wall’s signature, lied to Backstrom about doing so, and deposited $ 200 cash into her own account directly after receiving the $ 300 cash from Wall’s.  From such evidence, a rational trier of fact could have drawn the reasonable inference that the defendant intended to permanently deprive Wall of the money she withdrew.

Judgments affirmed.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-11920

EVENTMONITOR, INC.  vs.  ANTHONY LENESS.^[1]

Suffolk.     November 3, 2015. – February 4, 2016.

Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ.

Employment, Termination.  Contract, Employment, Performance and breach, Termination, Indemnity.  Indemnity.  Massachusetts Wage Act.  Damages, Employment contract.

Civil action commenced in the Superior Court Department on April 30, 2008.

The case was heard by Jeffrey A. Locke, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Ronald W. Dunbar, Jr. (Andrew E. Goloboy with him) for the plaintiff.

Shana I. Kaplan (James E. O’Connell, Jr., with her) for the defendant.

David J. Fried, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief.

DUFFLY, J.  The plaintiff, EventMonitor, Inc. (EventMonitor), is a Delaware corporation, established in 2000, with headquarters in Boston.  It develops and markets software for the financial industry.  The defendant, Anthony Leness, was one of the early employees of the company.  Leness was hired as EventMonitor’s vice-president for business affairs in June, 2001, upon his graduation from Harvard Business School.  He served in that position for approximately six years, until he was terminated on December 5, 2007, two months after he had proposed a plan to restructure EventMonitor into two related entities, a proposal that Sheldon Chang, EventMonitor’s president and executive director, believed would undermine the future of the company.  The termination was characterized as “without cause.”

Under the terms of Leness’s employment contract, EventMonitor therefore was required to pay him one year’s salary and benefits, plus the value of any accrued but unused vacation time.  Section 6(b) of the employment agreement provided that, upon termination, Leness was to return “all items containing or embodying Proprietary Information (including all copies).”  Before his departure, Leness returned, among other things, a company laptop computer containing proprietary information that he had used in the course of his work at EventMonitor.

Soon after Leness’s termination, through a forensic examination of the laptop computer, EventMonitor discovered that Leness had copied all of the data on the computer, including EventMonitor’s customer information and proprietary business plans, to a data backup and storage service accessed over the Internet.  Leness had not informed EventMonitor about this backup before his termination was effective.  To the contrary, Leness had paid the subscription for the data storage service with a personal credit card, and also had installed a “cleaning” program in an effort (ultimately unsuccessful) to delete from the laptop information related to the account subscription.  EventMonitor deemed Leness’s actions to have been a defalcation of company assets.  “Defalcation” was one of the only reasons in the employment contract that would have allowed EventMonitor to terminate Leness “for cause.”  And, where a termination was for cause, the contract did not require Eventmonitor to make any severance payments.

Retroactively characterizing the termination as having been for cause, in mid-February, 2008, approximately five weeks after Leness’s departure, Eventmonitor stopped paying Leness any severance payments, declined to pay him his accrued vacation, and filed a complaint in the Superior Court asserting, among other claims, breach of contract.  Leness asserted twelve counterclaims, among them breach of contract; breach of the implied covenant of good faith and fair dealing; violations of the Massachusetts Wage Act, G. L. c. 149, § 148 (wage act); and indemnification under the terms of the employment contract.^[2]  Leness argued that EventMonitor had no valid basis for treating his termination as one “for cause,” and had committed a breach of the contract by refusing to pay his severance payments, as well as violated the wage act by refusing to pay him the value of his accrued and unused vacation.

After a jury-waived trial, a Superior Court judge found that Leness had not engaged in defalcation of EventMonitor’s assets, and had not committed a material breach of the employment contract, and thus that his termination could not have been for cause.  Judgment entered for Leness on EventMonitor’s claims for breach of contract, breach of the covenant of good faith and fair dealing, and breach of fiduciary duty.  The judge also entered judgment for Leness on his counterclaims for breach of contract, breach of the covenant of good faith and fair dealing, and violations of the wage act, but entered judgment for EventMonitor on Leness’s claim for indemnification.  EventMonitor appealed, and Leness cross-appealed.  We transferred the matter to this court on our own motion.

EventMonitor contends that the judge erred in finding that Leness did not commit a material breach of the employment contract and did not engage in a defalcation of company assets.  In support of its assertion that Leness’s employment properly was terminated for cause, EventMonitor asks that we adopt the “after-acquired evidence doctrine” used in some other jurisdictions, which allows an employer to recharacterize the nature of an employee’s termination on the basis of information learned after the termination has taken place.

In the rare opportunities that this court and the Appeals Court have had to consider the issue of after-acquired evidence in the context of a termination from employment, neither of the courts has adopted, or declined to adopt, this doctrine.  See Flesner v. Technical Communications Corp., 410 Mass. 805, 815-817 (1991); Prozinski v. Northeast Real Estate Servs., 59 Mass. App. Ct. 599, 610-612 (2004).  We need not reach the question here, because we agree with the trial judge that Leness did not commit a material breach of the employment contract, and did not engage in defalcation of company assets.  Therefore, Leness committed no act giving rise to a termination for cause, and the after-acquired evidence doctrine would have had no impact on the result we reach.  We affirm the judge’s conclusion that Leness is entitled to severance payments under the terms of the contract, and remand the matter for entry of an amended judgment correcting certain arithmetic errors in the calculation of accrued vacation payments.^[3]

1.  Facts.  “We recite the essential facts found by the judge, which we accept ‘unless they are clearly erroneous,’ . . . and which the parties do not challenge, supplemented by other undisputed information from the record.”  Boyle v. Zurich American Ins. Co., 472 Mass. 649, 651 (2015), quoting Weiler v. PortfolioScope, Inc., 469 Mass. 75, 81 (2014).

In June, 2001, EventMonitor hired Lenessas vice-president for business affairs.  Leness and EventMonitor entered into a written employment agreement detailing how EventMonitor could terminate Leness with or without cause.  Termination without cause required thirty days’ written notice; it also entitled Leness to severance payments consisting of twelve months of salary and benefits, unless he began full-time employment during that period, and his accrued but unused vacation time.  Section 5 of the contract specified a very limited number of reasons that EventMonitor could terminate Leness’s employment for cause, including if Leness “engaged in wilful fraud or defalcation, either of which involved funds or other assets of [EventMonitor].”

Section 6(b) of the employment agreement, the non-disclosure provision, required Leness to “hold in confidence and not knowingly disclose or, except within the scope of his employment, knowingly use any Proprietary Information.”  “Proprietary Information” was defined as:

“[A]ll [i]nventions and all other business, technical and financial information (including without limitation, the identity of and information relating to customers, investors, vendors, business partners or employees of [EventMonitor]) . . . that relate to [EventMonitor] or the business or demonstrably anticipated business of [EventMonitor] or that are received by or for [EventMonitor] in confidence.”

The section provided further that, upon termination of his employment, Leness was required “promptly [to] return to [EventMonitor] all items containing or embodying Proprietary Information (including all copies).”

Leness worked at EventMonitor for approximately six years.  In the early years, the company grew substantially in terms of revenue and number of employees.  In the fall of 2007, however, tensions developed between Leness and Chang over the direction of the company.  Those tensions escalated significantly after October 17, 2007, when Leness submitted a business proposal that would have left Chang to focus on research and development, using the existing software as a base product, and would have created a spin-off company for sales and support, with Leness in charge of that new entity.  The new entity would have taken the majority of EventMonitor’s revenue, which was derived largely from service and licensing agreements with three large clients; in exchange, the new entity would have lent EventMonitor startup funds to develop several new products that were then being considered.

Chang initially agreed to Leness’s suggestion that a new business plan be considered.  After seeing the proposal, however, Chang believed that the plan was developed to further Leness’s self-interest, and the proposal demonstrated that he was not loyal to the company.  Consequently, in December, 2007, EventMonitor notified Leness of his termination.  On December 5, 2007, Chang informed Leness verbally that his employment was terminated “without cause,” and sent him a copy of a written termination letter, via electronic mail, stating that EventMonitor was giving thirty days’ notice.  As required by the employment contract, prior to the effective date of his termination, Leness provided EventMonitor with information about client accounts and agreements, as well as a written explanation of the locations on the company computers where he had stored proprietary information.

After Leness’s departure, Chang hired a forensic expert to examine Leness’s work-issued laptop computer.  The examination revealed that in early October, 2007, at approximately the same time that he submitted the proposal for restructuring EventMonitor, Leness paid for a one-year subscription to an on-line data storage service through a company called Carbonite.  Carbonite is a professional data storage service that encrypts information for purposes of security.  Using this subscription, Leness copied all of EventMonitor’s files that had been on his laptop to Carbonite’s data storage system.  The uploaded data included EventMonitor’s “proprietary information,” as defined by the contract, including information related to its customers, business documents, and financing.  Leness did not tell anyone at EventMonitor about the Carbonite account or the copying of EventMonitor’s proprietary information to Carbonite’s storage system.^[4]  Indeed, Leness used his personal electronic mail address, and his personal credit card, to pay for the Carbonite subscription.  Leness also downloaded a computer cleaning program to the company laptop in an effort to erase evidence of the Carbonite account from the laptop.

When Chang learned of Leness’s actions in copying EventMonitor’s proprietary information to the Carbonite system, he retroactively changed Leness’s termination to one “for cause.”  As a result, in early February, 2008, EventMonitor stopped making the severance payments required under the contract for a termination “without cause.”  EventMonitor also refused to pay Leness for his unused vacation time, which, under the terms of the contract, it was required to pay regardless of the type of termination.  Ultimately, Leness informed EventMonitor that he would file a claim in the Superior Court if his severance payments were not resumed by May 1, 2008.  On April 30, 2008, without having made any further payments, EventMonitor commenced this action.

2.  Material breach of the employment agreement.  EventMonitor argues that Leness committed a material breach of the employment agreement by violating section 6(b), which required him to maintain the confidentiality of EventMonitor’s proprietary information and to return all such information, including all copies, upon termination.

A breach of a contract is a material breach when it involves “an essential and inducing feature of the contract.”  Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 470 (1991), quoting Bucholz v. Green Bros., 272 Mass. 49, 52 (1930), S.C., 290 Mass. 350 (1935).  Whether a party has committed a material breach ordinarily is a question of fact.  See Cetrone v. Paul Livoli, Inc., 337 Mass. 607, 610 (1958); Coviello v. Richardson, 76 Mass. App. Ct. 603, 609 (2010); Prozinski v. Northeast Real Estate Servs., LLC, 59 Mass. App. Ct. at 609.  See also 23 Williston on Contracts § 63:3 at 440 (4th ed. 2002).  But if “the evidence on the point is either undisputed or sufficiently lopsided . . . the court must intervene and address what is ordinarily a factual question as a question of law.”  See Teragram Corp. v. Marketwatch.com, Inc., 444 F.3d 1, 11 (1st Cir. 2006), quoting Gibson v. Cranston, 37 F.3d 731, 736 (1st Cir. 1994).

Thus, we accept a trial judge’s findings as to the materiality of a breach unless they are clearly erroneous.  Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996).  “We are not bound, however, by the judge’s conclusions of law, and we must ensure that the judge’s ultimate findings and conclusions are consistent with relevant legal standards.”  Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1996).  See Psy-Ed Corp. v. Klein, 459 Mass. 697, 710 (2011), quoting Kendall v. Selvaggio, 413 Mass. 619, 620-621 (1992) (“In reviewing a judge’s decision after a jury-waived trial, ‘we . . . scrutinize without deference the legal standard which the judge applied to the facts’”).  “If a judge’s ultimate findings are inconsistent with the subsidiary findings, we must set them aside.”  Demoulas v. Demoulas Super Mkts., Inc., supra.  Here, the evidence fully supports the judge’s findings, and there is no error in his determination, based on these findings, that Leness did not commit a material breach of the employment contract.

The judge found that in copying EventMonitor’s proprietary information to Carbonite’s data storage system, not disclosing the upload to EventMonitor, and not returning the Carbonite files upon his termination from employment, Leness violated section 6(n) of the employment contract, in particular because he did not return all copies of EventMonitor’s proprietary information.  Nonetheless, as the judge correctly concluded, Leness’s failure to return the information, while a “variance from complete compliance” with the employment contract, did not affect an essential and inducing feature of the contract, and therefore was not a material breach.

The judge found that there was no evidence that Leness had used the information for any purpose, before or after his termination more than five years prior to the date of trial, or intentionally had disclosed it to anyone.  The judge stated further that, while he did not credit Leness’s stated reasons for having placed a copy of EventMonitor’s proprietary information on the Carbonite system (EventMonitor’s purportedly inadequate backup procedures), he also rejected EventMonitor’s suggestion that the copying had been done with a malicious intent.  Indeed, the judge stated that, given the circumstances and the state of the relationship between Leness and Chang in October, 2007, when the copies were made, Leness might well have wanted the copy in order to be able to demonstrate that he had not neglected his duties or acted deliberately to the detriment of EventMonitor’s interests.

The judge concluded that the essential purpose of section 6(b) is to protect the confidentiality of EventMonitor’s proprietary information.  A breach of section 6(b) therefore becomes material if it undermines that confidentiality.  Because there was no evidence or indication that Leness had disclosed EventMonitor’s confidential information, Leness’s breach was not material.

We observe that, while electronic copies of proprietary information placed on third-party storage devices potentially could fall into the hands of competitors, or otherwise become public or be disclosed, as the judge found, there was no showing that such a result was likely to have, or had, occurred.  Carbonite maintains its clients’ information in a secure and encrypted manner, and its business model relies on its clients’ confidence in this assurance.  EventMonitor did not suggest, let alone offer evidence to prove, that its information could more readily be compromised because it temporarily had been stored on Carbonite’s servers.  Indeed, EventMonitor used similar data backup services, indicating that it did not view the use of such services as endangering the confidentiality of the information stored thereon.^[5]

In any event, the possibility of unintentional disclosure is not relevant under the terms of the employment contract.  As the judge found, Leness did not “knowingly disclose” or “knowingly use” any of EventMonitor’s proprietary information.  Accordingly, because Leness’s breach did not endanger the confidentiality of EventMonitor’s information, the breach was not material, and EventMonitor was not entitled to stop making severance payments.  See Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. at 470; Lease-It, Inc. v. Massachusetts Port Auth., 33 Mass. App. Ct. 391, 396 (1992); 23 Williston on Contracts §  63:3 at 438.

3.  Whether termination could be amended to one “for cause.“  Having concluded that Leness did not commit a material breach of the employment contract, we turn to EventMonitor’s argument that Leness’s breach nonetheless provided adequate grounds for EventMonitor to have converted the termination to one for cause.  To support its decision to change the termination to one “for cause,” EventMonitor asks that we adopt the after-acquired evidence doctrine that has been accepted in some other jurisdictions.  This doctrine allows an employer retroactively to characterize a termination as one for cause if the employer shows that:  (1) an employee had committed misconduct; (2) the employer learned of the misconduct only after the employee’s termination from employment; and (3) had the employer known of the misconduct prior to the termination without cause, the employer instead would have discharged the employee for cause on that basis of that conduct.^[6]  See McDill v. Environamics Corp., 144 N.H. 635, 640-641 (2000) (citation omitted).  As noted, supra, we need not address this argument, as we conclude that the information about Leness’s activities about which EventMonitor learned subsequent to his termination without cause would not have supported a decision to terminate him for cause.

Under the terms of Leness’s employment agreement, defalcation of company assets permitted a “termination for cause.”^[7]  EventMonitor argues that Leness’s actions in uploading EventMonitor’s proprietary information to the Carbonite data storage system constituted a defalcation of company assets, and that the judge erred in concluding that there was no defalcation.

The interpretation of the meaning of a term in a contract is a question of law, Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 287 (2007), and thus we review the judge’s determination de novo.  Trace Constr., Inc. v. Dana Barros Sports Complex, LLC, 459 Mass. 346, 351 (2011).  “When the words of a contract are clear they alone determine the meaning of the contract . . . .”  Merrimack Valley Nat’l Bank v. Baird, 372 Mass. 721, 723 (1977).  A reviewing court considers extrinsic evidence only when a term in a contract is ambiguous.  See Massachusetts Mun. Wholesale Elec. Co. v. Danvers, 411 Mass. 39, 48 (1991).

Relying in part on a detailed examination of Massachusetts appellate decisions,^[8] and the common meaning of the term “asset,” the judge determined that “defalcation” within the meaning of the employment agreement did not include takings of nonmonetary assets.  The judge concluded also that, even if intangible assets had been subject to defalcation within the meaning of the contract, Leness’s actions in uploading information to Carbonite did not deprive EventMonitor of the use or value of those assets, and that there was no evidence that he had disclosed, had intended to disclose, or had made use of the information for his own benefit or to the detriment of EventMonitor.

We agree that there was no defalcation here.  Regardless of whether defalcation under Massachusetts law is limited solely to the taking of funds, in ordinary usage defalcation requires at least a temporary misuse or deprivation of the use or value of an asset,^[9] and the employment agreement does not otherwise define the term.

The judge found, and the finding is supported by the evidence, that Leness did not misuse or deprive EventMonitor of its proprietary information.  Leness merely retained a copy of the information under circumstances that had no impact on EventMonitor’s use of its proprietary information, or on the value of that information.  If Leness had disclosed or used the information, his actions might have allowed a competitor to offer a similar product without substantial development costs, reduced the standing of the company in the eyes of its clients, or provided a competitor with information about EventMonitor’s customers, any one of which possibly could have resulted in a loss of revenue.  Such loss did not occur here.  We need not decide whether actions that result in a loss of the exclusive use of proprietary information could have amounted to a “defalcation” within the meaning of the contract, because Leness’s secure storage of a copy of the proprietary information, in the absence of any disclosure or use by anyone other than EventMonitor, did not undermine EventMonitor’s exclusive use of its information.

4.  Indemnification.  Leness argues that the judge erred in concluding that EventMonitor was not required to indemnify him for his costs incurred in defending against EventMonitor’s claims.  Leness’s argument that he is entitled to indemnification is not supported by the plain language of the contract.  The employment agreement’s indemnity clause, section 10(h), states that EventMonitor must indemnify Leness if he

“is made a party . . . to any . . . action, suit or proceeding . . . by reason of the fact that [Leness] is or was an employee, officer or director of [EventMonitor] . . . in which capacity [Leness] is or was serving at [EventMonitor’s] request.”

Thus, under its plain language, the clause requires indemnification only if a claim is brought against Leness as a result of actions in his capacity as an employee, acting at EventMonitor’s request.  Here, Leness was made a party to an action only after EventMonitor discovered that he had uploaded its proprietary information to a third-party data storage service.  As the trial judge found, the filing of the lawsuit was a direct result of Leness’s actions with respect to the Carbonite data storage subscription, undertaken in his personal capacity and not in his capacity as EventMonitor’s employee.

These findings are well supported in the record and are not clearly erroneous.  Leness’s conduct in purchasing the subscription using a personal credit card and personal electronic mail account, uploading the information without advising anyone at EventMonitor of his actions or his purported reason for doing so (EventMonitor’s supposedly inadequate backup procedures),^[10] and then attempting to erase all traces of the Carbonite subscription from his computer, supports the inference that use of the Carbonite data storage service was undertaken in Leness’s personal capacity, rather than as an employee.  Leness also committed a breach of the employment contract by not returning or deleting the copy of EventMonitor’s proprietary information stored on the Carbonite system before his employment ended.  EventMonitor was not required to indemnify Leness for defending against a lawsuit resulting from actions that were not undertaken in his capacity as an employee.

5.  Calculation of damages for violations of the wage act.  General Laws c. 149, § 148, requires timely payment of wages, including payments due under the terms of an agreement for accrued but unused vacation time.  The judge determined that Leness was entitled to payment for 8.4 days of accrued and unused vacation.^[11]  Neither party disputes the judge’s calculation of the number of days at issue.  In his brief, however, Leness contends that the judge’s calculation of damages for those days, in the amount of $ 4,732.10, trebled to $ 14,196.30 (as required by G. L. c. 149, § 150), is erroneous due to a mathematical error.  We agree that based on a daily rate of $ 673.08, the damages for 8.4 days of accrued vacation pay should have been $ 5,653.87, trebled to $ 16,961.62.^[12]

According to the Superior Court docket sheet, although, in 2012, Leness’s motion pursuant to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), to amend the judgment in order to add costs was allowed, Leness has not filed in the Superior Court a motion for relief from judgment for a clerical mistake, pursuant to Mass. R. Civ. P. 60 (a), 365 Mass. 828 (1974) or mistake or inadvertence pursuant to Mass. R. Civ. P. 60 (b).  Nonetheless, modification of a judgment to correct an inadvertent error of this type, in a mathematical calculation, is appropriately raised on appeal.  See Massachusetts Mun. Wholesale Elec. Co. v. Springfield, 49 Mass. App. Ct. 108, 113-114 (2000).  Leness is entitled to entry of an amended judgment to correct the mathematical miscalculation.

6.  Conclusion.  The judgment is affirmed as to all claims and counterclaims other than the amount of damages awarded to the plaintiff-in-counterclaim under G. L. c. 149, § 148, of the wage act.  The matter is remanded to the Superior Court for entry of an amended award of damages on the wage act claim, consistent with this opinion.

So ordered.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-11953

ABINEL ZENON  vs.  COMMONWEALTH.

February 4, 2016.

Supreme Judicial Court, Superintendence of inferior courts.

Abinel Zenon appeals from a judgment of a single justice of this court denying his petition for relief from a protective order issued by a judge in the District Court.  Zenon was charged with assault and battery and other offenses.  He sought certain third-party records in support of his claim that the alleged victim was in fact the first aggressor.  See Commonwealth v. Adjutant, 443 Mass. 649 (2005).  The judge issued the protective order concerning these records, apparently following the Dwyer protocol.  Commonwealth v. Dwyer, 448 Mass. 122, 139-147 (2006).  See id. at 147-150 (Appendix).  Zenon filed various motions in the District Court for relief from the protective order; these motions were only partially successful.  Zenon’s petition followed.  Treating the petition as one filed pursuant to G. L. c. 211, § 3, the single justice denied relief without a hearing.  Zenon has since pleaded guilty to the charges.[1]  We affirm the judgment of the single justice.

Zenon has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a petitioner seeking relief from an interlocutory ruling of the trial court to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.”  Passing the question whether the rule applies here, where the criminal case was resolved after the single justice made her decision, it is clear that Zenon had an adequate alternative remedy.  At the time of the single justice’s decision, the charges were still pending.  Had Zenon been tried and convicted of any offense, he could have challenged the protective order on direct appeal.  See Rodriguez v. Commonwealth, 449 Mass. 1029, 1030 (2007) (discussing postconviction relief available under Dwyer protocol).  If Zenon believes that the records have any continuing significance now that the charges have been resolved, he could move in the District Court for termination or modification of the protective order and, if such a motion is denied, appeal in the ordinary course from that ruling.  Similarly, if he has a basis to do so, Zenon remains free to file a motion for a new trial pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), and to appeal from any adverse ruling thereon.  “The court’s extraordinary power of general superintendence under c. 211, § 3, is ‘exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course.’”  Doyle v. Commonwealth, 472 Mass. 1002, 1003 (2015), quoting Norris v. Commonwealth, 447 Mass. 1007, 1008 (2006).

Judgment affirmed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

Dana Goldblatt for the petitioner.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-07874

COMMONWEALTH  vs.  JERMAINE CELESTER.

Plymouth.     October 9, 2015. – February 10, 2016.

Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Homicide.  Constitutional Law, Assistance of counsel, Confrontation of witnesses, Public trial.  Evidence, Spontaneous utterance.  Practice, Criminal, Capital case, New trial, Assistance of counsel, Confrontation of witnesses, Conduct of prosecutor, Argument by prosecutor, Public trial.

Indictments found and returned in the Superior Court Department on April 19, 1994.

A pretrial motion to suppress evidence was heard by Robert L. Steadman, J.; the cases were tried before Gordon L. Doerfer, J.; a motion for a new trial, filed on November 2, 2005, was heard by Robert C. Rufo, J.; and a second motion for a new trial, filed on June 20, 2013, was considered by Thomas F. McGuire, Jr., J.

Chauncey B. Wood for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Kirsten V. Mayer, Maria M. Carboni, David J. Derusha, Mark S. Gaioni, & David Lewis, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

BOTSFORD, J.  In September, 1995, a Plymouth County jury convicted the defendant, Jermaine Celester, of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty and of armed assault with intent to murder.  The victims, Wakime Woods and Derek Gibbs, were shot while walking with the defendant on the night of February 18, 1994.  Woods died as a result of his injuries; Gibbs lived, but was rendered a quadriplegic.  On appeal, the defendant challenges the admission in evidence of the decedent’s out-of-court statement about who had shot him; the admission of the defendant’s statement to police; the prosecutor’s conduct, and in particular her closing argument; and the closure of the court room during jury empanelment.  For the reasons discussed in this opinion, we affirm the defendant’s convictions, but vacate the order denying his first motion for a new trial and remand the case to the Superior Court for an evidentiary hearing on that motion.

Background.  From the evidence presented at trial, the jury could have found the following facts.[1]  On the evening of February 18, 1994, Wakime Woods and Derek Gibbs were shot near the corner of Green and Newbury Streets in Brockton.  The Commonwealth’s theory of the case was that the defendant shot both victims because he was seeking revenge for the murder, approximately four months earlier, of his good friend Robert Moses, and believed that Gibbs was refusing to reveal the identity of the person who had murdered Moses.[2]

On the day Gibbs and Woods were shot, Gibbs, Woods, and their friend Demetrious Lynch had been at the Boys & Girls Club in Brockton until 6 P.M.  Afterward, they went to a house across the street from the club, where they smoked marijuana and then started walking to Gibbs’s house.  As the three were walking, two young women drove up in an automobile, and Gibbs and Woods spoke to them.  Another vehicle with young women soon arrived, and one of its occupants began to argue with one of the young women in the first vehicle.  Both automobiles then left.  When Gibbs, Woods, and Lynch reached Gibbs’s house, Lynch continued on to his own house to change his clothes.  Gibbs and Woods went into Gibbs’s house.  Thereafter, Gibbs and Woods went outside a few times to see if Lynch and another friend had arrived.  Gibbs at one point was standing alone on the sidewalk in front of his house, and the defendant approached from the side of Gibbs’s house through a small alleyway between a store and the house; the defendant “kind of surprised [Gibbs].”  The defendant was wearing a black jacket and dark clothes.  He mentioned that he wanted to go see another friend, Larry Brown (see note 2, supra), and Gibbs agreed.  Woods at that point walked out of Gibbs’s house.  The defendant did not know Woods; the two had never met.  Gibbs introduced them:  “This is Bear,^[[3]] . . . this is Wakime.”

The three started off toward Brown’s house, walking along Green Street.  As they were walking, Gibbs’s father pulled up in a van and told them to get out of the street, and the defendant “slipped off to the side,” away from the van.  After Gibbs’s father drove off, the three resumed walking, with Gibbs in the middle, Woods on the left, and the defendant on the right side of Gibbs.  Suddenly the defendant was no longer in Gibbs’s view; “it seemed like [the defendant] just stopped short.”  Immediately thereafter, Gibbs heard a “pop” — a gunshot — and he fell to the ground; he had been shot.[4]

Marlene Scott, who was at her mother’s house on Newbury Street, heard gunshots in rapid succession and looked out the window to see a man in dark clothing and a hood running down Green Street toward Newbury Street.  Scott jumped back from the window and then went outside.  She recognized Gibbs, who was lying in the street, and began to scream.  She did not immediately notice anyone else, but then heard a voice from behind a snowbank calling for help; it was Woods.  Scott ran over to Woods and asked, “Who shot you?  Who shot you?” to which Woods replied, “The kid I was with.”  Scott followed up, “Do you know him?” and Woods replied, “No.”

     Sergeant Kenneth LaGrice of the Brockton police department arrived on the scene very soon after the shooting.  He first went over to Gibbs, who was lying unconscious in the center of Green Street; he observed a large pool of blood around Gibbs’s head and several shell casings in the area of Gibbs’s body.  Soon after he arrived, LaGrice called for ambulances and medical assistance, and then heard Woods calling for help.  He found Woods lying at the base of a snow bank with a tall, thin, African-American woman nearby — Marlene Scott, whom he knew.  LaGrice asked Woods who had shot him, and Woods initially responded that he did not know, but when asked again, said, “I don’t know his name.”  Woods was “very excited, very scared,” and kept repeating that he had been shot and needed help.

     Woods was taken by ambulance to the emergency department of Cardinal Cushing Hospital.  He was awake and following commands when he arrived, but also was in respiratory distress, having suffered multiple gunshot wounds, including one that had pierced his lung.  He was able to speak in short, coherent sentences for a brief period of time, but was deteriorating quickly.  Dr. David Mudd, who first treated Woods, asked Woods what had happened to him.  Dr. Mudd remembered Woods saying something to the effect of “he had been smoking with some friends and somebody came up to him and shot him.”  Woods did not say who had shot him.  Because the hospital was not able to treat Woods’s injuries fully, he was taken by helicopter to Brigham and Women’s Hospital,where he died the next morning.

     Gibbs, meanwhile, was taken to Brockton Hospital and then transported to Boston City Hospital. He had suffered a bullet wound to the neck.  The bullet entered the right side of Gibbs’s jaw and exited through the back left side of his neck, tracking from front to back in a slightly downward direction; it fractured Gibbs’s second and third vertebrae and severed his spinal cord at that location, instantly paralyzing him from the neck down.

In the early morning hours of February 20, 1994, while Gibbs was still in the hospital, Brockton police Detective Clifford Hunt showed Gibbs a photographic array.  Gibbs identified the defendant,[5] and an arrest warrant for murder (murder warrant) for the defendant was issued.  The defendant learned that the police were looking for him, and at approximately 10 A.M. on February 20, the defendant went to the Brockton police station, accompanied by an attorney, James Gilden.  With Gilden present, the defendant was given Miranda warnings, signed a form acknowledging that he understood his rights, agreed to speak to the police, and gave a statement, predominantly in narrative form, in which he described meeting Gibbs and Woods (whom he said he did not previously know) on February 18 outside Gibbs’s house, walking with Gibbs and Woods toward Brown’s house, and encountering young women who arrived in two different automobiles.  As the defendant, Gibbs, and Woods approached Newbury Street, the defendant noticed an old Cougar automobile pulled over at the corner of Newbury and Green Streets, and saw the passenger in the vehicle, an African-American man who looked like a “body builder,” get out, after which Gibbs said, “I feel like something is going to happen tonight.”  The defendant then heard a gunshot and saw Gibbs fall.  The defendant did not see anyone in front of them, but thought he saw an automobile up on the hill in the distance with its lights on. He started running through back yards to get to his house; while running, he heard two more shots and an automobile take off.  The defendant did not call police and did not go outside when he heard police arrive because he did not want to be a witness.

State Trooper Michael Robert Arnold investigated the scene of the shooting and found four spent cartridge casings clustered together and one spent projectile.  Another spent projectile was recovered from Woods’s body.  Arnold opined that the four cartridge casings were fired from the same weapon and that the two projectiles were fired from the same weapon.  He further opined that the locations of the casings and projectile at the scene and the results of ballistics testing were consistent with one gun being used, although he could not scientifically connect the projectiles and the casings to one gun.  Arnold found no damage to the projectiles that would suggest that they had ricocheted off any solid objects before striking the two victims.  The casings, which were from a nine millimeter weapon, would travel only a distance of fifteen feet or usually less when fired, meaning that the shooter was in close proximity to where the casings were found.  Testing on the victims’ clothes revealed no gunshot residue, suggesting that the muzzle of the weapon used was further than three feet from the victims at the time it was fired.

Woods had suffered three, possibly four gunshot wounds, three of which were entrance wounds into his back and one of which was an entrance wound into his left thigh.  The entrance wound on Woods’s thigh was atypical in appearance.  The entrance point was irregularly round with irregular scraping around it, which could have been caused by the bullet passing through another object or ricocheting off something before hitting the thigh.  In the opinion of Dr. James Weiner, the medical examiner who performed the autopsy, one of the bullets likely entered Woods’s back and exited through the abdomen, then “reentered the left groin area and this [was] one continuous wound track if the left leg was raised away from the body and lifted up.”

The defendant’s statement to the police was introduced in evidence as part of the Commonwealth’s case.  The defense theory at trial was that while the defendant was walking with Gibbs and Woods on February 18, 1994, an unknown assailant or assailants had appeared suddenly and shot Woods and Gibbs, causing the defendant immediately to flee toward his own house.  The defendant did not testify, but calledOfficer Mark Reardon of the Brockton police as a witness.  Reardon testified that on February 18, he received a police radio transmission about a shooting on Green Street and an alert to be on the lookout for a dark colored, four-door vehicle with tinted windows that had fled the scene.  Shortly thereafter, he observed a vehicle with three African-American male occupants who appeared uneasy as a result of Reardon’s observation.  The vehicle was a red, two-door Ford Tempo.  Over the police radio, Reardon described the vehicle; he was told that the vehicle did not appear to be the one that fled the scene of the shooting, but a request was made to pull the vehicle over because it was wanted in connection with an incident that had occurred earlier in the evening.  Reardon pulled over the vehicle on Eagle Avenue and ordered the occupants out; the operator and one occupant ran from the scene.  Reardon held the other occupant at the scene.  He then searched the vehicle but did not find a gun or any casings in it.  The one occupant who had remained was arrested for several motor vehicle offenses.  The other occupants of the vehicle ultimately were identified.[6]  The woman who reported seeing a vehicle fleeing the scene of the shooting, Corrina Defrancesco, was taken to Eagle Avenue by another Brockton police officer, Michael Mather; she observed the vehicle that Reardon had pulled over, and then went to the Brockton police station to give a statement or make a report.[7]

Procedural history.  On April 19, 1994, a grand jury returned indictments charging the defendant with murder in the first degree and armed assault with intent to murder.  The defendant filed a motion to suppress his statements on voluntariness grounds as well as ineffective assistance of his first counsel, Gilden.  An evidentiary hearing was held on March 28, 1995, and the motion was denied by a Superior Court judge (first motion judge).  A different Superior Court judge (trial judge) presided over the defendant’s jury trial that took place in September, 1995.  Following his convictions, the defendant filed an appeal and then moved to stay the appeal pending a motion for a new trial.

The defendant filed his first motion for a new trial in November, 2005.[8] He claimed, among other issues, that his statement to police was admitted improperly because of the ineffective assistance provided by the defendant’s first attorney, Gilden; that the Commonwealth failed to give proper notice of expert testimony; that the defendant’s trial counsel was ineffective; that Woods’s statement, relied upon to identify the defendant as the shooter, was erroneously admitted as an excited utterance; and that the Commonwealth failed to produce a critical witness, Defrancesco, thus depriving the defendant of a substantial defense.  After discovery, a nonevidentiary hearing on the motion was held in April, 2008, before a different Superior Court judge (second motion judge), the trial judge being no longer available.  The second motion judge denied the motion for a new trial in October, 2009, and the defendant’s appeal from that denial was consolidated with his direct appeal.  In 2013, the defendant filed a second motion for a new trial on the ground that the court room was improperly closed during jury empanelment; yet another Superior Court judge (third motion judge) denied this motion without a hearing in November, 2014.  The defendant’s appeal from that denial also was consolidated with his direct appeal.

Discussion.  The issues the defendant raises in this appeal are ones that he raised in his two motions for a new trial.  A motion for a new trial that is considered in conjunction with a defendant’s direct appeal from a conviction of murder in the first degree is reviewed pursuant to G. L. c. 278, § 33E.  See, e.g., Commonwealth v. Morgan, 449 Mass. 343, 353 (2007).

1.  Admission of Woods’s statement.  The Commonwealth filed a motion in limine before trial to admit as a spontaneous utterance or dying declaration Woods’s statement to Marlene Scott that “the kid [he] was with” shot him.  At a hearing on the motion, defense counsel did not object to its being admitted as a spontaneous utterance.  The judge allowed the statement to come in without specifically deciding whether it qualified as a spontaneous utterance because of defense counsel’s concession that it did.

The defendant now argues on appeal that Woods’s statement to Scott was so unreliable that its admission violated his due process rights under the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.  He also contends that Woods’s statement to Scott was testimonial, as the term is described in Crawford v. Washington, 541 U.S. 36, 51-53 & n.4 (2004),[9] and therefore admitted in violation of his right to confrontation under the Sixth Amendment to the United States Constitution.

a.  Reliability of Scott’s testimony.  The defendant challenges the existence of sufficiently reliable evidence that Scott in fact spoke to Woods on February 18, 1994, to permit her to testify at trial to Woods’s alleged statement about who shot him.  He asserts that the trial judge, in his role as gatekeeper, should have prevented the evidence from reaching the jury because of its unreliability.  As support, the defendant notes, first, that Sergeant LaGrice arrived moments after Woods’s alleged statement to Scott and asked Woods who had shot him, to which Woods replied that he did not know; second, that Woods also told Dr. Mudd, who initially treated him at the hospital, that he did not know who shot him; and finally, that LaGrice testified that only one civilian was at the scene of the crime when he arrived and he ultimately identified that person as Defrancesco, not Scott, thereby suggesting that Scott was not at the scene.

The defendant’s argument fails.  Scott testified without equivocation that on the night of the shootings, she encountered Woods lying behind the snowbank and talked to him while waiting for the police to arrive.  Although the jury certainly were not required to believe Scott, nothing in the record suggests that she was incompetent to testify as a trial witness, or that she may have been impaired in any way on the date of the shootings.  Cf. Demoulas v. Demoulas, 428 Mass. 555, 563-564 (1998).  Moreover, contrary to the defense’s argument, Scott’s testimony was not contradicted at all by the testimony of LaGrice, and only weakly contradicted by Mudd.

LaGrice testified that Woods stated that he did not know who shot him or, more specifically, did not know the name of the person who shot him, while, according to Scott, Woods stated that “the kid” he was with shot him, but he did not know the person.  Woods and the defendant had met for the first time on the evening of the shooting, and the defendant was introduced to Woods by his nickname, “Bear.”  Thus, the jury reasonably could have found that Woods’s statements to Scott and LaGrice were substantively consistent.  See Commonwealth v. Bush, 427 Mass. 26, 30-31 (1998).  Mudd testified that he could not recall Woods’s exact words, but “remember[ed] [Woods] saying something about smoking that day and not knowing who had shot him.”  In contrast to Scott and LaGrice, however, Mudd did not ask Woods who shot him, and his conversation with Woods occurred in the hospital at a point where Woods was in respiratory distress and deteriorating quickly.  To suggest that the lack of congruence, in some respects, between Scott’s and Mudd’s testimony renders the former so unreliable that it was incompetent expands the concept of testimonial incompetence completely beyond recognition.  That two different witnesses may provide inconsistent or conflicting testimony does not turn one of them into an unreliable witness; making judgments about witness credibility and the weight of witness testimony is the function of the jury.  See Commonwealth v. Lydon, 413 Mass. 309, 311 (1992), citing Commonwealth v. Martino, 412 Mass. 267, 272 (1992).

Finally, the defendant’s claim that LaGrice identified Defrancesco, not Scott, as the person at the scene with Woods when he arrived is not supported by the record.  LaGrice testified that he arrived on the scene forty-five seconds after hearing of the shooting, and observed a tall, thin, African-American woman assisting Woods.  He identified the woman as Scott, who is African-American, and whom LaGrice knew.  LaGrice then mistakenly testified that Scott had reported seeing a vehicle in the area of the shooting,butafter his recollection was refreshed, he testified that Scott was not the woman who made the report about the vehicle.  The woman who reported the vehicle ultimately was identified as Defrancesco, who is white.[10]

b.  Testimonial nature of Woods’s statement.  Testimonial statements are inadmissible unless the declarant is unavailable for trial and the defendant had a prior opportunity for cross-examination.  Crawford, 541 U.S. at 68.  “‘[O]ut-of-court statements made in response to questions from people who are not law enforcement agents’ . . . are not testimonial per se” (emphasis in original).  Commonwealth v. Burgess, 450 Mass. 422, 429 (2008), quoting Commonwealth v. Gonsalves, 445 Mass. 1, 11 (2005), cert. denied, 548 U.S. 926 (2006).  A statement nevertheless may be testimonial in fact if a “reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting a crime.”  Gonsalves, supra at 3.  See Commonwealth v. Nesbitt, 452 Mass. 236, 244 (2008).

Woods’s statement to Scott clearly was not testimonial per se because she was not a law enforcement agent.  See Burgess, 450 Mass. at 429.  Nor was it testimonial in fact.  When Scott found Woods, he had just been shot at least three times.  One bullet tore through Woods’s liver and right lung, and another tore through several loops of Woods’s bowel.  The gravity of these injuries, and the immediate threat they posed, likely would “preclude a reasonable person in [Woods’s] position from anticipating any nonimmediate future event, including a police investigation or a prosecution of the perpetrator.”  Nesbitt, 452 Mass. at 249.  At the time that Scott and then LaGrice found Woods lying against the snowbank, Woods was “very excited, very scared” and kept repeating that he had been shot and needed help.  In such circumstances, Woods’s statement that the “kid” Wood was with shot him was not testimonial in fact, and was admissible.  See id.[11]

2.  Ineffective assistance of defendant’s first attorney and admission of defendant’s prearraignment statement to police.  The defendant argues that the advice he received from his attorney, Gilden, at the time the defendant gave a statement to the police, was constitutionally ineffective under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, and constituted “error” warranting reversal of his convictions under G. L. c. 278, § 33E.  See Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).[12]

a.  Background.  The first motion judge held an evidentiary hearing on the defendant’s motion to suppress his statement.  We summarize here his findings.[13]  Detective Hunt responded to the scene of the shootings on February 18, 1994, and as a result of his interviews of witnesses and investigation, he sought and obtained a murder warrant for the defendant in the early morning of February 20.  The defendant’s uncle contacted Gilden and asked him to represent the defendant.  Gilden telephoned the defendant, who told Gilden about a shooting that had taken place in Brockton and stated he was scared to go to the police station and tell what had happened.[14]  Gilden then telephoned the Brockton police around 8 A.M. on February 20.  He spoke to Hunt, who informed him that Hunt had a murder warrant for the defendant.  Gilden picked up the defendant and drove him to the Brockton police station around 10 A.M. on the same day.  On the way, Gilden advised the defendant that he should tell the truth if he gave a statement.

The first motion judge further found that, when the defendant and Gilden arrived at the police station, they were taken to the interrogation room.  Hunt showed both Gilden and the defendant the murder warrant, and both reviewed it without comment.  Hunt then placed the defendant under arrest.[15]  Hunt next read the defendant the Miranda rights from a sheet while Gilden was present and listening.  The defendant signed a waiver form that stated that he understood his rights.  Gilden witnessed the waiver.  Thereafter, the defendant gave a statement to Hunt.  Gilden was present throughout, but at no time did the defendant ask to speak privately to Gilden.  Hunt did not record the statement, but took notes of what the defendant said.  The interview was approximately one hour long, and thereafter the defendant was taken to be booked.  At the time of making the statement, the defendant was twenty-one years old and of average intelligence, appeared calm and responsive, and did not appear to be under the influence of drugs or alcohol.

Based on these findings, the first motion judge denied the defendant’s motion to suppress, concluding that the defendant’s waiver of his Miranda rights was knowing and voluntary, that the defendant’s statement was voluntary, and that he had received competent assistance of counsel.  The judge’s memorandum of decision does not mention or refer to the defendant’s affidavit filed in support of his motion to suppress.  That affidavit, dated February 7, 1995, sets out a number of the facts contained in the judge’s findings, but also adds the following.  While being driven by Gilden to the Brockton police station, the defendant told Gilden what he knew about the shooting, and Gilden told the defendant that all he had to do was explain to the police what happened, which the defendant understood to mean that if he told the police what he had told Gilden, he would be free to leave the police station thereafter.  When they arrived at the police station, the defendant was taken into an interrogation room, accompanied by Gilden and a police officer.  Gilden and the police officer spoke together outside the room, and when they returned to the room, Gilden told the defendant, “[T]ell him what you told me,” and the defendant did so.  When the defendant finished, the officer arrested him for murder.  If the defendant had known that he was a suspect in the murder investigation, and not simply a witness, he never would have made a statement; he had been arrested many times in the past and was aware that a person under arrest has the right not to make any statement.

Gilden’s affidavit, dated March 23, 1995, stated that after he contacted the defendant at the request of the defendant’s uncle, the defendant said that the police were looking for him in connection with a shooting in Brockton, and asked Gilden to accompany him to the police station because he was scared to go alone.  Gilden then called the Brockton police and spoke to Hunt, who informed him of the murder warrant for the defendant.  Gilden indicated that he would bring his client to the station.  Gilden picked up the defendant in Boston and drove to Brockton.  On the way, the defendant showed Gilden where the shooting had taken place and “told [him] how the shooting had occurred.”  The two also talked about the defendant speaking to the police and telling the police what the defendant had told Gilden concerning the shooting.  The defendant never asked Gilden whether he should speak to police, and “[t]he only advi[c]e that [Gilden] gave [the defendant], before [they] went to the police station, was that [the defendant] should tell the truth if he gave a statement to police.”  When they arrived at the police station, Hunt showed Gilden the Miranda form and Gilden witnessed the defendant read and sign it; the defendant did not ask Gilden any questions about the Miranda rights he was given.  Gilden was present throughout the time the defendant spoke to Hunt, but the defendant never asked to speak to Gilden while he was giving his statement.  After the defendant completed his statement, he was taken by Hunt to be booked, and just before he left, the defendant said, “‘You mean they are really going to hold me?,’ or words to that effect.”[16]  Gilden left the police station after the defendant was booked, but the next day, Hunt telephoned and told him that the defendant wanted to speak to the police again and asked Gilden to come to the station.  Gilden did so, spoke privately with the defendant, suggested to the defendant that “further conversation with the police would not be helpful,” and told the police that the defendant would not be speaking with them.[17]

b.  Discussion.  The defendant argues that he was entitled to the effective assistance of counsel under the Fifth Amendment and art. 12 in connection with his giving a statement during Hunt’s custodial interrogation of him on February 20, 1994.

The right to counsel protected by the Sixth Amendment does not come into play until the time of arraignment.  See, e.g., United States v. Gouveia, 467 U.S. 180, 188 (1984).  To date, this court has followed the same rule with respect to art. 12.  See, e.g., Commonwealth v. Anderson, 448 Mass. 548, 553-554 (2007).  See also Commonwealth v. Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228, 234-235 (2004) (“The right to trial counsel under art. 12 attaches at least by the time of arraignment”).  However, a defendant is entitled to the assistance of counsel under the Fifth Amendment to protect his or her right against self-incrimination.  In Miranda v. Arizona, 384 U.S. 436, 469 (1966), the United States Supreme Court recognized that the right to have counsel present at a custodial interrogation is “indispensable to the protection of the Fifth Amendment privilege.”  See Johnson v. New Jersey, 384 U.S. 719, 729 (1966) (“Our opinion in Miranda makes it clear that the prime purpose of these rulings is to guarantee full effectuation of the privilege against self-incrimination, the mainstay of our adversary system of criminal justice”).  The same is true to an even greater extent under art. 12.  See Commonwealth v. Mavredakis, 430 Mass. 848, 858-860 (2000).  See also Commonwealth v. Clarke, 461 Mass. 336, 345-346 (2012); Commonwealth v. McNulty, 458 Mass. 305, 314-319 (2010).  This court has emphasized the need under art. 12 to ensure that the abstract rights listed in Miranda, including the right to speak with an attorney, are “actualize[d]” and “substantively meaningful.”  Mavredakis, supra at 860.

With respect to art. 12, we have not before explicitly considered whether the right to the assistance of counsel that art. 12 provides in connection with a prearraignment, custodial interrogation is a right to the effective assistance of counsel.[18]^,[19]  We do so here, and in that connection, we agree with the defendant that a person’s right to speak with counsel is not “actualize[d]” or “substantively meaningful” if counsel fails to provide at least minimally competent advice.  Otherwise, counsel is not meeting the purpose of ensuring that a defendant have a right to consult counsel in connection with a custodial interrogation.  See Mavredakis, 430 Mass. at 859-860.  See also Commonwealth v. Morales, 461 Mass. 765, 779-780 (2012) (discussing Mavredakis, supra, and McNulty, 458 Mass. at 314-319).[20]

Our case law concerning the right to counsel in other settings supports this conclusion.  For example, when a statute provides a right to the assistance of counsel, we have held that it is a right to the effective assistance of counsel, governed by the standard in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).  See, e.g., Poe v. Sex Offender Registry Bd., 456 Mass. 801, 811–812 (2010) (sex offender classification hearing); Commonwealth v. Griffin, 404 Mass. 372, 374-375 (1989) (appearance before grand jury).  In Commonwealth v. Patton, 458 Mass. 119, 128 (2010), which raised the issue whether a defendant is entitled to the effective assistance of counsel in a probation revocation proceeding, in discussing cases such as Poe and Griffin, we concluded that “[t]he principle that emerges from these cases is that in a proceeding that involves a person’s liberty or a fundamental liberty interest, in which a person has a right to appointed counsel, from whatever source, the person is entitled to the effective assistance of counsel whether counsel is appointed or retained.”  A custodial interrogation of a criminal suspect certainly involves a fundamental liberty interest.  It follows that the constitutionally based right to counsel in this setting must be recognized as a right to the effective assistance of counsel.  See Commonwealth v. Moreau, 30 Mass. App. Ct. 677-679 (1991), cert. denied, 502 U.S. 1049 (1992).[21]

The defendant contends that Gilden provided ineffective assistance by instructing or advising him to make a statement to police that had an inculpatory effect — at a minimum, it placed the defendant at the scene of the crime — and by providing such advice without conducting any investigation of the case and despite the fact that the defendant had been arrested for murder.[22]  Although it appears, if we accept the averments in Gilden’s affidavit, that Gilden, with the guidance of the defendant, conducted some investigation of the scene of the shootings, we agree that the advice he thereafter gave the defendant was constitutionally ineffective under art. 12.

According to the first motion judge’s findings, Gilden had been informed that the police held a murder warrant for the defendant by the time Gilden picked up the defendant to drive to the Brockton police station, and Gilden was actually shown the warrant when he arrived at the station.  We understand Gilden’s affidavit to indicate that Gilden never discussed with the defendant his right against self-incrimination or any of the risks inherent in giving a statement to the police before the defendant made his statement, and also said nothing to the defendant before, during, or after Hunt read him the Miranda rights and inquired about the defendant’s understanding and willingness to speak to the police.  Rather, it appears from the record before us that the only statement Gilden made during the defendant’s interview with Hunt was to direct the defendant to tell Hunt what the defendant had told Gilden.

In this context, as the defendant’s lawyer, Gilden had an obligation at the very least to discuss with his client the self-incrimination privilege and the potential consequences of giving a statement to the police.  Compare Commonwealth v. Smiley, 431 Mass. 477, 481 (2000) (counsel not ineffective where he appropriately advised defendant of consequences of making statement to police and of waiving privilege against incrimination).  This was especially true in light of Gilden’s very brief and very limited investigation of the facts of the case, namely, driving by the location where the shooting had occurred and hearing the defendant’s version of the events.  In that version, the defendant denied any involvement in the shooting, and instead placed the blame on a third-party culprit.  Given that Gilden already knew of the murder warrant, it should have been obvious to him that the defendant’s description of events differed materially from the view of the case taken by the police.  Before advising the defendant during the drive to the police station simply to “tell the truth if he gave a statement to the police,” and particularly before stating to the defendant during the police interview to “tell [the police] what [he] told [Gilden],” Gilden should have made an effort at a minimum to understand the factual basis for the murder charge that had been lodged against the defendant.[23]  Although, according to Gilden, the defendant did not ask Gilden any questions while he was reviewing the Miranda form or giving his statement, this did not relieve counsel of the affirmative duty to discuss the risks and consequences of making a statement to the police with the defendant.  See American Bar Association Standards for Criminal Justice, Defense Function, Standard § 4-3.7(a) (4th ed. 2015) (“Defense counsel should inform the client of his or her rights in the criminal process at the earliest opportunity, and . . . take necessary actions to vindicate such rights . . .”).[24]

The Commonwealth argues that the defendant knowingly and voluntarily waived his Miranda rights and agreed to speak with the police, as both the first and second motion judges determined to be the case, and therefore the defendant’s statement to the police is admissible without more.  We do not agree.  It is of course true that a suspect with whom the police seek to conduct a custodial interrogation may validly waive his or her Miranda rights, including the right to counsel, without an attorney being present and without having first been advised by an attorney.  But where, as here, the suspect, accompanied by his attorney, appears for what will be a custodial interview, the suspect has already exercised his right to have an attorney present to assist him, and he is entitled to receive effective legal assistance from that attorney.  See Moreau, 30 Mass. App. Ct. at 679.  It would undermine the promise of Miranda and Mavredakis if it were otherwise.  The affidavits of the defendant and Gilden are consistent in terms of the advice Gilden gave to his client on February 20, 1994.  Together, these affidavits indicate, and we conclude, that Gilden’s performance as the defendant’s attorney on that date fell “measurably below that which might be expected from an ordinary fallible lawyer.”  Saferian, 366 Mass. at 96.  In the context of a case of murder in the first degree, the question that arises is whether Gilden’s error created a substantial likelihood of a miscarriage of justice.  See Wright, 411 Mass. at 681.  The answer requires consideration of two further points:  (1) whether Gilden’s erroneous legal advice caused the defendant to give his statement to the police; and (2) if so, whether the evidence of the statement at trial “was likely to have influenced the jury’s conclusion.”  Id. at 682.

We focus on the second point first, because if the jury were not likely to have been influenced by the defendant’s statement, there would be no need to consider the first point.  If we assume that the defendant’s statement to the police was a direct consequence of Gilden’s ineffective assistance, the error did create a substantial likelihood of a miscarriage of justice.  The defendant’s statement, admitted at trial, placed him directly at the scene of the crime at the exact time the crime was committed, strongly reinforcing Gibbs’s trial testimony.  This was significant because the actual shooting incident here happened very quickly, and Gibbs did not see who shot him.  And although Woods identified the shooter as “the kid [he] was with,” the strength of the identification may have been subject to question, given Woods’s condition at the time he was speaking and the fact that he had been shot in the back, suggesting the shooter was behind him and out of view.  Moreover, the prosecutor, in her closing, was able to use the statement extremely effectively, pointing out the differences between what the defendant had stated in comparison to Gibbs, and arguing that the differences demonstrated that the defendant was lying and pointed to consciousness of guilt on his part; based on these statements, the judge gave a consciousness of guilt instruction to the jury.[25]  In all these circumstances, the jury were likely to have been influenced by the defendant’s statement in reaching their verdicts.

Given this result, we must consider the first point, that is, whether Gilden’s ineffective legal advice caused the defendant to give his statement to the police.  The defendant states in his affidavit that he would not have made a statement if he had understood the police had identified him as a suspect who may have committed the murder, and that he only made the statement because he assumed that he was merely a witness — an assumption he states was based directly on Gilden’s ineffective advice to tell the police what he had told Gilden.  However, the first motion judge found — presumably based on the testimony of Hunt, the sole witness at the motion hearing — that before he gave his statement, the defendant was both shown the murder warrant and placed under arrest, or advised that he was (see note 15, supra) — circumstances that certainly might suggest the defendant in fact did know that he was a suspect when he spoke.  More significantly, these circumstances also might suggest — given the defendant’s acknowledgement in his affidavit that he was well aware a criminal suspect has the right not to speak to the police — that the defendant chose to speak independently of any advice or directive from Gilden.[26]  However, the defendant did not testify at the evidentiary hearing held by the first motion judge, and nothing in the judge’s opinion indicates that the judge considered or had even read the defendant’s affidavit, which, in contrast to Gilden’s, was not introduced as a motion exhibit.  As for the second motion judge, he did not hold an evidentiary hearing.[27]  In any event, neither the first nor the second motion judge could appropriately make findings of fact concerning the defendant’s knowledge or the reasons he gave his statement based on the defendant’s affidavit or affidavits alone.

In these circumstances, we conclude that it is necessary to vacate the denial of the defendant’s first motion for a new trial and to remand the case to the Superior Court for an evidentiary hearing before the second motion judge.  This hearing has a narrow purpose.  The second motion judge must determine whether the defendant’s statement to the police on that date was the direct consequence of Gilden’s deficient legal advice, or whether, independently of Gilden’s advice, the defendant made his own voluntary and knowing decision to waive his right against self-incrimination and to speak to the police.[28]  If the judge finds that the defendant gave his statement directly because of Gilden’s deficient advice, the defendant’s first motion for a new trial should be allowed; if the judge, however, determines that the defendant independently decided to give his statement, the motion should be denied.

We turn to the defendant’s remaining arguments.

3.  Prosecutorial misconduct.  The defendant contends that his due process rights were violated because the prosecutor in her closing argument misused the facts at trial to such an extent that she rendered the trial fundamentally unfair.  He argues that in her closing, the prosecutor misrepresented “the most exculpatory” set of facts in the case, which he claims included (1) Defrancesco’s observation of a vehicle driving away from the scene of the shooting with its lights off; (2) Officer Reardon’s stop of a vehicle matching the description soon thereafter and the immediate flight taken by two of the automobile’s occupants; and (3) Defrancesco’s inspection of the vehicle stopped by Reardon to determine whether it was the same one — which, in fact, Defrancesco had stated it was, as shown by the recently discovered second page of Hunt’s written summary of his interview of Defrancesco.[29]  The defendant’s claim in this regard is that the prosecutor first misrepresented specific points of evidence concerning these facts, culminating in her misleading statement that the automobile that Reardon stopped “had nothing to do with this [case].”  We disagree that this statement was improper.  What the evidence showed was that, after stopping the vehicle, Reardon found no evidence of a gun or any shell casings.  It was also shown that the police eventually determined the identities of the passengers, but there was no evidence suggesting that the passengers had anything to do with the shooting of Woods and Gibbs.  Based on this information, it was not improper for the prosecutor to draw and argue the inference that the vehicle had nothing to do with the shooting.  See Commonwealth v. Murchison, 418 Mass. 58, 59-60 (1994).

The defendant also contends that the reason Defrancesco could not be located and therefore could not be called to testify about the vehicle leaving the scene of the shooting was that the prosecutor negligently or intentionally suppressed evidence of the fact that Defrancesco had a criminal record, which might have led to information concerning Defrancesco’s then current address or location.  The defendant analogizes this to those situations in which a prosecutor “exploit[s] the absence of evidence that had been excluded at his request.”  Commonwealth v. Carroll, 439 Mass. 547, 555 (2003).

The record does not support the defendant’s argument.  Rather, it reflects that the prosecutor had tried a number of times to subpoena Defrancesco to appear at the trial, with no success.[30]  It is true that Defrancesco actually had three pending charges in the Brockton Division of the District Court Department at the time of the trial in this case, presumably being prosecuted by others in the prosecutor’s office.  It also might be the case that an examination of case records associated with those charges may have revealed a more accurate address for DeFrancesco than the ones used by the prosecutor in this case.  However, there is nothing in this record to indicate that the prosecutor herself knew of these pending charges, and in the absence of information showing that the charges had been entered in a probation record for Defrancesco or some similar database, we cannot say that she intentionally or negligently failed to take appropriate steps to discover them.  In fact, defense counsel, with the assistance of an investigator, sought unsuccessfully to locate Defrancesco throughout the trial.

The defendant also takes issue with the prosecutor’s statement during closing that Trooper Arnold, who testified on behalf of the Commonwealth as an expert witness concerning ballistics, opined that only one gun was used during the shooting.[31]  We agree that the prosecutor’s statement was improper.  During trial, the jury heard from Arnold that the evidence was consistent with a single gun being used, but that he could not say scientifically that this was the case.[32]  The trial judge then instructed the prosecutor that she could not elicit Arnold’s opinion whether one gun had been used.  Defense counsel, however, did not object to the prosecutor’s reference in her closing to Arnold having an opinion that there was only one gun; the question, therefore, is whether the prosecutor’s improper remark created a substantial likelihood of a miscarriage of justice.  It did not.

The trial judge instructed the jury that closing arguments were not evidence and only facts in evidence could be considered during deliberations.  More significantly, as Arnold’s quoted testimony reflected (see note 32, supra), in his view, the ballistics evidence in the case strongly supported a conclusion that only one gun had been used, but Arnold could not so opine as a matter of ballistics certainty.  In the circumstances, there appears to be little risk that the prosecutor’s comment improperly led the jury to accept a conclusion about Arnold’s opinions that was not supported by evidence properly before them.

4.  Right to a public trial.  In his second motion for a new trial, the defendant argued for the first time that his Sixth Amendment right to a public trial was violated when his brother and mother were prevented from entering the court room during jury empanelment.  “It is well settled that the violation of a defendant’s right to a public trial is structural error requiring reversal.”  Commonwealth v. Wall, 469 Mass. 652, 672 (2014).  Nevertheless, even structural error is subject to waiver.  Id.  The third motion judge determined that the defendant’s failure to raise this issue in his first motion for a new trial constituted waiver.

In Wall, we stated that “[w]here defense counsel did not object to any alleged court room closure at trial, and the defendant failed to raise the claim in his first motion for a new trial, . . . the defendant’s right to a public trial during jury empanelment has been waived.”  Wall, 469 Mass. at 673.  See Commonwealth v. Morganti, 467 Mass. 96, 102-103, cert. denied, 135 S. Ct. 356 (2014); Commonwealth v. Alebord, 467 Mass. 106, 112-113, cert. denied, 134 S. Ct. 2830 (2014).  The defendant argues, however, that Wall is inapplicable to his case because any waiver amounted to ineffective assistance of counsel.  Specifically, he asserts that trial counsel and counsel handling his first motion for a new trial provided ineffective assistance because they were unaware that exclusion of the public from jury selection violated the defendant’s Sixth Amendment right.[33]  This ignorance of the law, the defendant claims, constituted unreasonable performance requiring reversal of his convictions.  See Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014).

The defendant’s argument fails.  In light of our decisions in Morganti and Alebord — cases that, like this one, were tried in the Superior Court in Brockton before 2007 — there is little if any basis to claim that either trial counsel or the defendant’s counsel at the time of his first motion for a new trial was ineffective.  See Morganti, 467 Mass. at 97-98, 103-105.  See also Alebord, 467 Mass. at 114.[34]

In any event, the defendant’s claim of ineffective assistance of counsel fails because he has not shown prejudice.  Where a defendant procedurally waives his Sixth Amendment public trial claim, and later raises the claim as one of ineffective assistance of counsel, as is the case here, “the defendant is required to show prejudice from counsel’s inadequate performance” — that is, a substantial likelihood of a miscarriage of justice — and “the presumption of prejudice that would otherwise apply to a preserved claim of structural error does not apply.”  Commonwealth v. LaChance, 469 Mass. 854, 856 (2014), cert. denied, 136 S. Ct. 317 (2015).  See Commonwealth v. Jackson, 471 Mass. 262, 268-269 (2015).  The defendant has not presented any evidence of prejudice, that is, evidence tending to show that closure of the court room during empanelment may have had “an ‘effect on the judgment,’ or undermine[d] our ‘reliance on the outcome of the proceeding.’”  LaChance, supra at 859, quoting Strickland v. Washington, 466 U.S. 668, 691, 692 (1984).  Nor do we find such evidence on independent review.  The defendant’s Sixth Amendment public trial claim therefore is waived, and his claim of ineffective assistance of counsel for waiving his Sixth Amendment right fails.

Conclusion.  For the reasons discussed in this opinion, we conclude as follows.  With respect to the defendant’s direct appeal, the convictions of murder in the first degree and armed assault with intent to murder are affirmed.  With respect to the defendant’s appeal from the order denying his second motion for a new trial, that order is affirmed.  Finally, with respect to the defendant’s appeal from the order denying his first motion for a new trial, that order is vacated, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

14-P-1873                                       Appeals Court

COMMONWEALTH  vs.  KRISTIE L. FIRMIN.

No. 14-P-1873.

Middlesex.     November 6, 2015. – February 10, 2016.

Present:  Katzmann, Milkey, & Carhart, JJ.

Constitutional Law, Jury.  Jury and Jurors.  Practice, Criminal, Instructions to jury.

Complaint received and sworn to in the Framingham Division of the District Court Department on February 29, 2012.

The case was tried before Douglas W. Stoddart, J.

Jin-Ho King for the defendant.
Charles Koech, Assistant District Attorney, for the Commonwealth.

     CARHART, J.  The defendant appeals from her conviction by a District Court jury of operating under the influence of alcohol, second offense, G. L. c. 90, § 24(1)(a)(1), on the basis that the trial judge gave a coercive jury instruction.[1]  We agree.[2]

Background.  In the early morning hours of February 29, 2012, a Framingham police officer stopped a vehicle he had been following after he observed it making some erratic movements.  The officer determined that the defendant was driving, and that she was under the influence of alcohol.  The defendant was arrested and tried for operating a motor vehicle under the influence of alcohol.

After closing arguments and following his general instructions on the law, the trial judge stated:

“If I can give you some helpful hints — because we do this every day — it’s not fun or easy to be a juror, we know that.  So, to the extent that you could create a collegial atmosphere in the room, that would be great.  So, when the door shuts, it would be very helpful if people didn’t make pronouncements, you know, ‘This is the way I’m going to vote’, because then it’s hard to extract somebody from a corner and our goal is to get a unanimous verdict.

“If we don’t get a unanimous verdict, it’s called a mistrial or a hung jury and we have to do this case all over again and we’re booked out until May now.^[[3]]  So, we’d really appreciate it if you guys could resolve this.  So, I guess I would suggest that, maybe let everybody, you know, just chat informally, not take formal votes right away and then, at some point during the deliberations, if you see a ground swell of support in one direction or the other, then do whatever voting or whatever you need to do to get to that ultimate point.”

The judge continued, “Now, in terms of timing, I think what we’ll do is give you the case now, but we’re going to cut you loose at one o’clock.  If you have a verdict real quick before 1:00, we’ll take it, but otherwise, we’ll see you back at 2:00.”  Court adjourned at 12:41 P.M. and the jury went to lunch from 1 P.M. until 2 P.M.  Court reconvened at 2:28 P.M., whereupon the jury delivered the verdict.

Discussion.  Because the defendant did not object to the judge’s instruction, we review only to determine “whether the timing [or the content] of the charge [was error] creat[ing] a substantial risk of a miscarriage of justice.”  Commonwealth v. Scanlon, 412 Mass. 664, 678 (1992).  We agree with the defendant that the timing and content of the judge’s instruction created such a risk in this case.

“The Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights guarantee a criminal defendant the right to a trial by an impartial jury.”  Commonwealth v. Guisti, 434 Mass. 245, 251 (2001).  “Article 29 of the Massachusetts Declaration of Rights also guarantees ‘the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.’”  Guisti, at 251 n.8.  An “impartial” jury consists of “jurors who will conscientiously apply the law and find the facts.”  Wainwright v. Witt, 469 U.S. 412, 423 (1985).  While “[t]he weight and credibility of the evidence is the province of the jury,” Commonwealth v. Gomez, 450 Mass. 704, 711 (2008), jurors must “apply the law as interpreted by the court.”  United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969), cert. denied sub nom. Boardman v. United States, 397 U.S. 991 (1970).  Thus “[w]hen instructing the jury, a judge must avoid language that may coerce the jury into reaching a verdict.”  Commonwealth v. O’Brien, 65 Mass. App. Ct. 291, 294 (2005).  See Commonwealth v. Villafuerte, 72 Mass. App. Ct. 908, 910 (2008).

Here, the judge gave an instruction similar to that set forth in Commonwealth v. Tuey, 8 Cush. 1, 2-3 (1851), as modified by Commonwealth v. Rodriquez, 364 Mass. 87, 98-101, 101-102 (1973) (Appendix).  The so-called Tuey-Rodriquez charge “is an instruction designed to encourage the jury to reach a verdict, if possible,” Commonwealth v. Bresnahan, 462 Mass. 761, 766 n.4 (2012), and it is “the ‘orthodox approach’ to dealing with a deadlocked jury.”  Ray v. Commonwealth, 463 Mass. 1, 6 (2012).  In pertinent part, the instruction provides:

“[T]he verdict to which a juror agrees must . . . be his own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other.  You should consider that it is desirable that the case be decided. . . .  [I]t is your duty to decide the case, if you can conscientiously do so. . . .  [I]n conferring together, you ought to pay proper respect to each other’s opinions, and listen, with a disposition to be convinced, to each other’s arguments.”

Rodriquez, supra at 101 (Appendix).

We recognize that “[n]otification that the jury are deadlocked is not a prerequisite for the [Tuey-Rodriquez] charge; rather, it is within the judge’s discretion to give it.”  Commonwealth v. Wilson, 443 Mass. 122, 143 (2004).  However, we think that the judge abused his discretion here, when he instructed the jury, before it had begun deliberating, that (1) the jurors should “do whatever voting or whatever [they] need to do” to reach a verdict “if [they] see a ground swell of support in one direction or the other” because, “[i]f we don’t get a unanimous verdict . . . we have to do this case all over again and we’re booked out until May now”; (2) the court would “really appreciate it if [the jury] could resolve this”; and (3) the court would take a verdict if the jury reached one between 12:41 P.M., when they adjourned to deliberate, and 1:00 P.M., when they recessed for lunch.

“The purpose of the [Tuey-Rodriquez] instruction is to encourage a purportedly deadlocked jury to consider seriously and with an open mind the views and arguments of each member.”  Ray, supra at 3 n.3.  See Commonwealth v. Jenkins, 416 Mass. 736, 747-748 (1994) (Liacos, J., dissenting).  It “is designed to urge the jury to reach a verdict by giving more serious consideration to opposing points of view.”  Commonwealth v. Carnes, 457 Mass. 812, 827 (2010).  Because it “has a ‘sting’ and can, if improperly phrased or improvidently given, risk ‘coercion’ of the jury to reach a verdict with which they are not fully comfortable,” Ray, supra at 6, quoting from Rodriquez, supra at 100, a Tuey-Rodriquez charge “should not be employed prematurely or indiscriminately.”  Commonwealth v. Rollins, 354 Mass. 630, 638 (1968).  See Rodriquez, supra at 100 (modified Tuey instruction may not be used prematurely); Jenkins, supra (Tuey-Rodriquez instruction should “never” be given prematurely); O’Brien, 65 Mass. App. Ct. at 296 (“instructions given to a jury that have not reached the point of deadlock may have an impermissibly coercive effect”).  “A judge crosses the line between enlightening the jurors’ understanding [of the law] and coercing them [into returning a verdict] when ‘he overcomes the will by the weight of his authority.’”  Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 34 (1984), quoting from Horning v. District of Columbia, 254 U.S. 135, 139 (1920) (Brandeis, J., dissenting).  We agree with the defendant that because the jury deliberations were not “due and thorough,” the judge’s instruction was “inappropriate.”  Carnes, supra at 829.

Moreover, the judge erroneously “digress[ed] from” the language of the approved Tuey-Rodriquez charge “with language compelling the jury to reach a verdict,” O’Brien, 65 Mass. App. Ct. at 295, such as stating that the case would have to be retried if they could not reach a verdict and the court was booked until May, that the jurors should do “whatever voting or whatever [they] need to do” if they saw a “ground swell of support” in either direction, and that the court would take the verdict if it was reached within the approximate twenty minutes before the lunch break.  See Villafuerte, 72 Mass. App. Ct. 910, quoting from O’Brien, 65 Mass. App. Ct. at 295 (“[A] judge may not depart from the Tuey-Rodriquez charge with language compelling the jury to reach a verdict by stating, for example, that ‘the case must at some time be decided’”).  Judges are advised not to stray from the express language of the Tuey-Rodriquez charge, Commonwealth v. Sosnowski, 43 Mass. App. Ct. 367, 374 (1997); O’Brien, 65 Mass. App. Ct. at 295, and they “must be particularly vigilant that there not creep into the[ir] phraseology any suggestion that the jurors are obligated to decide the case one way or another.”  Ibid.  See Commonwealth v. Brown, 367 Mass. 24, 31-32 (1975) (charge coercive where it strayed from Tuey and referenced the “cost in terms of money and effort and time that a case of this sort entails”).  Here, the judge also omitted “language requiring that the verdict to which a juror agrees must be ‘the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows,’ and that ‘it is [the juror’s] duty to decide the case, if [he] can conscientiously do so.’”  Id. at 32, quoting from Highland Foundry Co. v. New York, N.H. & H. R.R., 199 Mass. 403, 409 (1908).  The judge’s instruction went beyond the Tuey-Rodriguez charge in “(1) inform[ing] the jury that the case must at some time be decided and (2) tend[ing] to induce those jurors tentatively in the minority to be persuaded by those in the majority.”  Commonwealth v. Jones, 373 Mass. 423, 427-428 (1977).  We think that the judge’s instruction “may [have led] jurors to believe that they should compromise their own conscientious convictions in order to reach a verdict,” O’Brien, 65 Mass. App. Ct. at 296, and, in light of the fact that the jury returned a guilty verdict less than thirty minutes after returning from lunch, we agree that the instruction impermissibly “cast[s] the balance substantially more in favor of conviction.”  Brown, supra at 32.

Accordingly, the judgment is reversed and the verdict is set aside.

So ordered.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-11926

MICHAEL SKAWSKI & others[1]  vs.  GREENFIELD INVESTORS PROPERTY DEVELOPMENT LLC.

Hampden.     January 7, 2016. – February 11, 2016.

Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Jurisdiction, Land Court, Housing Court.  Land Court, Jurisdiction.  Housing Court, Jurisdiction.  Statute, Construction, Repeal.

Civil action commenced in the Hampden Division of the Housing Court Department on June 7, 2011.

A motion to dismiss was heard by Dina E. Fein, J., and the ruling was reported by her.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Thomas Lesser (Michael E. Aleo with him) for the plaintiffs.

Marshall D. Senterfitt (David S. Weiss with him) for the defendant.

Isaac J. Mass, for Citizens for Growth, amicus curiae, submitted a brief.

Ashley Grant, for Massachusetts Fair Housing Center, amicus curiae, submitted a brief.

GANTS, C.J.  On August 2, 2006, the Legislature enacted G. L. c. 185, § 3A, which established the permit session of the Land Court department and provided that “[t]he permit session shall have original jurisdiction, concurrently with the superior court department,” over civil actions adjudicating the grant or denial of permits for “the use or development of real property” where “the underlying project or development involves either [twenty-five] or more dwelling units or the construction or alteration of 25,000 square feet or more of gross floor area.”  St. 2006, c. 205, § 15.  At the time § 3A was enacted, G. L. c. 40A, § 17, authorized “[a]ny person aggrieved by a decision of the board of appeals or any special permit granting authority” to appeal to the Land Court, the Superior Court, the Housing Court, or the District Court.[2]  The issue before us is whether the Legislature, by enacting G. L. c. 185, § 3A, intended to grant exclusive subject matter jurisdiction to the permit session of the Land Court and to the Superior Court to hear this subset of major development permit appeals, or intended simply to create a permit session in the Land Court to hear these cases without eliminating the subject matter jurisdiction of the Housing Court to adjudicate this subset of appeals.  We conclude that the Legislature intended that major development permit appeals should be adjudicated only in the permit session of the Land Court or in the Superior Court.  We also conclude that, where the permit appeal in this case was timely filed in the Housing Court in accordance with G. L. c. 40A, § 17, the appropriate remedy is not to dismiss the case for lack of subject matter jurisdiction but to transfer the case to a court with jurisdiction, that is, the permit session of the Land Court or the Superior Court.[3]

     Background.  The defendant, Greenfield Investors Property Development LLC[4] (developer), seeks to build a retail development of not more than 135,000 square feet of commercial space in Greenfield (project).  On May 17, 2011, the planning board of Greenfield (planning board) granted a special permit in favor of the developer to construct the project, subject to various conditions.  The notice granting the special permit advised that “[a]n appeal from the decision of the [p]lanning [b]oard may be made by any person aggrieved pursuant to [G. L. c. 40A, § 17,] . . . within twenty (20) days after the date of filing of a notice of decision in the [o]ffice of the [t]own [c]lerk.”

The plaintiffs, who own property abutting the proposed development (abutters), filed a timely appeal to the grant of the special permit in the Housing Court on June 7, 2011.  On July 19, 2011, the defendants, without challenging the subject matter jurisdiction of the Housing Court, requested the Chief Justice of the Trial Court[5] to transfer the appeal from the Housing Court to the permit session of the Land Court, pursuant to G. L. c. 185, § 3A.  The abutters opposed the motion, and, on August 31, 2011, the then-sitting Chief Justice of the Trial Court denied the motion to transfer, without explanation.

The defendants then filed a motion for summary judgment, claiming that the abutters lacked standing to appeal the grant of the special permit and that their due process allegations failed to state a valid constitutional claim.  On January 15, 2013, the judge allowed the motion as to the due process claims but denied it as to standing, thereby allowing the abutters to proceed with their appeal of the special permit.

On December 28, 2012, the Appeals Court issued its decision in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass. App. Ct. 40, 43-44 (2012) (Buccaneer), where it held that G. L. c. 185, § 3A, deprived the Housing Court of subject matter jurisdiction to hear major development permit appeals.  In Buccaneer, the zoning board of appeals (board) denied the special permit for a major housing development and the developer filed an appeal in the permit session of the Land Court.  Id. at 40, 42.  The board filed a notice in the permit session to transfer the case to the Housing Court, invoking G. L. c. 185C, § 20, which provides that “[a]ny civil action within the jurisdiction of the housing court department which is pending in another [trial] court department may be transferred to the housing court department by any party.”  Id. at 41.  After the case was transferred to the Housing Court, the developer moved that it be remanded to the permit session of the Land Court; the motion was denied, and the board’s denial of the special permit was affirmed.  Id.  The Appeals Court declared that, “[b]y explicitly granting jurisdiction to the permit session and the Superior Court to hear permit-based civil actions involving large-scale projects, the Legislature implicitly denied such jurisdiction to the Housing Court.”  Id. at 44.  The court vacated the judgment and directed the Housing Court to remand the case to the permit session of the Land Court.  Id. at 45.

On January 25, 2013, the developer in this case, citing the Appeals Court decision in Buccaneer, moved to dismiss the appeal for lack of subject matter jurisdiction.  On February 26, the judge denied the motion but conditioned her denial on allowance of her request for administrative transfer of the case and herself to the Superior Court.  On February 28, the judge wrote a letter to the then-sitting Chief Justice of the Housing Court, requesting, in light of the “uncertainty” created by the Appeals Court decision in Buccaneer and the pending application for further appellate review in that case, that the instant case be transferred administratively to the Superior Court Department and that she be cross-designated and assigned to handle it.  The developer opposed the transfer.  The Housing Court Chief Justice failed to act on the request and, on July 25, the judge withdrew it and thereafter declared her intention to rule on the merits of the motion to dismiss.

On August 27, the judge denied the defendants’ motion to dismiss for lack of subject matter jurisdiction.  The judge noted that the procedural posture of this case differed from Buccaneer in that the plaintiffs here had initially filed their appeal in the Housing Court, not the permit session of the Land Court.  The judge distinguished the holding in Buccaneer, stating that “the Appeals Court ruled effectively that the developer’s choice of forum trumped the defendants’ right under G. L. c. 185C, § 20[,] to transfer the case to the Housing Court.”  The judge declared that the Housing Court had jurisdiction under G. L. c. 40A, § 17, to hear permit appeals and that, where the Chief Justice of the Trial Court[6] had exercised the discretion granted to him under G. L. c. 185, § 3A, to deny the developer’s request to transfer the case to the permit session of the Land Court, allowance of the defendants’ motion to dismiss “would deprive the plaintiffs entirely of their statutory right to judicial review of the [p]lanning [b]oard’s decision.”  The judge subsequently granted the joint motion of the parties to report her ruling to the Appeals Court pursuant to Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996).

The Appeals Court reversed the judge’s order denying the defendants’ motion to dismiss, concluding that the enactment of G. L. c. 185, § 3A, deprived the Housing Court of subject matter jurisdiction over major development permit appeals.  Skawski v. Greenfield Investors Prop. Dev., LLC, 87 Mass. App. Ct. 903, 905-906 (2015).  We granted the abutters’ application for further appellate review.

Discussion.  General Laws c. 185, § 3A, established the permit session of the Land Court and granted that session “original jurisdiction, concurrently with the superior court department,” over major development permit appeals.[7]  It also provides that, “[n]otwithstanding any other general or special law to the contrary, any action not commenced in the permit session, but within the jurisdiction of the permit session as provided in this section, may be transferred to the permit session, upon motion by any party to the chief justice of the trial court.”  G. L. c. 185, § 3A, fourth par.  The statute notes, however, that “[t]here shall be a presumption against more than one transfer of a case between any departments of the trial court.”  Id.

1.  Subject matter jurisdiction.  At the time § 3A was enacted in 2006, G. L. c. 40A, § 17, gave subject matter jurisdiction in all permit appeals to the Housing Court, along with the Land Court, Superior Court, and District Court, and G. L. c. 185C, § 20, gave any party the power to transfer such an appeal to the Housing Court if it were not initially filed there.  The question we must grapple with is whether the Legislature, by enacting § 3A, intended to divest the Housing Court of subject matter jurisdiction over what we call major development permit appeals (that is, appeals arising from action on any permit concerning the use or development of real property in projects that involve the construction of twenty-five or more dwelling units or 25,000 square feet or more of gross floor area) and to grant exclusive subject matter jurisdiction over such appeals to the permit session of the Land Court and to the Superior Court.

We use as our starting point the traditional tools of statutory interpretation.  “It is well established that ‘[a] statute is not to be deemed to repeal or supersede a prior statute in whole or in part in the absence of express words to that effect or of clear implication.’”  Commonwealth v. Palmer, 464 Mass. 773, 777 (2013), quoting Commonwealth v. Harris, 443 Mass. 714, 725 (2005).  The words of § 3A do not explicitly divest the Housing Court of jurisdiction over major development permit appeals.  Section 3A makes no reference to G. L. c. 40A, § 17, or to the subject matter jurisdiction over permit appeals granted to the Housing Court by that statute.  Nor does it grant “exclusive jurisdiction” over major development permit appeals to the permit session of the Land Court and to the Superior Court; it simply grants these courts “original jurisdiction” over these appeals.  Contrast G. L. c. 185, § 1 (“The land court department shall have exclusive original jurisdiction of the following matters:  . . .”); G. L. c. 212, § 3 (“The [superior] court shall have exclusive original jurisdiction of civil actions for the foreclosure of mortgages . . .”).

Therefore, if § 3A divests the Housing Court of jurisdiction over major development permit appeals, it must do so by “clear implication,” see Palmer, supra, that is, implication so clear that it overcomes our “strong presumption against implied repeal of a prior law.”  Dartmouth v. Greater New Bedford Reg’l Vocational Tech. High Sch. Dist., 461 Mass. 366, 374 (2012).  See generally 1A N.J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 23:10 (7th ed. 2009) (discussing judicially created presumption against repeal of prior laws by implication).  Implied repeal is clear where “the earlier statute ‘is so repugnant to and inconsistent with the later enactment covering the subject matter that both cannot stand.’”  See Dartmouth, supra at 374-375, quoting Doherty v. Commissioner of Admin., 349 Mass. 687, 690 (1965).  It may also be clear where the subsequent legislation comprehensively addresses a particular subject and impliedly supersedes related statutes and common law that might frustrate the legislative purpose.  See id. at 375-376, and cases cited.  See generally 1A N.J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction, supra at § 23:9 (discussing implied repeal where later legislation covers whole subject of earlier legislation and is intended as substitute).  Ultimately, the touchstone is “the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.”  Weems v. Citigroup Inc., 453 Mass. 147, 153 (2009), quoting Boston Police Patrolmen’s Ass’n v. Boston, 435 Mass. 718, 720 (2002).

Placing § 3A within the context of the larger legislative enactment illuminates the legislative purpose underlying the statute.  Section 3A is found in one of twenty-four sections in St. 2006, c. 205 (act), whose purpose is clear from its title, “An Act relative to streamlining and expediting the permitting process in the commonwealth,” and its preamble — “to forthwith expedite the permitting process in the commonwealth.”  To accomplish this purpose, the Legislature created a comprehensive statutory program that, among other things, (1) provided funding for technical assistance grants to assist State and local governments and agencies in streamlining their permitting processes, St. 2006, c. 205, §§ 2, 6; (2) provided for the appointment of a director of the permit regulatory office within the Executive Office of Economic Development to “serve as the state permit ombudsman to new and expanding businesses, [and] to provide one-stop licensing for businesses and development in order to streamline and expedite the process of obtaining state licenses, permits, state certificates, state approvals, and other requirements of law,” id. at § 4; and (3) provided expedited permitting for property designated as a “priority development site,” id. at § 11.  From the text of the act and its legislative history, it is plain that the Legislature sought to reduce the costs and delays of the permitting process required to conduct business and develop property.  See, e.g., State House News Service (Senate Sess.), July 25, 2006 (statement of Sen. Jack Hart) (“the number-one issue of concern to businesses here in the Commonwealth is the long permitting process.  It may take anywhere from three to five years for a business to get permitted. . . .  We’re not trying to supplant the process; we’re trying to expedite it”).

Section 3A, which is found in § 15 of the act, must be interpreted in light of that legislative purpose.  The abutters contend that the Legislature’s purpose in enacting § 3A was to create the permit session in the Land Court to hear these major development permit appeals, not to affect the jurisdiction of other court departments granted by G. L. c. 40A, § 17.  But, if its purpose were simply to create a new permit session in the Land Court, there would be no need to mention the concurrent original jurisdiction of the Superior Court.  By specifying that the Superior Court Department shared concurrent jurisdiction with the permit session of the Land Court, and not also specifying any other court department as having concurrent jurisdiction, the Legislature impliedly reflected its intent that these major development permit appeals be adjudicated only by these two courts.  See Commonwealth v. Russ R., 433 Mass. 515, 521 (2001) (“The Legislature enumerated three courts in the immunity statute, but did not include the Juvenile Court.  Accordingly, the Legislature’s actions suggest that it intended to exclude the Juvenile Court”); Bagley v. Illyrian Gardens, Inc., 401 Mass. 822, 824-825 (1988), and cases cited (“By explicitly singling out the Hampden County division of the Housing Court and granting it concurrent jurisdiction over such appeals, the Legislature implicitly denied such jurisdiction to the other divisions of the Housing Court”).  See also Tilman v. Brink, 74 Mass. App. Ct. 845, 852-854 (2009) (District Court cannot award attorney’s fees under G. L. c. 231, § 6F, because it is not included in statutory definition of “court” under G. L. c. 231, § 6E).  This interpretation is consistent with the statutory maxim, “expressio unius est exclusio alterius,” meaning “the expression of one thing in a statute is an implied exclusion of other things not included in the statute.”  See Bank of Am., N.A. v. Rosa, 466 Mass. 613, 619 (2013); Bagley, supra.

The comprehensive scope of the act further suggests that the Legislature intended to be equally comprehensive in declaring which court departments would have original jurisdiction to adjudicate major development permit appeals.  See Dartmouth, 461 Mass. at 375, quoting Doherty, 349 Mass. at 690 (noting that implied repeal may be found where “the Legislature enacts a law covering a particular field but leaves conflicting prior prescriptions unrepealed”).

Moreover, if we were to adopt the abutters’ interpretation of § 3A that the Housing Court continues to have jurisdiction to hear these cases, the legislative purpose in having these cases heard by the permit session of the Land Court would be frustrated because any party could exercise its authority under G. L. c. 185C, § 20, to transfer to the Housing Court any case that was filed in or transferred to the permit session of the Land Court.  The establishment of the permit session of the Land Court to hear major development permit appeals was an integral part of the act’s over-all plan to expedite the permitting process because § 3A establishes demanding time frames for the final disposition of such appeals in the permit session.[8]  See G. L. c. 185, § 3A, sixth and eighth pars.  Although a party could file a major development permit appeal in the Superior Court, § 3A allows any party, with the approval of the Chief Justice of the Trial Court, to transfer the appeal to the permit session.  See id. at § 3A, fourth par.  But, if the Housing Court continued to have jurisdiction over these cases, any party could invoke G. L. c. 185C, § 20, and ensure that the final disposition of the appeal would be decided, not by the permit session, but by the Housing Court.

A careful review of the legislative history suggests that the Legislature’s intent regarding jurisdiction over major development permit appeals evolved during the legislative process.  Initially, the Joint Committee on Labor and Workforce Development proposed in the House bill that a separate permit division of the Superior Court be established that “shall have original jurisdiction, concurrently with the Superior Court,” over all permit appeals.  2006 House Doc. No. 4741.  The bill also provided:

“Notwithstanding any other General Law to the contrary, any action not commenced in the Permit Division, but within the jurisdiction of the Permit Division . . . , shall be transferred to the Permit Division upon motion by any party to the Chief Justice for Administration of the Trial Courts.  There shall be a presumption against more than one transfer of a case between any Departments of the Trial Court.”  (Emphasis added.)

Id.  Under this bill, any party to any permit appeal had the right to transfer the appeal to the permit division.  It is doubtful that the proponents of this bill intended to divest the jurisdiction of the Land Court, Housing Court, and District Court over all permit appeals within the jurisdictional scope of G. L. c. 40A, § 17, if only because the presumption against more than one transfer of a case between trial court departments would make no sense if only the Superior Court Department had jurisdiction over these cases.  But under this bill, even with no limitation of jurisdiction, a developer could be assured that, if it wanted a permit appeal to be decided in the permit division, the appeal would be decided there.

The House bill was subsequently amended to establish a permit session in the Land Court rather than a permit division in the Superior Court.  2006 House J. 1659.  This amendment provided that the permit session “shall have original jurisdiction, concurrently with the superior court department,” over all permit appeals.  Id. at 1659-1660.   This amended version retained the language providing that, on motion by any party, the Chief Justice of the Trial Court “shall” transfer any permit appeal that was not in the permit session to that session.  Id. at 1660.

The House bill was then further amended in three other important ways.  First, the scope of jurisdiction of the permit session was limited to major development permit appeals; it no longer had jurisdiction over all permit appeals.  2006 House J. 1661.  Second, with respect to a party’s motion to transfer an appeal to the permit session, the word “shall” was struck and replaced with “may,” thereby giving the Chief Justice of the Trial Court the discretion to allow or deny a motion to transfer.  Id. at 1665.  Third, a provision was added declaring that where a party in the permit session claims a right to a jury trial, “then the action shall have a trial in the superior court.”[9]  Id.  See G. L. c. 185, § 25 (Land Court “shall hold no trials by jury”); G. L. c. 186, § 15 (where trial by jury is claimed, questions of fact resolved in Superior Court).  As a result of these amendments, a party to a major development permit appeal no longer has a right to have its case adjudicated in the permit session; it could request such a transfer, but the allowance of that transfer rests in the discretion of the Chief Justice of the Trial Court.  See 2006 House J. 1665.  And even if the appeal were filed in or transferred to the permit session, it would nonetheless be tried in the Superior Court if any party claimed a right to a jury trial.  See id.

We conclude that the clear implication of these amendments is that the Legislature intended that major development permit appeals be adjudicated in the permit session and, if they could not be, either because the Chief Justice of the Trial Court denied the motion to transfer the case to that session or because a party claimed a right to a jury trial, that they be adjudicated in the Superior Court Department, which was the department that had sole jurisdiction over permit appeals under the earlier version of the House bill and concurrent jurisdiction under the later version of that bill.  And, once the Legislature gave the Chief Justice of the Trial Court the discretion to deny transfer of cases to the permit session of the Land Court, even where no right to a jury trial was claimed, the only way the Legislature could effectuate this intent was to limit the scope of jurisdiction over these appeals to the permit session of the Land Court and the Superior Court.[10]  In short, we conclude that the clear implication of § 3A is that the Legislature wanted all major development permit appeals to be adjudicated either in the permit session of the Land Court or in the Superior Court and therefore limited jurisdiction over these cases to these courts.

2.  Remedy.  Having concluded that the Housing Court lacks jurisdiction to decide this major development permit appeal, we address whether the remedy should be the outright dismissal of the case, or transfer to a court with jurisdiction to decide it.  We conclude that transfer is the fair and appropriate remedy.[11]

The developer contends that the permit appeal should be dismissed for lack of jurisdiction and that, if the abutters wish to appeal the grant of the special permit, they should be required to refile their complaint in a court with jurisdiction.  The developer also made clear at oral argument, however, that were the abutters to refile, it would move to dismiss the refiled complaint as untimely, because G. L. c. 40A, § 17, requires that any such appeal be filed within twenty days after the planning board filed the notice of decision in the office of the town clerk, which occurred in 2011.  The result would be that the permit appeal would be procedurally barred, and the merits of the appeal would never be reached by a court.

We have long rejected dismissal in comparable circumstances.  “[W]hen a court of limited jurisdiction is confronted with a case over which its jurisdiction is doubtful or lacking, the court should not dismiss the case out of hand; rather, ‘the proper procedure is for the judge to ask the Chief Administrative Justice to transfer the case, or the judge, or both, to the appropriate department of the Trial Court.’”  Arno v. Commonwealth, 457 Mass. 434, 446 (2010), quoting Konstantopoulos v. Whately, 384 Mass. 123, 129 (1981).  Thus, in ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 607-608 (2000), where we concluded that the District Court lacked jurisdiction over a summary process action it had adjudicated, we stayed the order of dismissal to allow time for the judge to apply to the Chief Justice for Administration and Management to “appoint the District Court judge to sit as a Superior Court judge for the purposes of this case.”  Similarly, in Konstantopoulos, supra at 130, 138, where we concluded that the Probate Court lacked jurisdiction to review the revocation of an entertainment license, we did not dismiss the case but instead remanded the case to the Probate Court “with instructions to the judge to ask the Chief Administrative Justice to transfer the case, or the judge, or both to the Superior Court.”

Dismissal would be especially unfair here, where the abutters timely filed their appeal in a court that appeared at the time to have jurisdiction under G. L. c. 40A, § 17; where the defendants did not challenge the Housing Court’s jurisdiction until the Appeals Court issued its opinion in the Buccaneer case in 2012, eighteen months after the appeal was filed and well after the abutters might have filed a timely new appeal in the Land Court or Superior Court; and where our conclusion regarding the absence of jurisdiction in the Housing Court rests principally on the doctrine of implied repeal rather than the express language of § 3A.

Conclusion.  The order denying the defendants’ motion to dismiss is hereby vacated, and the case is remanded to the Housing Court, where the parties are to be given an opportunity to apply within thirty days to the Chief Justice of the Trial Court to have the case transferred either to the permit session of the Land Court or to the Superior Court.[12]  The Chief Justice of the Trial Court will act on that request forthwith.  Once the case is transferred, it should proceed expeditiously in the court selected by the Chief Justice, so that the parties may obtain a prompt decision on the merits.

So ordered.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-11876

COMMONWEALTH  vs.  KYLE L. JOHNSON.

Plymouth.     October 6, 2015. – February 12, 2016.

Present (Sitting at New Bedford):  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Identification.  Evidence, Identification.  Practice, Criminal, Identification of defendant in courtroom.

Indictments found and returned in the Superior Court Department on March 11, 2013.

A pretrial motion to suppress evidence was heard by Cornelius J. Moriarty, II, J.

An application for leave to prosecute an interlocutory appeal was allowed by Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court.  The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.

Edward Crane for the defendant.

Karen A. Newirth, James L. Brochin, & Jennifer H. Wu, of New York, & R.J. Cinquegrana, for The Innocence Project & another, amici curiae, submitted a brief.

Lisa Kavanaugh, Benjamin H. Keehn, Patrick Levin, Radha Natarajan, & Paul R. Rudof, Committee for Public Counsel Services, & David Lewis, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

GANTS, C.J.  The issue presented in this case is whether the motion judge, applying the common-law principles of fairness in Commonwealth v. Jones, 423 Mass. 99, 109 (1996), committed an abuse of discretion in allowing the defendant’s motion to suppress the victim’s identifications of the defendant as the intruder he had struggled with in his home.  The judge found that, through no fault of the police, the identifications were “impermissibly tainted by the suggestive circumstances.”  We provide guidance regarding the application of the Jones standard and conclude that the judge did not abuse his discretion in allowing the motion to suppress.[1]

Background.  We summarize the facts found by the motion judge, supplemented where necessary with undisputed evidence that was implicitly credited by the judge.  See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).

On September 21, 2012, Adebayo Talabi, the victim, received a telephone call from a neighbor that the door to his apartment was open.  He returned to his home and encountered a stranger, who was armed with a firearm, inside his apartment.  They struggled, and during the struggle the firearm went off, striking no one.  The intruder fled.  The victim reported the incident to the Brockton police department and described the assailant as a light-skinned black male wearing a gray hooded sweatshirt.  Brockton police Detective Jacqueline Congdon asked the victim to come to the police station to review booking photographs to see if he could identify the intruder, but he did not do so.

On September 27, 2012, the victim telephoned Brockton police Officer Scott Besarick and told Besarick he now knew the identity of the intruder.  Officer Besarick transferred the telephone call to Detective Congdon’s line, and the victim explained to her that he had recently spoken to his cousin, T.J. Hendricks, who lived in the Roxbury section of Boston and whose home had been broken into one day before the incident at the victim’s apartment.  The victim then added Hendricks to the telephone call so that it was a three-way call.  Hendricks said that the break-in at his Roxbury home had been captured in a video recording by a neighbor’s surveillance system that showed the person who had broken into his home.  By the “size and shape” of the person in the surveillance footage, Hendricks believed that the intruder “could possibly be” the defendant, who was the boy friend of a cousin of both Hendricks and the victim.  Hendricks obtained a photograph of the defendant and his girl friend taken by Hendricks’s mother at a cookout, which he forwarded to the victim.  The victim viewed the photograph and identified the defendant as the intruder he had discovered in his home.

Using this information, Detective Congdon assembled an eight-person photographic array containing the defendant’s photograph.  Detective Thomas Hyland met with the victim to show him the photographic array.  The victim positively identified the defendant’s photograph in the array as the man he discovered in his apartment.

The defendant was indicted on seven charges, including armed assault in a dwelling, in violation of G. L. c. 265, § 18A, and breaking and entering in the daytime, in violation of G. L. c. 266, § 17.  The defendant moved to suppress all out-of-court and in-court identifications of the defendant by the victim.  The motion judge held an evidentiary hearing at which Detectives Congdon and Hyland testified.  The judge found that the police did not violate the defendant’s constitutional rights in administering the photographic array but allowed the motion to suppress the two out-of-court identifications under the common-law principles of fairness recognized in Jones, 423 Mass. at 109, concluding that they were “impermissibly tainted by the suggestive circumstances.”  The motion judge also allowed the motion to suppress any in-court identification, concluding that the Commonwealth had failed to meet its burden of showing by clear and convincing evidence that an in-court identification would be based upon an independent source, citing Commonwealth v. Botelho, 369 Mass. 860, 868 (1976).  The Commonwealth moved for reconsideration of the ruling, which was denied, and then sought leave to appeal the motion judge’s decision.  A single justice allowed the application for interlocutory appeal, and we transferred the case to this court on our own motion.

Discussion.  Before we address whether the judge was correct to suppress the eyewitness identifications in this case, we set forth our law regarding the admissibility of eyewitness identifications.

1.  Law of eyewitness identifications.  a.  Out-of-court identifications made during a police identification procedure.  Where an out-of-court eyewitness identification arises from an identification procedure that was conducted by the police, the identification is not admissible under art. 12 of the Massachusetts Declaration of Rights if the defendant proves by a preponderance of the evidence that the identification was “so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process.”  Commonwealth v. Walker, 460 Mass. 590, 599 (2011), and cases cited.  “In considering whether identification testimony should be suppressed, the judge must examine ‘the totality of the circumstances attending the confrontation to determine whether it was unnecessarily suggestive.’”  Commonwealth v. Silva-Santiago, 453 Mass. 782, 795 (2009), quoting Commonwealth v. Odware, 429 Mass. 231, 235 (1999).  “Where the defendant satisfies this burden, the out-of-court identification is per se excluded as a violation of the defendant’s right to due process under art. 12 . . . .”  Walker, supra at 599 n.13.  See Commonwealth v. Johnson, 420 Mass. 458, 462-463 (1995).

Under our per se exclusion standard, a defendant must prove not only that the out-of-court identification procedure administered by the police was suggestive, but that it was “unnecessarily suggestive” (emphasis in original).  Commonwealth v. Crayton, 470 Mass. 228, 235 (2014), quoting Commonwealth v. Figueroa, 468 Mass. 204, 217 (2014).  This inquiry focuses on whether police had “good reason” to engage in a suggestive identification procedure.  Crayton, supra at 235-236.  Figueroa, supra.  See Commonwealth v. Austin, 421 Mass. 357, 361-362 (1995) (“good reason” to conduct showup depends on “the nature of the crime involved and corresponding concerns for public safety; the need for efficient police investigation in the immediate aftermath of a crime; and the usefulness of prompt confirmation of the accuracy of investigatory information, which, if in error, will release the police quickly to follow another track”).

By adopting a rule of per se exclusion under art. 12, we rejected the rule under the Fourteenth Amendment to the United States Constitution in which a motion judge must apply a two-step analysis to the question of admissibility.  Johnson, 420 Mass. at 464-465.  Under the Federal two-step analysis, the judge asks first whether the eyewitness identification was obtained by a police procedure that was unnecessarily suggestive.  See Manson v. Brathwaite, 432 U.S. 98, 110 (1977).  See also Perry v. New Hampshire, 132 S. Ct. 716, 726 (2012) (“A primary aim of excluding identification evidence obtained under unnecessarily suggestive circumstances . . . is to deter law enforcement use of improper lineups, showups, and photo[graphic] arrays”).  If it was, the judge then asks whether, notwithstanding the unnecessarily suggestive procedure, the eyewitness identification is reliable under “the totality of the circumstances.”  See Manson, supra.  Under Federal constitutional law, because “reliability is the linchpin,” the out-of-court identification, if found reliable, is admissible even where obtained through an unnecessarily suggestive procedure.  See id. at 110, 114.

We rejected the Federal reliability test regarding out-of-court identifications in part because it “does little or nothing to discourage police from using suggestive identification procedures.”  Johnson, 420 Mass. at 468.  We noted that, under the Federal standard, “[a]lmost any suggestive lineup will still meet reliability standards” and be admitted in evidence despite the unnecessary suggestiveness of the identification procedure.  Id., quoting Note, Twenty-Years of Diminishing Protection:  A Proposal to Return to the Wade Trilogy’s Standards, 15 Hofstra L. Rev. 583, 606 (1987).  We concluded that, if we were to adopt the Federal reliability test under art. 12, it would send “a message to police that, absent extremely aggravating circumstances, suggestive showups will not result in suppression.”  Johnson, supra.

Under our per se standard, the reliability of an out-of-court identification cannot save the admissibility of an unnecessarily suggestive out-of-court identification.  But we declared in Johnson, supra at 467, that “the per se approach does not keep relevant and reliable identification evidence from the jury” because the Commonwealth may admit a subsequent identification if it proves by clear and convincing evidence that the identification came from a source independent of the suggestive procedure.

b.  Out-of-court identifications made without police wrongdoing.  Where an out-of-court eyewitness identification is suggestive through no fault of the police, suppression cannot deter police misconduct because there is none.  Yet, as we recognized in Jones, 423 Mass. at 109, where a witness’s identification of a defendant arises from highly or especially suggestive circumstances, its admissibility “should not turn on whether government agents had a hand in causing the confrontation” because “[t]he evidence would be equally unreliable in each instance.”  A judge, applying “[c]ommon law principles of fairness,” may decline to admit an unreliable eyewitness identification that resulted from a “highly” or “especially” suggestive confrontation with the defendant.  Id.[2]

Among our “common law principles of fairness” is the evidentiary rule that a judge has discretion to exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice.”  Crayton, 470 Mass. at 249 n.27, quoting Mass. G. Evid. § 403 (2014).  A judge’s authority to exclude a suggestive and unreliable eyewitness identification under Jones is an exercise of this broader authority articulated in Mass. G. Evid. § 403.  See Commonwealth v. Alcide, 472 Mass. 150, 166 (2015), quoting Jones, supra at 107 (“A judge’s authority to exclude severely unreliable identification testimony is closely related to his or her more general ‘discretion to exclude evidence that is more prejudicial than probative’”).[3]

A motion to suppress an identification under Jones is similar to a motion to suppress an identification under art. 12 in that the defendant must timely file the motion before trial, see Mass. R. Crim. P. 13 (d) (2), as appearing in 442 Mass. 1516 (2004), and bears the burden of proof by a preponderance of the evidence.  See Walker, 460 Mass. at 604-605.  It is also similar in that the evidentiary hearing on the motion should be conducted and ruled on before trial, so that the Commonwealth and the defendant have the opportunity to challenge the ruling through an interlocutory appeal under Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996).  But a suppression ruling under Jones differs in two fundamental ways from the suppression ruling that a judge makes under art. 12 where the police are alleged to have obtained an eyewitness identification through an unnecessarily suggestive identification procedure.

First, the standard of admissibility is different; admissibility is determined not by a rule of per se exclusion, because there is no police misconduct to deter through suppression, but by weighing the probative value of the identification against the danger of unfair prejudice, and determining whether the latter substantially outweighs the former.

The danger of unfair prejudice arises because the accuracy of an identification tainted by suggestive circumstances is more difficult for a jury to evaluate.  “Jurors . . . tend to be unaware of . . . how susceptible witness certainty is to manipulation by suggestive procedures or confirming feedback.”  Commonwealth v. Gomes, 470 Mass. 352, 373 (2015), quoting State v. Lawson, 352 Or. 724, 778 (Appendix) (2012).  “Social science research has shown that a witness’s level of confidence in an identification is not a reliable predictor of [its] accuracy . . . , especially where the level of confidence is inflated by its suggestiveness.”  Crayton, 470 Mass. at 239, citing Supreme Judicial Court Study Group on Eyewitness Evidence:  Report and Recommendations to the Justices 19 (July 25, 2013) (Study Group Report).  See Crayton, supra at 239 n.15, quoting Wells & Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Court’s Reliability Test in Light of Eyewitness Science:  30 Years Later, 33 Law & Hum. Behav. 1, 12 (2009) (“Studies have shown . . . that ‘confirmatory suggestive remarks from the lineup administrator [like ‘Good, you identified the actual suspect’] consistently inflate eyewitness certainty for eyewitnesses who are in fact mistaken’”).  Yet, studies have shown that juries tend to give great weight to a witness’s confidence in an identification.  See Perry, 132 S. Ct. at 739 (Sotomayor, J., dissenting) (“Study after study demonstrates that . . . jurors place the greatest weight on eyewitness confidence in assessing identifications even though confidence is a poor gauge of accuracy” [footnotes omitted]).  See also Study Group Report, supra at 69-70, citing Leippe, Eisenstadt, & Rauch, Cueing Confidence in Eyewitness Identifications: Influence of Biased Lineup Instructions and Pre–Identification Memory Feedback Under Varying Lineup Conditions, 33 Law & Hum. Behav. 194, 194 (2009), and Wells, Lindsay, & Ferguson, Accuracy, Confidence, and Juror Perceptions in Eyewitness Identification, 64 J. Applied Psychol. 440, 446 (1979) (“Studies show that eyewitness confidence is the single most influential factor in juror determinations regarding the accuracy of an eyewitness identification”).

Suggestive identification procedures may also affect a witness’s memory regarding the quality of his or her observation that led to the identification.  See Gomes, 470 Mass. at 373 (“Preidentification feedback may contaminate the witness’s memory”).  In one study, witnesses who received confirmatory feedback reported “‘a better view of the culprit, a greater ability to make out details of the face, greater attention to the event, [and] a stronger basis for making an identification,’ compared to witnesses receiving no feedback.”  Id. at 374 n.35, quoting Wells & Bradfield, “Good, You Identified the Suspect”:  Feedback to Eyewitnesses Distorts Their Reports of the Witnessing Experience, 83 J. Applied Psychol. 360, 366 (1998).  See Commonwealth v. Collins, 470 Mass. 255, 263 (2014).

In short, suggestiveness is likely to inflate an eyewitness’s certainty regarding an identification and to alter the eyewitness’s memory regarding the quality of his or her observation of the offender to conform to the eyewitness’s inflated level of confidence in the identification.  We recognized this danger, and the effect it could have on a jury’s ability accurately to evaluate identification evidence, in Jones, where we declared that “cross-examination and a judge’s jury instruction concerning eyewitness identification testimony” could not “fairly protect the defendant from the unreliability” of the identification in that case.  Jones, 423 Mass. at 110.

The probative value of the identification depends on the strength of its source independent of the suggestive circumstances of the identification.  See Allen v. Moore, 453 F.2d 970, 975 (1st Cir.), cert. denied, 406 U.S. 969 (1972) (“the firmer the contemporaneous impression, the less is the witness subject to be influenced by subsequent events”).  In determining the strength of an identification’s independent source, we consider such factors as the quality of the witness’s opportunity to observe the offender at the time of the crime, the amount of time between the crime and the identification, whether the witness’s earlier description of the perpetrator matches the defendant, and whether the witness earlier identified another person as the perpetrator or failed to identify the defendant as the perpetrator.  See Johnson, 420 Mass. at 464; Botelho, 369 Mass. at 869.  Another factor is the witness’s prior familiarity with the person identified, where that person is a witness’s family member, friend, or long-time acquaintance.  See Model Jury Instructions on Eyewitness Identification, 473 Mass. 1051, 1054 (2015).  After weighing the risk of unfair prejudice arising from the suggestiveness of the identification against the strength of its independent source, the judge must determine whether the identification is so unreliable that it would be unfair for a jury to give it any weight in their evaluation of the evidence.  If it is, the judge must rule it inadmissible.

Second, the standard of appellate review under art. 12 differs from the standard of review under the common-law principles of fairness articulated in Jones.  Where an identification arises from a police procedure, we apply the standard appropriate for review of a decision implicating constitutional rights:  we review a judge’s findings of fact to determine whether they are clearly erroneous but review without deference the judge’s application of the law to the facts as found.  See Commonwealth v. Watson, 455 Mass. 246, 250 (2009).  Where an identification does not arise from a police procedure, admissibility rests on an evidentiary judgment regarding the reliability of the identification, so we review under the abuse of discretion standard and ask “whether the judge’s decision resulted from ‘a clear error of judgment in weighing the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives.’”  Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

c.  In-court identifications.  Where a judge excludes an out-of-court identification arising from a suggestive police procedure under our art. 12 standard of per se exclusion, the judge must still consider whether to admit a subsequent out-of-court or in-court identification by the witness.  Where a witness’s out-of-court identification is excluded, the Commonwealth may offer a subsequent out-of-court or in-court identification by the witness if the Commonwealth proves by clear and convincing evidence that the subsequent identification is reliable because it rests on a source independent of the unnecessarily suggestive confrontation.  Johnson, 420 Mass. at 463-464.  Botelho, 369 Mass. at 867-868.  We recognize that we have recently declared that an “in-court identification is comparable in its suggestiveness to a showup identification” and have prohibited its admission in the absence of a showing of “good reason” where there was no out-of-court identification of the defendant by the witness before trial, Crayton, 470 Mass. at 236, 241, or where the out-of-court identification by the witness was “something less than an unequivocal positive identification of the defendant,” Collins, 470 Mass. at 262.  We need not consider in this case whether the reasoning in Crayton and Collins dictates that we eliminate or revise the independent source doctrine as applied to in-court identifications because the identifications here were not obtained through any fault of the police.  We will await an appropriate case to address that issue.

But this is an appropriate case to consider whether the independent source doctrine applies to an in-court identification where both out-of-court identifications were declared inadmissible under common-law principles of fairness.  We conclude that it does not apply.  Where the suggestiveness does not arise from police conduct, a suggestive identification may be found inadmissible only where the judge concludes that it is so unreliable that it should not be considered by the jury.  In such a case, a subsequent in-court identification cannot be more reliable than the earlier out-of-court identification, given the inherent suggestiveness of in-court identifications and the passage of time.  See Model Jury Instructions on Eyewitness Identification, 473 Mass. at 1055 endnote j, quoting Study Group Report, supra at 31-32 (“The more time that elapses between an initial observation and a later identification procedure . . . the less reliable the later recollection will be”).  In sum, because a judge declares an out-of-court identification to be inadmissible under Jones only where it is unreliable, the Commonwealth cannot prevail in proving by clear and convincing evidence that the witness’s in-court identification would be reliable.

2.  Application of law to the facts of this case.  We turn now to the Commonwealth’s arguments that the judge abused his discretion in declining to admit in evidence the victim’s out-of-court and anticipated in-court identifications of the defendant.  The Commonwealth contends that the identifications may be excluded under Jones only if they were made under “highly” or “especially” suggestive circumstances and that the judge abused his discretion in finding that the circumstances here met that standard.  In Jones, we characterized the witness’s confrontation with the defendant as both “highly suggestive” and “especially suggestive,” but we did not define either term or clarify whether they were two different characterizations of the same standard.  See Jones, 423 Mass. at 109.  Nor have we done so in subsequent cases that applied the Jones standard.

The Commonwealth contends that the “degree of suggestiveness required for exclusion” under Jones‘s common-law rule “is higher than that required for exclusion based on improper law enforcement procedures, since no possible deterrent effect is involved.”  We disagree.  Where an identification is obtained by law enforcement, our rule of per se exclusion means that the out-of-court identification must be suppressed where it derived from an unnecessarily suggestive procedure even if the identification was reliable because of the strength of its independent source.  Accordingly, we have set a high standard:  the identification must be “so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process.”  Walker, 460 Mass. at 599.  Where, as here, there was no misconduct by the police in obtaining the identification, suggestiveness, by itself, does not mandate suppression.  Rather, the danger of unfair prejudice arising from the suggestive circumstances will always be weighed against the independent source of the identification, with reliability the ultimate measure.  Because suggestiveness simply triggers a reliability analysis, the suggestiveness standard need not be set so high.  To trigger a Jones analysis, the circumstances surrounding the identification need only be so suggestive that there is a substantial risk that they influenced the witness’s identification of the defendant, inflated his or her level of certainty in the identification, or altered his or her memory of the circumstances of the operative event.  Where the independent source of an identification is slim, this level of suggestiveness may be sufficient to support a finding of inadmissibility; where the independent source is substantial, a greater level of suggestiveness would be needed to support a finding that the danger of unfair prejudice substantially outweighs the probative value of the identification.[4]

We recognize that the victim’s identification of the defendant in this case was less suggestive than the identification in Jones.[5]  But the judge did not err in concluding that it was sufficiently suggestive to trigger a reliability analysis.  The judge reasonably found that Hendricks suggested to the victim that the man who invaded the victim’s home on September 21, 2012, might have been the same man he suspected broke into his own home the previous day — a man who was connected to both of them because he was the boy friend of their cousin.  The judge reasonably could have found a substantial risk that these suggestive circumstances influenced the victim when he examined the cookout photograph of the defendant and identified the defendant as the intruder from that photograph and from the subsequent photographic array.  The judge also reasonably could have found a substantial risk that this suggestion affected the witness’s level of certainty in the identification and his recollection of his observations of the intruder during the incident.

The judge also did not err in giving little probative weight to the independent source of the identification.  The judge noted that the victim’s encounter with the intruder was brief and his description meager:  a light-skinned black male wearing a gray hooded sweatshirt, with no information regarding the intruder’s height, weight, or facial hair, or the lighting conditions in the apartment.  The judge also noted from his own observation that the defendant was not light-skinned.  In view of the substantial deference given to the motion judge under the abuse of discretion standard, we conclude that the judge did not abuse his discretion in allowing the motion to suppress the identifications.  We therefore affirm the allowance of the defendant’s motion to suppress the out-of-court and in-court identifications of the defendant by the victim.

So ordered.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-11854

SJC-11853

ROBERT M. DiCARLO  vs.  SUFFOLK CONSTRUCTION CO., INC., & others;[1] PROFESSIONAL ELECTRICAL CONTRACTORS OF CONNECTICUT, INC., third-party defendant.

BERNARD J. MARTIN & another[2]  vs.  ANGELINI PLASTERING, INC., & others.[3]

Suffolk.  Middlesex.     October 8, 2015. – February 12, 2016.

Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ.

Workers’ Compensation Act, Action against third person, Settlement agreement, Insurer.  Lien.  Statute, Construction.

Civil action commenced in the Superior Court Department on March 29, 2007.

A petition for settlement was heard by Frances A. McIntyre, J.

A proceeding for interlocutory review was heard in the Appeals Court by Judd J. Carhart, J.  After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Civil action commenced in the Superior Court Department on September 15, 2011.

A petition for settlement was heard by Dennis J. Curran, J.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Wystan M. Ackerman for Twin City Fire Insurance Company & another.

Charlotte E. Glinka for Bernard Martin & another.

Thomas R. Murphy for Robert M. DiCarlo.

Paul M. Kessimian & David J. Pellegrino, for American Insurance Association, amicus curiae, submitted a brief.

Annette Gonthier Kiely, Michael C. Najjar, & J. Michael Conley, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.

LENK, J.  Under Massachusetts law, employees who receive workers’ compensation benefits may not sue their employers for claims arising from work-related injuries.  See G. L. c. 152, § 24.[4]  Employees may, however, file claims against third parties for damagesarising from those injuries.  See G. L. c. 152, §§ 15, 24.  When an employee recovers damages from a third party, the workers’ compensation insurer is statutorily entitled to a lien on the recovery in the amount that the insurer paid to the employee in benefits.  See G. L. c. 152, § 15.  In these two cases, we are asked to ascertain the extent of this lien and, in particular, to clarify whether the lien attaches to damages paid by a third party for an employee’s pain and suffering.

The cases involve two employees, Robert M. DiCarlo and Bernard J. Martin, who were injured in the course of their employment, collected workers’ compensation benefits, and then reached settlement agreements with third parties including damages for, among other things, their pain and suffering.  The same insurer insured both employers.[5]  The insurer sought reimbursement under G. L. c. 152, § 15, from the employees’ recoveries, including their awards for pain and suffering.  In DiCarlo’s case, a Superior Court judge rejected a settlement agreement providing that the insurer would not have a lien on the damages for pain and suffering, concluding that the insurer’s lien attached to DiCarlo’s entire recovery.  DiCarlo appealed, citing the Appeals Court’s decision in Curry v. Great American Ins. Co., 80 Mass. App. Ct. 592, 595 (2011) (Curry), which held that an insurer’s lien does not attach to damages paid for pain and suffering because workers’ compensation does not cover those harms.  In Martin’s case, a Superior Court judge approved a settlement agreement similar to the agreement rejected by the judge in DiCarlo’s case; the insurer appealed from this decision.

Relying in both cases on its precedent in Curry, the Appeals Court determined that the employees’ awards for pain and suffering were exempt from the insurer’s liens.  See DiCarlo v. Suffolk Constr. Co., 86 Mass. App. Ct. 589 (2014); Martin v. Angelini Plastering, Inc., 86 Mass. App. Ct. 1122 (2014).  We granted the insurer’s applications for further appellate review and combined the two cases for argument.  We conclude, similarly, that an insurer’s lien does not extend to damages allocated to an employee’s pain and suffering.

1.  Background and procedural history.  In October, 2004, DiCarlo suffered serious injuries to his back while working as an electrician at a construction site.  The injuries resulted in ongoing physical and emotional suffering.  In the wake of these injuries, the workers’ compensation insurer for DiCarlo’s employer paid him workers’ compensation benefits for medical expenses ($ 48,431.16) and for lost wages ($ 233,387.95).

DiCarlo and his wife then filed a tort action in the Superior Court against the defendants:  Walter Brook Crossing, LLC, the owner of the construction site where DiCarlo worked; and Suffolk Construction Co., Inc., the contractor managing that site.  The defendants then filed third-party complaints against Professional Electrical Contractors of Connecticut, Inc. (Professional Electrical), seeking indemnification.  The defendants and Professional Electrical thereafter reached an agreement with DiCarlo to settle all claims for $ 100,000.  After reaching this agreement, the parties presented a proposed settlement agreement to the court as required by G. L. c. 152, § 15.  The agreement allocated thirty-five per cent of the settlement to DiCarlo’s pain and suffering, indicating specifically that the amount would not be subject to the insurer’s lien.

A Superior Court judge reviewed the settlement agreement and, as required by G. L. c. 152, § 15, gave the insurer an “opportunity to be heard” on the fairness of the settlement.  The insurer objected to the agreement, arguing that, the Curry case notwithstanding, its lien should attach to the award for pain and suffering.  The judge agreed with the insurer and declined to approve the settlement.  DiCarlo appealed, and the Appeals Court reversed.  See DiCarlo v. Suffolk Constr. Co., supra at 594.

Martin was injured in August, 2010, while working as an electrician at a construction site.  Since then, he has suffered ongoing physical pain and mental anguish.  The insurer paid Martin $ 566,392.94 in benefits.[6]  Martin and his wife thereafter filed a tort action against Angelini Plastering, Inc., a subcontractor at the construction site where Martin was injured, and Shawmut Design and Construction, the general contractor managing that site.  The parties agreed to settle all claims for $ 1 million.

In a settlement agreement filed pursuant to G. L. c. 152, § 15, the parties requested that thirty per cent of the payment be allocated to Martin’s pain and suffering, and that the amount be exempt from the insurer’s lien.  A different Superior Court judge approved the settlement, over the insurer’s objection that the award for pain and suffering should be included in its lien.  The insurer, as an interested party, appealed from the judge’s decision, and a panel of the Appeals Court affirmed.  See Martin v. Angelini Plastering, Inc., supra.

2.  Discussion.  General Laws c. 152, § 15 (§ 15),[7] generally provides that, where an injured employee collects workers’ compensation benefits and then recovers damages for the same injury from a third-party tortfeasor, “[t]he sum recovered [from the third party] shall be for the benefit of the [workers’ compensation] insurer.”  The “sum” to which the insurer is entitled is described, in the next sentence, as “the gross sum received in payment for the injury.”  G. L. c. 152, § 15.

The nub of the dispute before us concerns the meaning of the phrase “gross sum received in payment for the injury,” and, in particular, the meaning of the word “injury.”  The employees urge that “injury” be construed narrowly to mean only those injuries for which workers’ compensation benefits are payable, thereby excluding pain and suffering from its purview and, by consequence, excluding damages for pain and suffering from the reach of an insurer’s lien.  The insurer, on the other hand, advocates a more expansive view of the term “injury” as used in the phrase “gross sum received in payment for the injury.”  By including pain and suffering within the meaning of “injury,” all damages awarded the employee would be subject to the insurer’s lien.[8]  For the reasons that follow, we conclude that both statutory language and legislative intent support the narrower meaning of “injury,” and that damages for pain and suffering are not within the insurer’s lien.

Like all statutory provisions, § 15 “must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.”  Galenski v. Erving, 471 Mass. 305, 309 (2015), quoting Worcester v. College Hill Props., LLC, 465 Mass. 134, 139 (2013) (College Hill).  “In interpreting the meaning of a statute, we look first to the plain statutory language.”  College Hill, supra at 138.

As mentioned, the workers’ compensation statute provides an insurer with a lien on the “gross sum received in payment for the injury” (emphasis supplied).  The insurer here urges that we interpret this phrase in light of other uses of the term “injury” in G. L. c. 152, the workers’ compensation act, where the word often appears to refer to the totality of harm suffered by a worker, including pain and suffering.  See Randall’s Case, 331 Mass. 383, 386 (1954) (“if reasonably practicable, words used in one place in a statute with a plain meaning are given the same meaning when found in other parts of the same statute”).  See, e.g., G. L. c. 152, § 1 (using “compensable injury” to describe subset of injuries for which compensation may be paid); G. L. c. 152, § 29 (using word “injury” to refer to noncompensable damage — i.e., that “which does not incapacitate the employee”).  See also Crowley’s Case, 287 Mass. 367, 374 (1934) (defining “injury” in workers’ compensation statute to include “pain”).  Such a reading would lead to the conclusion that a lien on a payment for “the injury” attaches to all damages paid to the employee, including those for pain and suffering.

Such an interpretation, however, would require the word “injury” to take on two different meanings within § 15.  In the section’s opening phrase, “injury” is used narrowly to refer to “the injury for which [workers’] compensation is payable.”  G. L. c. 152, § 15.  The insurer proposes that, three sentences later, where the provision speaks of the “gross sum received in payment for the injury,” the word “injury” be read expansively to refer to all harms suffered by the worker, including those not covered by workers’ compensation.  Id.  We cannot indorse this construction, which “would require us to attribute different meanings to the same words in the same paragraph.”  Bilodeau v. Lumbermens Mut. Cas. Co., 392 Mass. 537, 543 (1984).  See 2B N.J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction §  51:2 (7th ed. 2012), quoting Commissioner of Internal Revenue v. Ridgeway’s Estate, 291 F.2d 257, 259 (3d Cir. 1961) (“the need for uniformity [in interpreting statutory language] becomes more imperative where . . . a word is used more than once in the same section”).  See also Burke v. Atlantic Research Corp., 18 Mass. App. Ct. 497, 500-501 (1984), S.C., 395 Mass. 1009 (1985) (applying this canon to G. L. c. 152, § 15).

Instead, we interpret the phrase “gross sum received in payment for the injury” in light of the rule that, “[w]hen the Legislature uses the same term in the same section . . . , the term should be given a consistent meaning throughout.”  Commonwealth v. Hilaire, 437 Mass. 809, 816 (2002).  See R.D. v. A.H., 454 Mass. 706, 714 (2009), quoting Beeler v. Downey, 387 Mass. 609, 617 (1982) (“where words are used in one part of a statute in a definite sense, they should be given the same meaning in another part of the statute”).  Here, the first sentence of § 15 uses the word “injury” in the “definite sense,” see R.D. v. A.H., supra, of “injury for which [workers’] compensation is payable.”  G. L. c. 152, § 15.  Therefore, three sentences later, when the word “injury” is used as part of the phrase “gross sum received in payment for the injury,” it “should be given the same meaning.”  See R.D. v. A.H., supra.

Construing the word “injury” consistently throughout § 15 comports with our view in Eisner v. Hertz Corp., 381 Mass. 127, 132 (1980) (Eisner), quoting G. L. c. 152, § 15, that “[f]or the insurer’s right to reimbursement to attach, the injury must be one ‘for which compensation is payable.’”  As a result, “[§] 15 does not require reimbursement for an injury not compensable under c. 152.”  Eisner, supra at 133.  Similarly, in Bruso’s Case, 295 Mass. 531, 532 (1936), we indicated that only where third-party damages “are part of the compensation benefits to which the employee is entitled under the [workers’] compensation act [is] the insurer . . . entitled to recover the amount from the proceeds of the settlement with the third person.”[9]

We find further support for this interpretation later in § 15, where the statutory language contemplates an employee’s receiving an award of damages from which an insurer has no right to recover.  That provision references “the amount, if any, to which the insurer is entitled out of [an employee’s recovery] by way of reimbursement” (emphasis added).  See G. L. c. 152, § 15.  Given that “a statute must be construed so that . . . no part will be inoperative or superfluous” (quotation and citation omitted), Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998), the “if any” language must have cognizable meaning.  Our holding makes this possible, allowing the words to account for the rare instance where an award is allocated entirely to pain and suffering, resulting in its complete exemption from the insurer’s lien.

The insurer contends that this exemption is not necessary to give effect to the words in question.  Rather, the insurer says, the “if any” language accounts for a situation of no relevance here:  one where the award is allocated entirely to damages for loss of consortium, which the statute expressly exempts from the lien.  See Hultin v. Francis Harvey & Sons, Inc., 40 Mass. App. Ct. 692, 698 (1996).  This, however, could not have been the situation contemplated by the Legislature in 1939, when the statute was amended to include the “if any” language, well before Massachusetts recognized a cause of action for loss of consortium.  See Diaz v. Eli Lilly & Co., 364 Mass. 153, 157-159 (1973) (recognizing loss of consortium claims and overruling 1909 case that disallowed such claims); St. 1939, c. 401 (adding provision regarding “amount, if any, to which the insurer is entitled”).  By contrast, at that time, Massachusetts law had long recognized claims for pain and suffering and also had made use of special verdicts, which allow explicit allocations to pain and suffering.  See Reporter’s Note to Rule 49 [1973], Mass. Ann. Laws Court Rules, Rules of Civil Procedure, at 793-794 (LexisNexis 2015-2016) (discussing rule 49′s provision for special verdict and citing to early cases); Pressey v. Wirth, 3 Allen 191, 191 (1861) (mentioning damages for pain and suffering).

The insurer also urges us to consider cases construing similar statutes, to apply the insurer’s lien to damages for pain and suffering.  See United States v. Lorenzetti, 467 U.S. 167, 174 (1984) (discussing Federal Employees’ Compensation Act); Hendry v. Industrial Comm’n, 112 Ariz. 108, 109 (1975), cert. denied, 424 U.S. 923 (1976); Dearing v. Perry, 499 N.E.2d 268, 270 (Ind. App. Ct. 1986); Perry v. Hartford Acc. & Indem. Co., 481 A.2d 133, 137-138 (Me. 1984); Tarr v. Republic Corp., 116 N.H. 99, 103-105 (1976); Bello v. Commissioner of the Dep’t of Labor & Indus., 56 N.J. 41, 44-45 (1970).  The analysis in each of those cases, however, is compelled by the particular language of the statutes at issue, which are not identical to § 15 in material respects.  In particular, unlike G. L. c. 152, § 15, none of the statutes in the cited out-of-State cases limits both the meaning of “injury” to “injury for which compensation is payable” and the insurer’s lien to “payment for the injury.”[10]  Our conclusion, no less than those in the cited cases, is compelled by the statutory text.

The view we take of the statutory language is also “consistent with the intent of the Legislature” in enacting the “workers’ compensation” scheme.  See Neff v. Commissioner of Dep’t of Indus. Accs., 421 Mass. 70, 76 (1995).  In this regard, we are mindful that, while G. L. c. 152 is meant “to protect injured workers,” see Spaniol’s Case, 466 Mass. 102, 109 (2013), § 15 has the additional aim of “reimburs[ing] the workers’ compensation insurer and . . . prevent[ing] the employee’s double recovery.”  See Lane v. Plymouth Rest. Group, 440 Mass. 469, 472 (2003), citing Rhode v. Beacon Sales Co., 416 Mass. 14, 17 (1993), Eisner, supra at 131, and Richard v. Arsenault, 349 Mass. 521, 524 (1965).  Our construction of § 15 as excluding damages for pain and suffering from the insurer’s lien neither impinges on the insurer’s right to “reimbursement” nor permits employees a double recovery.

An insurer “cannot be reimbursed for something that it did not pay” (emphasis added).  Vellucci v. Miller, 989 F. Supp. 2d 211, 215 (D.R.I. 2013) (citing Massachusetts workers’ compensation statute to support conclusion that, under similarly worded Rhode Island workers’ compensation statute, insurer cannot recover from employee’s pain and suffering award).  See G. L. c. 152, § 15 (“insurer is entitled [to lien on] settlement by way of reimbursement” [emphasis supplied]).  The insurer here did not compensate the employees for their pain and suffering, and so cannot seek “reimbursement” from damages paid for those harms.  Cf. Oliveira v. Pereira, 414 Mass. 66, 73-74 (1992) (noting, in context of different statute, that “to be reimbursed, the plaintiff must have paid the sum due”).  On the other hand, the insurer may — and, pursuant to the settlements at issue here, will — recover payments for harms that are covered by the workers’ compensation statute, such as lost wages and medical expenses.

That the employees will receive both workers’ compensation benefits and damages for pain and suffering does not constitute a proscribed “double recovery.”  See Lane v. Plymouth Rest. Group, supra at 472.  “In determining whether an employee has received double recovery, we do not focus on the dollar amounts recovered, but upon the nature of the injury asserted.”  Eisner, supra at 132.  In other words, the goal of § 15 is not to return to the insurer the full dollar amount paid to an employee, but, rather, to avoid having an employee collect both benefits and damages for the same harm.  Here, the employees recovered separately for two separate harms:  from the insurer, workers’ compensation benefits covering lost wages and medical expenses; and from the third-party defendants, damages for pain and suffering.

We also note that, like G. L. 152 as a whole, § 15 is designed to minimize tort litigation, see Estate of Moulton v. Puopolo, 467 Mass. 478, 483 (2014), and, thereby, to achieve “certainty and relative administrative convenience.”  Bongiorno v. Liberty Mut. Ins. Co., 417 Mass. 396, 402 (1994).  Our conclusion furthers this legislative goal by giving employees incentive to compromise their claims even where they receive a settlement offer that does not yield an “excess” recovery.  See G. L. c. 152, § 15 (exempting “excess” recovery from insurer’s lien).

Finally, we emphasize that this result will not deprive an insurer of its reimbursement rights where an employee and a third-party defendant reach a settlement that would “stack the deck” against the insurer by inappropriately allocating the bulk of damages to pain and suffering.  Section 15 precludes such a result by requiring that all settlements be approved by the board or reviewing board of the Department of Industrial Accidents or by a judge after a hearing at which the insurer has a right to participate.  See G. L. c. 152, § 15.  Moreover, a settlement amount allocated entirely or in large part to pain and suffering will “be eyed by the court with a healthy dose of skepticism.”  Hultin v. Francis Harvey & Sons, Inc., 40 Mass. App. Ct. 692, 699 (1996).

3.  Conclusion.  The judgment denying the appeal of the settlement in DiCarlo’s case is reversed, and the matter is remanded to the Superior Court for further proceedings consistent with this opinion.  The judgment approving the settlement in Martin’s case is affirmed.

So ordered.

Full-text Opinions

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-11900

COMMONWEALTH  vs.  ROBERT McWILLIAMS.

Middlesex.     October 8, 2015. – February 12, 2016.

Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Robbery.  Attempt.  Constitutional Law, Assistance of counsel.  Practice, Criminal, Assistance of counsel, Motion to suppress, Admissions and confessions, Discovery, Defendant’s decision not to testify, Prior conviction.  Evidence, Admissions and confessions, Prior conviction, Identification.  Identification.

Indictments found and returned in the Superior Court Department on October 25, 2011.

The cases were tried before Elizabeth M. Fahey, J., and motions for a required finding of not guilty, for a new trial, and for postconviction discovery, filed on March 13, 2014, were considered by her.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Timothy St. Lawrence for the defendant.
Crystal L. Lyons, Assistant District Attorney, for the Commonwealth.

SPINA, J.  In this case, we address the question left open in Commonwealth v. Fortunato, 466 Mass. 500, 509 (2013):  whether voluntary, unsolicited statements that are not the product of police questioning, made more than six hours after arrest, must be suppressed under the safe harbor rule established in Commonwealth v. Rosario, 422 Mass. 48, 56-57 (1996).  Robert McWilliams, the defendant, was convicted of robbery while armed and masked, occurring on July 7, 2011; and of attempted robbery, occurring on July 26, 2011.  On appeal, he argues that the judge erred by (1) denying his motion for a required finding of not guilty; (2) denying (without a hearing) his motion for a new trial, in which he asserted several claims of ineffective assistance of counsel; and (3) denying his motion for postconviction discovery.  For the following reasons we affirm the judge’s rulings.

1.  Background.  The jury could have found the following facts.  On July 7, 2011, a bank located in the Kendall Square area of Cambridge was robbed at gunpoint of $ 2,614.

Prior to the robbery, Edward Grigoryants, an employee of a business located at One Broadway, the same building as the bank, was taking a smoking break around midday in the designated smoking area located in front of the bank.  He noticed a tall African-American man wearing a “doo rag” on his head, leaning against a column near the smoking section.  The man had broad shoulders and short hair and was carrying a small black pouch.  Grigoryants identified this man as the defendant in court.  After two to three minutes, Grigoryants went back inside.

At 1:23 P.M., the bank’s surveillance cameras show the defendant entering the bank.  At the time, a customer, Marie Saint-Surin, the bank’s assistant manager, and Kaltoum El Hafidi, a teller, were in the bank.  The defendant was masked at the time, but El Hafidi still could see his eyes and part of his mouth and nose.  The defendant approached the teller window.  He pointed a “big black gun” at El Hafidi and said that he was sorry to scare her and that he was not going to hurt her, and demanded she give him the money.  El Hafidi complied.  Once the defendant received the money, he left the bank through the automated teller machine (ATM) room and removed his mask.  Before the defendant left the bank, El Hafidi was able to observe that the defendant had a shaved head.  The bank’s surveillance camera showed the defendant leaving at 1:24 P.M.  When he left the bank, the defendant turned right, heading in the direction of Third Street.  A parking garage is located around the corner from Third Street, which is less than a one-minute walk from the bank.  The garage also is accessible through One Broadway.  Once the defendant left, Saint-Surin notified the police, who arrived within approximately five minutes.  El Hafidi described the defendant as a tall, African-American man who was “not too fat but a little skinny.”  He was wearing “sports clothes” including a “beige white” long-sleeve T-shirt.  He was carrying a “big black gun” and a black bag.  The customer also described the defendant as a tall man wearing a long-sleeve shirt and nylon wind pants carrying a black or navy bag.  Saint-Surin described the defendant as an African-American man wearing a white top and pants with a white stripe on both sides.

On July 26, 2011, Grigoryants was taking another smoking break in the same area around midday.  While he was smoking, Grigoryants recognized a man walking by him as the man who robbed the bank on July 7.  The individual had the same body build, broad shoulders, and height; however, his hairstyle was different.  He had dreadlocks as opposed to the short hair observed on July 7, and the dreadlocks appeared to be a wig.  The defendant was carrying a small black pouch that was similar to the one the robber carried on July 7.  Grigoryants followed the man a short distance and used his cellular telephone to take a photograph of the man’s back.

Grigoryants went into the bank and showed the photograph to Michelle Garris, the teller-manager.  He asked whether she recognized the individual in the photograph.  Grigoryants told Garris that he believed that the man was the person who had robbed the bank on July 7.  Because Garris had not been working on the day of the robbery, she showed the photograph to El Hafidi.  Grigoryants asked El Hafidi if the man in the photograph was the same man who robbed the bank on July 7.  At first, El Hafidi was unsure the photograph depicted the same man because the man in the photograph had hair and a beard and was wearing sunglasses.  Grigoryants told El Hafidi and Garris that the individual in the photograph was currently outside the bank.  They were in the lunch room and from there they were able to see outside the bank.  At that time, El Hafidi saw the man walk by the front of the bank.  She entered the main part of the branch to get a better view.  The defendant was then sitting at a table about twenty-five feet away from the bank, facing the bank.  El Hafidi recognized him because of his race, his build, his gait, and how he was dressed.  Once she recognized the defendant, she said, “Oh my god, it’s him.”  She called to Saint-Surin and told her that someone had seen the person who had robbed them outside the bank.  Saint-Surin looked out the window but became frightened and only looked at him sidewise.  She was afraid to look at his face.  She knew it was the same person from July 7 because he was wearing the same type of outfit and had the same gait.  Garris telephoned the Cambridge police.

The police were given a description of the individual and told how he was believed to have committed a bank robbery earlier that month.  On receiving a dispatch, Officers Eric Derman and Marlin Rivera proceeded to the scene, arriving within three minutes of Garris’s telephone call to the police.  Once they arrived, they observed the defendant and determined that he fit the description they had been given.  Officer Derman approached the defendant from the front while Officer Rivera approached him from behind.  He observed the defendant holding a black nylon “draw-string type” bag and saw an outline of what appeared to be a handle of a gun.  After the defendant was handcuffed, Derman determined that the defendant’s dreadlocks were a wig.  The black bag that the defendant was holding contained a plastic handgun and a beard and mustache “disguise.”  At the time of his arrest, the defendant was wearing a white or light gray long-sleeve T-shirt, running pants with a white stripe down the side, and sunglasses.  The gun was later determined to be a pellet gun.  Detective Jack Crowley arrived on the scene after the defendant was handcuffed.  Detective Crowley observed the defendant to be about six feet, two inches tall.  He spoke with El Hafidi and asked her whether the person she saw outside the bank was the person who had robbed the bank on July 7.  She said that she was “positively certain” that it was the person who had robbed her.

At the police station, Crowley conducted an interview with the defendant.  The defendant claimed that he had been sitting outside the bank that day to get some fresh air.  Sometime later, after the interview ended, the defendant asked the booking officer if he could talk to Crowley because he needed a favor.  The defendant asked Crowley to get his backpack that was locked to his bicycle.  He said his eyeglasses were in the backpack, and he needed them to see.  He told Crowley that the bicycle was at the entrance of a parking garage located in the same building as the bank, and that the key was with his other belongings in the police station.  When Crowley went to retrieve the eyeglasses, he noticed that the garage had a surveillance camera.  He made arrangements with the garage’s property management company to obtain a copy of the surveillance video recording from July 7.  The recording showed the defendant leaving the garage on July 7, two to three minutes after the bank robbery.

2.  Motion for a required finding of not guilty — attempted robbery.  The defendant argues that the Commonwealth presented insufficient evidence to show an overt act that was near enough to completing the robbery to be punishable as an attempt and, therefore, his motion for a required finding of not guilty should have been allowed.  We disagree.

When reviewing a motion for a required finding of not guilty, we view the evidence in the light most favorable to the Commonwealth.  Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).  We must consider whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  Id. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

This court has interpreted the law of attempt for over one hundred years; however, the case law interpreting the language of G. L. c. 274, § 6, the general attempt statute, is not extensive.  The statute requires “a showing that the defendant, after preparing to commit the crime, has undertaken overt acts [with specific intent] toward fulfilling the crime that ‘come near enough to the accomplishment of the substantive offence to be punishable.’”  Commonwealth v. Bell, 455 Mass. 408, 412 (2009), quoting Commonwealth v. Peaslee, 177 Mass. 267, 271 (1901).  In order for a defendant to be guilty of attempt, the distance between his or her actions and the completed crime must be “relatively short” and “narrow.”  Bell, supra at 415, quoting Commonwealth v. Hamel, 52 Mass. App. Ct. 250, 258 (2001).

There are two categories of attempt.  Bell, 455 Mass. at 412-413, quoting Peaslee, 177 Mass. at 271-272.  The first and most obvious form of attempt occurs when a person performs the last act required to complete a crime, but for some unanticipated reason, his or her efforts are thwarted, whether by bad aim or a mistake in judgment.  Bell, supra at 412-413, quoting Peaslee, supra at 271.  The second, and more complicated category, occurs when a person is still in preparatory mode and has not committed the last act necessary to achieve the crime.  Bell, supra at 413, quoting Peaslee, supra at 271-272.  “That an overt act although coupled with an intent to commit the crime commonly is not punishable if further acts are contemplated as needful, is expressed in the familiar rule that preparation is not an attempt.”  Peaslee, supra at 272.  However, certain preparations may be enough to support a conviction of attempt.  “It is a question of degree.  If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a [crime] although there is still a locus penitentiae^[[1]] in the need of a further exertion of the will to complete the crime. . . .  [T]he degree of proximity . . . may vary with circumstances . . . .”  Id.  Certain factors must be considered when determining whether acts constitute mere preparations or are enough to establish the crime of attempt.  Bell, supra at 414.  These factors include the gravity of the crime, the uncertainty of the result, and the seriousness of harm that is likely to result.  Bell, supra at 414, citing Commonwealth v. Kennedy, 170 Mass. 18, 22 (1897).

In this case, we are dealing with the second category of attempt.  Here, the defendant was still at the preparatory stage and had not yet performed the last act necessary to commit the crime of armed robbery.  The defendant argues that he still had much to do before an armed robbery could be completed and that, although the evidence indicated he was prepared to rob the bank, it did not rise to the level of an overt act that puts him near the commission of a crime.  We conclude that the evidence was sufficient to convict the defendant of attempted robbery.

The defendant was seen sitting twenty-five feet away from the bank he had robbed three weeks earlier.  He was close enough to the bank that Saint-Surin and El Hafidi were able to identify him as the man who had robbed the bank on July 7.  Seated just outside the bank, the defendant had the then-present ability to walk into the bank and rob it.  His intention to rob the bank was supported by strong evidence.  He was wearing the same clothing as he did on July 7, a long-sleeve white or light-colored shirt and running pants, during the midday hours in the scorching July heat.  He had disguised himself by donning a wig.  The black bag the defendant was holding, a bag that was similar to the one used in the robbery three weeks prior, contained a mustache and beard as well as a pellet gun.  He was in close proximity to the bank and it could be inferred from these facts that he had the present intent to commit an armed robbery.  The only actions left for the defendant to do before actually robbing the bank were to put on the beard and mustache, walk into the bank and up to the counter and demand money.  The evidence supports findings that the defendant had the present intention to rob the same bank he had robbed earlier that month, that he made preparations to do so, and that he had taken steps which put him in close proximity to completing the substantive crime.  He had undertaken overt acts which, although not the final act in a necessary sequence, were so close to the commission of the crime that a reasonable jury could conclude that it was virtually certain that he would have robbed the bank a second time had Grigoryants not recognized him and alerted bank personnel who then summoned police.  See Peaslee, 177 Mass. at 271-272.

Reference to the factors articulated in Kennedy, 170 Mass. at 22, supports our decision.  The first factor, seriousness of the crime, is readily satisfied.  Armed robbery is a felony punishable up to life in prison.  The second factor, uncertainty as to whether the defendant was going to complete the crime, was low.  The defendant had in his possession all the necessary materials to rob the bank, he had robbed the same bank three weeks before, and when he was apprehended he was sitting in front of the bank in the same area where he had been standing immediately prior to the robbery on July 7.  The third factor, the seriousness of the harm that would have been done had the defendant completed the crime, was substantial.  The defendant was armed with a pellet gun that could cause serious injury to a person if fired.  The trial judge’s decision to deny the motion for a required finding of not guilty was correct.

3.  Ineffective assistance of counsel — motion to suppress statements.  The defendant argues that the judge erred in denying his motion for a new trial, which alleged that trial counsel had been ineffective for failing to file a motion to suppress statements the defendant made to police more than six hours after his arrest, in violation of the safe harbor rule established in Rosario, 422 Mass. at 56-57.  Further, the defendant argues that the bicycle and the surveillance video recording from the garage were fruits of those statements, and trial counsel should have moved to suppress them as well.  It is undisputed that the defendant’s statements were made more than six hours after his arrest and that they had been volunteered.  We turn to the question left open in Fortunato, 466 Mass. at 509:  whether volunteered, unsolicited statements made six hours after arrest and before presentment require suppression.  We conclude that they do not.

To show that counsel was ineffective, a defendant must first show that “there has been serious incompetency, inefficiency, or inattention of counsel” and behavior that falls “measurably below that which might be expected from an ordinary fallible lawyer.”  Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).  If the defendant is successful in proving the first prong, he then must show that counsel’s omission “has likely deprived the defendant of an otherwise available, substantial ground of defence.”  Id.

Rule 7 (a) (1) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1506 (2004), requires the prompt presentment of an arrestee before a court.[2]  The purpose of the rule is to discourage unlawful detentions, unlawfully obtained statements, and improper police pressure.  Commonwealth v. Powell, 468 Mass. 272, 276-277 (2014).  The rule essentially codified the existing case law.  Rosario, supra at 51.  Our case law requires that an arrestee be brought before a judge as soon as reasonably possible.  Commonwealth v. Hodgkins, 401 Mass. 871, 876 (1988), and cases cited.  Before Rosario, the unreasonableness of a delay was determined on a case-by-case basis in light of all the circumstances.  Powell, supra at 277.  Commonwealth v. Perito, 417 Mass. 674, 680 (1994), and cases cited.  This case-by-case approach continued, without suppression of any evidence by reason of undue delay in presentment, until Rosario.  Powell, supra at 278, citing Rosario, 422 Mass. at 52.

In Rosario, this court announced a bright line rule stating, “[a]n otherwise admissible statement is not to be excluded on the ground of unreasonable delay in arraignment, if the statement is made within six hours of the arrest (day or night), or if (at any time) the defendant made an informed and voluntary written or recorded waiver of his right to be arraigned without unreasonable delay.”  Rosario, 422 Mass. at 56.  Exceptions may apply in the rare case of a natural disaster or emergency.  Powell, 468 Mass. at 276.  Rosario, supra at 56-57.  The six-hour rule has several goals.  First, it serves to provide clarity and consistency to police officers, judges, prosecutors, and defense counsel as to the “right of the police to question” an arrestee as well as the “standard for suppressing statements” made due to an unreasonable delay before arraignment.  See Commonwealth v. Morganti, 455 Mass. 388, 399 (2009), S.C., 467 Mass. 96, cert. denied, 135 S. Ct. 356 (2014), quoting Rosario, supra at 53.  Second, the rule is “intended to facilitate a criminal defendant’s right to counsel, to ensure that a defendant receives a prompt statement by a judge or magistrate of the charges against him, and to prevent unlawful detention.”  Fortunato, 466 Mass. at 506.  Third, it is a “prophylaxis against dilatory police conduct,” seeking to prevent unlawful detentions and improper police pressure.  Commonwealth v. Siny Van Tran, 460 Mass. 535, 561 (2011).  See Powell, supra at 279 (“A bright-line rule . . . achieves the goal of limiting the coercive effect of lengthy arraignment delays”); Commonwealth v. Santana, 465 Mass. 270, 287 (2013).  ”[T]he principal mischief that the Rosario rule was adopted to prevent [was] the coercive influence of intentional delays of arraignment to prolong custodial interrogation of unwilling and uncounseled arrestees.”  Siny Van Tran, supra at 563.

Unlike in Rosario and Fortunato, the defendant’s statements in this case were not in response to police questioning.  Unlike in Fortunato, the defendant and Detective Crowley did not have a conversation about the robbery after the safe harbor period expired.  See Fortunato, 466 Mass. at 502-503.  The conversation here consisted solely of the defendant’s volunteered, unsolicited request of Crowley that Crowley retrieve his eyeglasses.  The fact that Crowley followed the defendant’s directions to locate his bicycle and, in the process, noticed that there were security cameras at the garage was not a product of questioning about any crime.  “[T]he mere passage of six hours,” absent any direct or indirect efforts by the police to prompt the defendant to speak about the robbery or engage him in conversation likely to lead to the subject of the robbery, does not violate the safe harbor rule.  See Commonwealth v. Perez, 577 Pa. 360, 372 (2004).  Furthermore, in one of the rare instances where this court found an exception to the Rosario six-hour rule, we determined that Rosario did not apply to defendants arrested outside of Massachusetts because the “spirit” of Rosario was not violated.  Morganti, 455 Mass. at 399-400 (interrogating officer flew from Massachusetts to California).  The “spirit” of Rosario is to prevent police officers desirous of obtaining a confession from purposefully delaying a defendant’s arraignment.  Morganti, supra.  As in Morganti, the spirit of Rosario was not violated in this case.  Crowley did not engage in conduct that could be characterized as a subterfuge intended to thwart the spirit of Rosario.

The goal of Rosario‘s safe harbor rule will not be furthered by automatic suppression of volunteered, unsolicited statements made by this defendant after the expiration of the six-hour safe harbor rule.  The exclusionary rule was created to give protection to arrestees from the potentially coercive environment resulting from police questioning.  See Commonwealth v. Duncan, 514 Pa. 395, 404 (1987), overruled by Perez, supra at 367-368, 372.  Here, there was no police misconduct that offended a policy the exclusionary rule was meant to safeguard.  Instead, suppression would only hinder legitimate information gathering.  We conclude that a motion to suppress the statements and the fruits thereof would not have succeeded and, therefore, trial counsel was not ineffective.  Commonwealth v. Comita, 441 Mass. 86, 91 (2004).

4.  Motion for postconviction discovery.  The defendant argues that his request for all records relating to his booking and detention at the Cambridge police department would likely uncover evidence that would warrant granting him a new trial, and that therefore it was error to deny his motion for postconviction discovery.  We disagree.  “Where affidavits filed by the moving party . . . establish a prima facie case for relief, the judge . . . may authorize such discovery as is deemed appropriate.”  Mass. R. Crim. P. 30 (c) (4), as appearing in 435 Mass. 1501 (2001).  Because we have determined that volunteered, unsolicited statements made after the Rosario six-hour rule has expired are admissible, the defendant has not established a prima facie case for relief.

5.  Ineffective assistance of counsel — identification.  The defendant argues that the judge erred in denying his motion for a new trial, which alleged that counsel was ineffective for failing to file a motion to suppress the identification evidence.[3]  He contends that El Hafidi’s pretrial identifications were made in circumstances “especially suggestive,” Commonwealth v. Jones, 423 Mass. 99, 109 (1996), “so as to give rise to a very substantial likelihood of a mistaken identification.”  Commonwealth v. Moon, 380 Mass. 751, 758 (1980).  He also argues that her in-court identification was tainted by her suggestive pretrial identifications.

The defendant argues that El Hafidi’s pretrial identifications, which did not involve the police, should be suppressed under common-law principles of fairness articulated in Jones, supra at 108-109.  Jones explains that “[c]ommon law principles of fairness dictate that an unreliable identification arising from the especially suggestive circumstances [that did not involve State action] should not be admitted.”  Id. at 109.  The court did not define the term “especially suggestive.”  We recently have said that, where a judge finds an identification to be especially suggestive, a judge must “weigh[] the probative value of the identification against the danger of unfair prejudice, and determin[e] whether the latter substantially outweighs the former.”  Commonwealth v. Johnson, 473 Mass.     (2016).  The “ultimate measure,” id. at    , in the analysis always will be “reliability.”  Id. at    .  We also said that the especially suggestive standard “need not be set so high” as the unnecessarily suggestive standard applicable to out-of-court identification procedures conducted by the police because an unnecessarily suggestive identification procedure requires suppression, whereas one that is especially suggestive “simply triggers a reliability analysis.”  Id. at    .

To trigger a reliability analysis, “the circumstances surrounding the identification need only be so suggestive that there is a substantial risk that they influenced the witness’s identification of the defendant, inflated his or her level of certainty in the identification, or altered his or her memory of the circumstances of the operative event.  Where the independent source of an identification is slim, this level of suggestiveness may be sufficient to support a finding of inadmissibility; where the independent source is substantial, a greater level of suggestiveness would be needed to support a finding that the danger of unfair prejudice substantially outweighs the probative value of the identification.”  Id. at    .

The defendant first contends that El Hafidi’s identification of the defendant from the cellular telephone photograph was highly suggestive because Grigoryants asked her whether the photograph depicted the robber.[4]  There is no evidence that Grigoryants did anything to pressure El Hafidi to confirm his suspicion.  Witnesses often are shown an individual at a showup who matches a description of a suspect.  Commonwealth v. Watson, 455 Mass. 246, 252-253 (2009), quoting Commonwealth v. Phillips, 452 Mass. 617, 628 (2008).  Showups are disfavored because they are “inherently suggestive.”  However, it is only when showups conducted by the police are “unnecessarily suggestive” that the resulting identification must be suppressed.  Phillips, supra at 627, quoting Commonwealth v. Martin, 447 Mass. 274, 279 (2006).  El Hafidi’s identification of the photograph was made in circumstances comparable to a permissible showup conducted by a police officer.  Had the showup been conducted by a police officer, it would not have been deemed unnecessarily suggestive.  If the identification procedure was not “unnecessarily suggestive,” see Johnson, 473 Mass. at    , had it been conducted by the police, it could not have been “especially suggestive” because it was conducted by a third party, as here.  See id. at    .  Moreover, there was “good reason” to do it in the circumstances.  See Martin, supra at 282-283.  It was important to ascertain whether the defendant was the robber from July 7 while he was just outside the bank, so the police could be summoned if he were.

The record also supports a finding that El Hafidi relied solely on her experience from July 7, when she was only a few feet from the individual who robbed her, to identify the defendant.  When Grigoryants showed her the photograph, which depicted the defendant from behind, she expressed doubt that he was the July 7 robber because the man depicted in the photograph had a hairstyle different from the July 7 robber.  She did not identify the defendant as the man in the photograph at that time.  Whatever suggestiveness Grigoryants may have imparted was not so high that the danger of unfair prejudice outweighed the probative value of her identification, where that identification was substantially grounded in El Hafidi’s experience with the robber on July 7.  It was not until she saw the defendant walking and ultimately sitting outside the bank, and drawing upon the observations of his gait, build, and race, which she had made during the July 7 robbery, that she was sure that he was the same man who robbed her on July 7.

Additionally, the defendant does not argue that El Hafidi’s description of him or the robber has changed over time, or that she previously had failed to identify the defendant — factors we have said may be relevant when determining whether an identification is reliable in the totality of the circumstances.  See Johnson, 473 Mass. at    .  El Hafidi consistently had described the defendant as the robber and even questioned the photograph that Grigoryants showed her because she remembered the robber as having had shorter hair than the man in the photograph.  There is no reason to consider El Hafidi’s identifications to be unreliable so as to warrant suppression under Jones.

The defendant next contends that El Hafidi’s identification of the defendant outside the bank was especially suggestive because the defendant was not under restraint and El Hafidi was in a predicament of either identifying the defendant as the robber or risking being robbed again.  Further, the defendant argues that this identification was especially suggestive because it occurred at the same place and same time of day, while he was wearing similar clothing.  The defendant’s argument has no merit.  The defendant controlled the circumstances in which he was identified.  It was not scripted or orchestrated by anyone other than the defendant.  Although he was exhibiting the same modus operandi as did the robber on July 7, this does not make the circumstances especially suggestive.  The defendant was sitting, facing the bank and staring directly into it.  El Hafidi, drawing from her experience on July 7, identified the defendant not only based on his clothing but also by his gait, build, and race — features that she had ample time to observe on July 7.  The identification was reliable.

There is no merit to the defendant’s claim that El Hafidi’s viewing the police draw their weapons on the defendant reinforced her previous suggestive identifications.  More compelling facts were presented in Commonwealth v. Walker, 421 Mass. 90 (1995).  In that case the witness was working at a donut shop where she was robbed.  Id. at 92.  She telephoned the police and gave a description of the man who had robbed her.  Id. at 92-93.  About two weeks later, the same witness was working at another branch of the donut shop and a coworker called from the front of the store asking her to look at a customer.  Id. at 93.  When the witness did so, she saw the individual who she believed had robbed her two weeks before.  Id.  She telephoned the police, and when they arrived, she described the customer, who had left the store.  Id.  The police apprehended the defendant at a nearby subway station and brought him to the donut shop where the witness was working.  Id.  He was positioned outside the shop, in handcuffs, next to a police officer and a police vehicle.  Id.  The witness identified him as the robber.  Id.  The court held that the identification was not unnecessarily suggestive.  Id. at 94-95.  In the present case, the police did not bring the defendant to El Hafidi.  She was inside the bank while the defendant was being arrested, and when the police asked her if it was the same individual, she said yes.  This identification was not unnecessarily suggestive.  She had already identified the defendant based on her experience of being robbed three weeks earlier and merely repeated her identification to the police.

Finally, the defendant argues that El Hafidi’s in-court identification was tainted by inadmissible out-of-court identifications.  As we have concluded above, her out-of-court identifications were reliable.  Her identification to the police in response to their question whether the defendant was the person who had robbed her on July 7 was not made under conditions that were unnecessarily suggestive.  It follows that her in-court identifications were not tainted.  See Commonwealth v. Collins, 470 Mass. 255, 262 (2014).  Because a motion to suppress likely would not have been successful, the defendant has failed to show that counsel was ineffective in the constitutional sense.[5]  Comita, 441 Mass. at 91.

Finally, the defendant has not shown that even if El Hafidi’s identifications should have been suppressed, there was a reasonable possibility that the verdict would have been different.  See Commonwealth v. Pena, 31 Mass. App. Ct. 201, 205 (1991).  There was other powerful evidence from which the jury could have convicted the defendant, including videotapes and photographs from the bank’s surveillance camera and the parking garage camera from July 7, which depicted the robbery and the defendant, as well as the photograph that Grigoryants took with his cellular telephone.  There was testimony from witnesses to the July 7 robbery who gave similar descriptions of the robber.  There was evidence of the similarities in the defendant’s actions, dress, transportation, and items on his person on both July 7 and July 26.

6.  Ineffective assistance of counsel — right to testify.  The defendant argues that the judge erred in denying his motion for a new trial because his trial counsel erroneously advised him that if he testified at trial, five prior convictions, including of two larcenies involving motor vehicles, two charges of knowingly receiving a stolen motor vehicle, and one charge of unlawful possession of a firearm, could be used to impeach him.  The defendant argues that he chose not to testify because of trial counsel’s incorrect advice, and therefore his waiver of his right to testify was invalid.  The Commonwealth argues that the record contradicts the defendant’s assertions.  We agree with the Commonwealth.

In anticipation of the Commonwealth’s resting the next day, the trial judge addressed the defendant’s motion in limine to exclude evidence of the defendant’s prior convictions.  The judge was inclined to admit the evidence because she believed that the five prior convictions at issue were not time-barred under G. L. c. 233, § 21.  Defense counsel agreed with the trial judge.  The judge provisionally determined the prior convictions were not time-barred but asked both attorneys to do more research and stated that they would take up the issue the next day.  The next day, when the judge addressed the issue again, the Commonwealth told the judge that it may be a “moot point” and deferred to defense counsel.  Defense counsel agreed, explaining that he spoke with his client the night before and that he did not expect his client to testify.

We begin by stating that the five prior convictions pertinent to this case were all time-barred under G. L. c. 233, § 21.  Because trial counsel agreed with the trial judge in her misinterpretation of G. L. c. 233, § 21, the defendant argues that he received ineffective assistance of counsel because he relied on the misinterpretation in deciding whether to testify.  Although counsel misinterpreted G. L. c. 233, § 21, the defendant has failed to prove by a preponderance of the evidence “that, but for his counsel’s erroneous advice concerning the admissibility of his [prior convictions], he would have testified in his own defense.”  Commonwealth v. Freeman, 29 Mass. App. Ct. 635, 642 (1990).

“The right to testify on one’s own behalf . . . is fundamental.”  Commonwealth v. Smith, 459 Mass. 538, 550 (2011), quoting Commonwealth v. Degro, 432 Mass. 319, 335 (2000).  In his motion for a new trial, the defendant submitted an affidavit explaining that on the evening after the motion in limine was discussed, trial counsel visited the defendant and told him that if he testified, he could be impeached with his prior convictions.  The defendant claims that if the prior convictions were not introduced he would have testified at trial.  If he had testified, the defendant would have testified that he did not rob the bank on July 7, 2011, and explained why the person on the surveillance tapes was not him, and that he did plan to rob the bank on July 26, 2011, but “lost [his] nerve.”  Trial counsel did not file an affidavit.  ”It is not enough to say that counsel had discouraged him from testifying.”  Commonwealth v. Lucien, 440 Mass. 658, 671 (2004).  “[A] motion judge may reject a defendant’s self-serving affidavit as not credible.”  Commonwealth v. Colon, 439 Mass. 519, 530 (2003), citing Commonwealth v. Grant, 426 Mass. 667, 673 (1998), S.C., 440 Mass. 1001 (2003).  See Commonwealth v. Smith, 456 Mass. 476, 481 (2010).

Based on the record, the defendant’s credibility is called into question.  Before the motion in limine was discussed, defense counsel told the judge that the defendant was most likely not going to testify.  This decision was made before the provisional ruling to admit the prior convictions for impeachment.  When the issue was revisited the next morning, defense counsel explained that the discussion was moot because the defendant would not be testifying.  The record suggests that in deciding not to testify the defendant did not rely on trial counsel’s advice regarding prior convictions.  Furthermore, it is highly unlikely that the defendant would have testified because doing so would have sacrificed his defense to the July 7 robbery in an effort to obtain a not guilty verdict on the July 26 attempted robbery charge.  The defendant’s affidavit said he would have testified that he was planning to rob the bank on July 26 but lost his nerve.  If he had testified to this, it would have damaged his case theory because admitting to the fact that he intended to rob the bank on July 26 would have lead the jury to believe that he was predisposed to robbing a bank.  This would have undermined his mistaken identity defense to the July 7 robbery.  We conclude that the defendant has failed to show that his decision not to testify was based on incorrect advice from counsel.

The defendant further argues that the judge erred in denying the defendant’s motion for a new trial without an evidentiary hearing.  We disagree.  “The decision whether to hold an evidentiary hearing is committed to the discretion of the motion judge, and we review that decision for an abuse of discretion.”  Commonwealth v. Denis, 442 Mass. 617, 628 (2004).  See Commonwealth v. Stewart, 383 Mass. 253, 257 (1981).  If no “substantial issue” is raised by the motion or the affidavits submitted, the judge has the discretion to decide postconviction motions without an evidentiary hearing.  See Denis, supra, quoting Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001).  When considering whether a motion for a new trial warrants an evidentiary hearing, the judge must look to the “seriousness of the issue itself and the adequacy of the defendant’s showing on that issue must be considered.”  Denis, supra.  See Stewart, supra at 257-258.  In this case, the defendant filed a motion for a new trial and submitted an affidavit written by the defendant, police reports, a motion to change counsel, and a motion in limine to exclude evidence of the defendant’s prior convictions.  The motion and supporting materials do not need to prove the issues raised; however, “they must at least contain sufficient credible information to cast doubt on the issue.”  Denis, supra at 629.  The record does not contain facts that would require an evidentiary hearing by the judge.  Where the motion judge was also the trial judge she “may use [her] ‘knowledge and evaluation of the evidence at trial in determining whether to decide the motion for a new trial without an evidentiary hearing.’”  Commonwealth v. Riley, 467 Mass. 799, 826 (2014), quoting Commonwealth v. Wallis, 440 Mass. 589, 596 (2003).  The motion judge properly determined that an evidentiary hearing was not warranted.

7.  Conclusion.  For the foregoing reasons, we affirm the defendant’s convictions of armed robbery and attempted robbery and the orders denying his motions for a required finding of not guilty, for a new trial, and for postconviction discovery.

So ordered.

Full-text Opinions