NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1238                                       Appeals Court

COMMONWEALTH  vs.  DOUGLAS GARCIA.

     No. 14-P-1238.

Essex.     September 11, 2015. – February 16, 2016.

Present:  Vuono, Agnes, & Maldonado, JJ.

Rape.  Evidence, Conversation between husband and wife, First complaint.

Indictment found and returned in the Superior Court Department on August 4, 2010.

The case was tried before Richard E. Welch, III, J.

Michelle Menken for the defendant.

Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.
 

VUONO, J.  This appeal raises the issue whether the spousal disqualification set forth in G. L. c. 233, § 20, First, which bars a spouse from testifying “as to private conversations with the other,” applies when one spouse has disclosed the substance of a private conversation to a third party.

The defendant was convicted by a jury of rape, G. L. c. 265, § 22 (b).  The victim, whom we shall call Sally,[1] is the defendant’s stepdaughter.  Sally was nineteen years old at the time of the offense, which occurred at the defendant’s home, where Sally was spending the night.  Among several challenges to his conviction, the defendant claims that the judge erred by permitting the Commonwealth to introduce testimony about a conversation between himself and his wife, who also is Sally’s mother, in which he allegedly apologized to the mother and explained that he had been tired and, as a result, had confused Sally for the mother on the night of the incident.  For the reasons that follow, we conclude that, even though the evidence of the conversation was admitted for the limited purpose of impeaching the mother’s credibility, the defendant is entitled to a new trial.

Background.  a.  The Commonwealth’s case-in-chief.  The jury could have found the following facts.  On April 18, 2010, Sally was living with her boy friend in North Andover.  The couple were arguing.  Upon the advice of her mother, who was on vacation in Florida, Sally drove to her mother’s home in Lynn.[2]  The house is a duplex; Sally’s family lived on the top floor and Sally’s aunt lived on the first floor.  Sally arrived at about 11:00 P.M. and let herself into the house.  She had a brief conversation with the defendant, who was in bed in his bedroom watching television.

Sally was wearing a shirt and capri-style pants.  She did not change before getting into bed in the spare room as she had brought only her work clothes for the next day.  Sally also brought her cat, and testified that she had closed the bedroom door so that the cat would not escape from the room.  At around 2:00 A.M., Sally was awakened by “[t]he feeling of someone’s hand inside [her] vagina.”  At first, before she was fully awake, Sally thought she was with her boy friend.  However, when she opened her eyes, she realized that she was not in her apartment and found the defendant, naked, lying next to her.  He stood up and wrapped a towel around his torso.  Sally asked him what he was doing, to which he responded:  ”I’m so sorry, . . . it’s all my fault.”  He left the room, and Sally then realized that her pants and underwear had been pulled down to her ankles.  She quickly dressed, gathered her belongings, and drove back to her apartment.  After showering, Sally slept on the couch for a few hours until her boy friend woke her, after which she went to work at 6:00 A.M.

Around mid-morning, Sally spoke to her aunt on the telephone and told her what had happened.  Distraught, Sally left work and returned to Lynn where she spoke further with her aunt in the first-floor apartment of the duplex.  Soon thereafter, the police were contacted and the defendant was arrested.

b.  The defendant’s case.  The defendant denied the allegation and mounted a vigorous defense, which focused on Sally’s alleged bias.  Through cross-examination, his own testimony, and the testimony of other witnesses, including the mother, the defendant attempted to show that Sally was lying because of her hostility toward him.[3]  To that end, the defendant filed a motion in limine seeking to question Sally about a conversation she had with her mother in which Sally had stated that she was pregnant and that the defendant was responsible even though no penile penetration had occurred.  The essence of defense counsel’s argument was that Sally’s “absurd” allegation demonstrated her willingness to fabricate.

The judge held a hearing on the defendant’s motion just before opening arguments at which the prosecutor conceded that Sally had told her mother that she could be pregnant, but had explained that the comment was a sarcastic response made in anger after Sally’s mother urged her to drop the case because it would be difficult not only for Sally but for her younger sister.  In addition, the prosecutor informed the judge that, during that same conversation, the mother said that the defendant had apologized to her for the incident and had explained that he had been tired and had mistaken Sally for the mother.  The prosecutor then expressed her intent to introduce the mother’s statement about the defendant’s alleged admission if the judge were to permit the line of questioning proposed by the defendant.  She argued that this testimony was probative of Sally’s state of mind and explained the context in which Sally said she could be pregnant.[4]  In response to this argument, trial counsel stated that the mother denied saying to Sally that her husband had apologized.

At the conclusion of the hearing, the judge allowed the motion in limine.[5]  As it turned out, however, when defense counsel asked Sally whether she had told her mother that she was pregnant, Sally denied it.  The defendant then called the mother to the stand for the purpose of impeaching Sally’s credibility.  The mother testified that Sally had, indeed, claimed to be pregnant as a result of the defendant’s conduct.[6]

c.  The defendant’s alleged admission to the mother.

Before commencing her cross-examination of the mother, the prosecutor sought a sidebar conference to inquire whether she could ask the mother if she told Sally that the defendant admitted culpability and claimed to have made a mistake.  The judge permitted the cross-examination, stating that the rule of disqualification does not apply once a spouse has disclosed the contents of a private conversation to a third party.[7]  Trial counsel’s objection “for the record” was overruled.  However, the prosecutor did not understand the judge’s ruling and did not ask the question for which she had obtained permission, and as a result, after the defense rested, the prosecutor requested and obtained permission to recall the mother as a rebuttal witness.  The sole purpose for recalling the mother was to ask her whether she had disclosed the defendant’s apology for the incident to Sally.  The defendant did not object to this procedure, and the judge permitted the prosecutor to recall the mother.

The mother then took the stand for a second time, and after a few preliminary questions, the prosecutor asked the mother if she had told Sally that the defendant had said that he was sorry and that he had been tired and confused.  The mother denied that she had told Sally anything of that nature.[8]  The prosecutor then recalled Sally to impeach the mother’s credibility.  Sally testified, over the defendant’s objection, as follows:  ”[My mother] told me that [the defendant] told her he’s sorry that he did it and he was so overtired he thought it was her.”  The testimony was preceded by a limiting instruction in which the judge said:  ”[T]his is only admissible on whether or not you believe [the mother], and that’s the sole purpose of this upcoming testimony.”[9]

Discussion.  a.  Waiver of marital privilege.  As we have previously noted, the mother was first called to the stand by the defendant.  Before she was asked any questions, the judge conducted a brief voir dire during which the mother confirmed that she and the defendant were married.  The judge then informed her that she held a “spousal privilege” and was not required to testify as to conversations with her spouse, the defendant.  When asked if she wanted to invoke her privilege, the mother responded affirmatively.  Defense counsel then explained that the mother would testify only about her conversation with Sally, specifically whether Sally had told her that she could be pregnant.  Without explicitly ruling that the mother had waived her marital privilege, the judge concluded that the mother could testify about Sally’s comment.

As an initial matter, we observe that the record fails to establish whether the mother’s decision to waive her privilege not to testify at her husband’s trial was voluntary.  The second clause of G. L. c. 233, § 20, as amended by St. 1983, c. 145, provides in relevant part that “neither husband nor wife shall be compelled to testify in the trial of an indictment, complaint[,] or other criminal proceeding against the other.”  See Mass. G. Evid. § 504(a) (2015).  Because the marital privilege belongs to the witness spouse alone, the defendant lacks standing to challenge the decision of his or her spouse to take the stand.  See Commonwealth v. Stokes, 374 Mass. 583, 595 (1978).  See also Commonwealth v. Paszko, 391 Mass. 164, 190 (1984) (“[A] defendant has no standing to contest an alleged infringement of a privilege he could not have exercised”).  However, our cases hold that where a spouse’s testimony is obtained in the absence of a valid waiver of the privilege, use of that testimony at trial “offends fundamental fairness.”  See Commonwealth v. Rosa, 412 Mass. 147, 162 (1992).

The judge’s explanation of the marital privilege was inaccurate.  He told the mother that she could refuse to testify about conversations with the defendant, when, as the defendant correctly asserts, she was not obligated to testify at all.  This error raises a serious question of fairness.  Therefore, should there be a retrial, after properly explaining the privilege, the judge should conduct a colloquy to determine whether the mother voluntarily chooses to waive her marital privilege.

b.  Marital disqualification.  The defendant claims that the admission in evidence of Sally’s testimony about statements the mother made to her that the defendant had apologized for the incident was improper, highly prejudicial, and in violation of the marital disqualification statute, which prohibits spouses from testifying “to private conversations with the other.”[10]  The Commonwealth asserts that the statute does not preclude third parties from testifying about a private conversation between spouses based on statements made to them by one of the spouses.  See Commonwealth v. O’Brien, 377 Mass. 772, 775 (1979).

In the circumstances of the present case, we conclude that the statute disqualifies Sally from testifying about the mother’s statements.  We further conclude, regardless of the operation of the statute, that the prejudice to the defendant warrants a reversal of his conviction.[11]

Over a century ago, in Brown v. Wood, 121 Mass. 137, 138 (1876), the Supreme Judicial Court held that the privacy of a communication is not destroyed by one spouse’s voluntary postconversation disclosure of the conversation’s content to a third party.  The case was decided under the 1870 precursor to the statute at issue here.[12]  The question before the court was whether the husband could avoid replevin of a horse on the ground that he had conveyed the animal to his wife in repayment of a loan she had made to him in a private conversation.  Although, in Brown, the statute was applied to avoid the perpetration of a fraud by collaborating spouses, the court ruled that the statute disqualifies third parties from testifying about a private conversation between spouses.  The court stated that such testimony “was even more objectionable, as it was necessarily only a repetition of what the husband or wife had stated to have been the substance of their conversation.”  Id. at 138.  See Gallagher v. Goldstein, 402 Mass. 457, 459 (1988) (“Testimony as to the contents of a private conversation is inadmissible even if both spouses desire the evidence to be admitted”).

While we have found no later published Massachusetts decision that discusses this point, there is persuasive authority in various Massachusetts legal publications that supports our conclusion.  See Young, Pollets, & Poreda, Annotated Guide to Massachusetts Evidence § 504, at 238 (2014) (“Third persons ought not be permitted to testify where disclosure is made by a spouse subsequent to a confidential communication”); Carney, Massachusetts Evidence:  A Courtroom Reference § 3.3(c), at 3-9 (Mass. Cont. Legal Educ. 2015) (“Privacy is also not destroyed by one spouse’s voluntary postconversation disclosure of the conversation’s content to a third party”); 3 Federico & Zupcofska, Massachusetts Divorce Law Practice Manual § 18.3.3, at 18-6 (Mass. Cont. Legal Educ. 2012) (“[O]ne cannot circumvent the general disqualification by introducing otherwise inadmissible evidence through the testimony of a selected third party by having the content of the private conversation told to that third party”).  Additionally, our position is consistent with the purpose of the statute, which is to ensure the privacy of marital communications.  See Commonwealth v. Gillis, 358 Mass. 215, 217-218 & n.2 (1970) (“The policy underlying the statutory exclusion of private marital conversations has been much discussed[:] . . . to protect the marital relationship or to encourage confidence between spouses, or merely [to] reflec[t] legislative reticence concerning marital confidences” [citations omitted]).  See also Gallagher v. Goldstein, supra at 460 (wherein the court observed that “the statutory disqualification as to evidence of private conversations between spouses may be viewed as a statutory preservation of a remnant of an outdated common law concept. . . . However, the Legislature has enacted a statute stating a clear and unambiguous preference for the marital disqualification”).

Having determined that it was error to admit testimony regarding the defendant’s apology to the mother, we now consider whether the error prejudiced the defendant such that it created a substantial risk of a miscarriage of justice.  Clearly, the defendant’s reported statement that “he’s sorry that he did it” amounted to a confession.  Its introduction plainly suggested to the jury that he was guilty.  ”[A] defendant’s statement is usually ‘the key item in the proof of guilt, and certainly one of overpowering weight with the jury.’”  Commonwealth v. Berg, 37 Mass. App. Ct. 200, 203 (1994), quoting from Commonwealth v. Tavares, 385 Mass. 140, 152, cert. denied, 457 U.S. 1137 (1982).  Furthermore, the rest of the evidence against the defendant was not overwhelming.  To a large extent, the case was a credibility contest between Sally and the defendant.  Given this, we have no doubt that the error contributed to the verdict and, therefore, was prejudicial.  See Commonwealth v. Fidalgo, 74 Mass. App. Ct. 130, 134 (2009).

Moreover, contrary to the Commonwealth’s argument, the testimony was no less prejudicial because it was admitted for the limited purpose of impeachment.  To begin with, we are concerned about the propriety of the prosecutor’s questions to the mother about the defendant’s statement.  See note 8, supra.  While it appears that the prosecutor believed she had a good faith basis for posing the questions, it is far less clear that her belief rested on solid footing.[13]  Indeed, defense counsel contended from the beginning that the mother denied having made the statements in question.[14]

Nor are we persuaded that the judge’s limiting instruction as to the use of the impeachment evidence, while appropriate in the ordinary case, was sufficient to cure the error.  “Generally, ‘[w]e presume, as we must, that a jury understands and follows limiting instructions.’”  Commonwealth v. Rosa, 412 Mass. at 160, quoting from Commonwealth v. Jackson, 384 Mass. 572, 579 (1981).  See Commonwealth v. Crayton, 470 Mass. 228, 251 (2014).  Here, however, Sally’s testimony about the defendant’s statements was too prejudicial for the jury to hear and use to impeach the mother without considering it substantively.[15]

c.  First complaint instruction.  Although the defendant did not object at trial, he now claims that the judge’s instruction on the use of first complaint testimony given at the time Sally testified was incomplete.  It suffices to say that at any retrial it should be kept in mind that Commonwealth v. King, 445 Mass. 217, 247-248 (2005), and its progeny require that the jury be instructed on first complaint testimony at each instance first complaint testimony is introduced at trial, and in the judge’s final instructions to the jury.

d.  Remaining claims.  The defendant’s remaining claims of error relate to various evidentiary rulings.  In view of our disposition, we need not address these issues.  See Commonwealth v. Anestal, 463 Mass. 655, 663 n.12 (2012).

Conclusion.  The judgment is reversed and the verdict is set aside.

So ordered.

Full-text Opinions

DUFFLY, J. (dissenting, with whom Lenk and Hines, JJ., join).  The court today upholds three convictions of attempted unarmed burglary of a single dwelling on a single night, based on the defendant’s guilty pleas acknowledging his intent to commit unarmed burglary of the dwelling.  It is conceivable that a person properly could be convicted of three attempts of unarmed burglary of the same dwelling in a single night, and the defendant here acknowledged in his plea that he intended to commit an unarmed burglary and undertook the acts separately alleged in the indictments:  removing an outer screen, positioning a ladder, and smashing a glass door with a rock.  As to the indictment alleging the overt act of “smash[ing] a glass sliding door in order to facilitate entry into the home”, I concur in the judgment of the court that the evidence supports a conviction of attempted unarmed burglary.  In addition to acknowledging that he had smashed the glass door with a rock, intending to burglarize the dwelling, the defendant agreed with the prosecutor’s statement at the plea colloquy that, before fleeing, he had been standing on the deck, at the rear door, and that he “had been trying to force the rear door.”

As to the other two acts which form the basis of the other two indictments, but were “not the final act in a necessary sequence,” Commonwealth v. McWilliams, 473 Mass.    ,     (2016) (McWilliams), the evidence fails to show that each act was “so close to the commission of the crime that a reasonable jury could conclude that it was virtually certain that he would have” committed the substantive offense of unarmed burglary.  Id.  Therefore, I respectfully dissent.

The attempt statute, G. L. c. 274, § 6, was enacted in 1832.  See St. 1832, c. 62.  It criminally punishes “[w]hoever attempts to commit a crime by doing any act toward its commission, but fails in its perpetration, or is intercepted or prevented in its perpetration . . . .” The analytical framework which heretofore has informed our understanding of the statutory crime of attempt was developed well over a century ago and has remained unaltered to this day.  Aswe recently reiterated, “[t]here are two categories of attempt.”  McWilliams, supra at    .  In the first category, a defendant has undertaken “the last act required to complete the crime, but for some unanticipated reason, his or her efforts are thwarted, whether by bad aim or a mistake in judgment.”  Id.  See Commonwealth v. Bell, 455 Mass. 408, 413 (2009) (Bell), quoting Commonwealth v. Peaslee, 177 Mass. 267, 271 (1901) (Peaslee).[10]  Ascertaining “criminal liability for this sort of failed attempt is uncomplicated and noncontroversial.”  Bell, supra at 424 (Gants, J., dissenting).  In the second category, which we have described as “more complicated,” McWilliams, supra at    , a defendant has been interrupted in the “preparatory mode,” before having undertaken the last act necessary to commit the offense.  See id.; Bell, supra at 413.

An overt act, even when coupled with the intent to commit a crime, “commonly is not punishable if further acts are contemplated as needful.”  Peaslee, supra at 272.  Where, as here, a defendant has been interrupted before having undertaken the last necessary act, the focus of the inquiry is whether a defendant’s “overt acts . . . , 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” committed the substantive offense.  McWilliams, supra at    .  See Bell, supra at 413-414; Peaslee, supra at 272.  The distance between the overt act and the completion of the “crime must be ‘relatively short’ and ‘narrow,’” McWilliams, supra at    , quoting Bell, supra at 415. How narrow depends on “the gravity of the crime, the uncertainty of the result, and the seriousness of harm that is likely to result.”  McWilliams, supra at    , citing Bell, supra at 414.  See Commonwealth v. Kennedy, 170 Mass. 18, 22 (1897).[11]  See also Commonwealth v. Gosselin, 365 Mass. 116, 121 (1974).

In this case, where each indictment alleged a nonviolent crime, not directed against a person, perpetrated by an unarmed individual, the degree of proximity between the overt act and completion of the crime must be quite narrow.  Contrast McWilliams, supra at    .  In the circumstances here, a defendant’s conduct at the point when he or she was interrupted must have brought the defendant so close to perpetration of the offense as to render it “virtually certain” that, but for the interruption, the defendant would have committed the substantive crime.  See id.  To determine whether a defendant properly may be convicted of attempt requires that we examine any acts remaining in the sequence, as well as “all conduct short of the last act as ‘preparation’”.  See Bell, supra at 428 (Gants, J., dissenting), quoting Peaslee, supra at 272.[12]

Here, the indictments alleged that the defendant “did smash a glass sliding door,” “did remove an outer screen,” and “did position a ladder in order to facilitate entry into the home.”  To find the defendant guilty of three separate crimes of attempt, each act must be considered independently, without the context provided by the other acts alleged.

Considering first the conviction based on the defendant’s admissions that he removed an outer screen from a first-floor window and that he intended to commit a burglary, nothing in the indictment or in the plea colloquy indicates that the absence of the screen alone would have enabled the defendant to enter the dwelling without undertaking several additional steps.  If the window were located anywhere above the basement level (the record does not indicate the location or size of the window), entry might have required locating the means, such as a box, to reach the window to achieve entry; the defendant then would have had to climb or stand on that object; if the window were locked, the defendant would have had to break or pick the lock, or break the window, having first obtained an implement with which to do so, before attempting entry into the dwelling.  On this record, given the steps that remained before the defendant could have completed the substantive offense, I cannot agree that the act of merely removing an outer screen was “so close to the commission of the crime that a reasonable jury could conclude it was virtually certain that he would have” burglarized the house.  McWilliams, supra at    .

The conviction based on the defendant’s admission to placing a ladder against the house raises similar concerns.  The defendant agreed only that he moved a ladder “in order to facilitate entry” into the dwelling.[13]  Based on the facts in the record, even if the ladder had been placed directly under a second-floor window, and had been long enough to reach the window (neither fact being established in the record and, given the actions with the rock, the contrary apparently being the case), the defendant still would have had to climb the ladder in order to reach the window and thereafter find a way to break either the lock or the window in order to enter the house.  In the context of the established facts, these are acts of preparation that involve arranging the means necessary in order to be able to commit a burglary, not sufficient overt acts to permit a reasonable fact finder to conclude that it was “virtually certain” that he would have committed the burglary with each discrete act.

The court concludes that each act came near enough “to the accomplishment of the crime of burglary” to be punishable, ante at    , without explaining how it arrives at this conclusion.  In light of the scant facts in the record and the gaps discussed above, the court must be inferring from the defendant’s guilty pleas the existence of the additional facts that would be required to show that he came sufficiently close to committing burglary to support three convictions of attempt.  Such an inference, however, is improper; “an admission to a crime generally will not function in itself as an admission to all of the elements of that crime.”  Commonwealth v. Sherman, 451 Mass. 332, 337 (2008).  See id. at 336-338 (discussing dismissal of guilty plea where defendant claimed his agreement to facts recited by prosecutor did not satisfy elements of crime).  Accordingly, 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

SJC-11918

ADOPTION OF DOUGLAS (and five companion cases^[1]).

February 17, 2016.

Adoption, Standing, Visitation rights, Care and protection.  Parent and Child, Adoption, Care and protection of minor.   Minor, Visitation rights, Care and protection.  Practice, Civil, Care and protection proceeding, Assistance of counsel.  Supreme Judicial Court, Superintendence of inferior courts.

These cases are appeals of consolidated care and protection petitions concerning six children — Douglas, Tom, Brian, Mark, Cole, and Frank.  The appeals are brought by the biological mother of the six children; by the biological father of the two oldest children (father I) — Douglas and Tom; and by four of the children — Douglas, Tom, Brian, and Mark.  They appeal from the provisions of decrees of the Juvenile Court denying parental visitation after termination of the parental rights of the mother, father I, and the biological father of the four younger children (father II) — Brian, Mark, Cole, and Frank.^[2]  The Appeals Court, in a memorandum and order pursuant to its rule 1:28, dismissed the appeals of the mother and father I.  It concluded that neither had standing to challenge the orders concerning visitation because their parental rights had been terminated after the consolidated hearings, pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3, were concluded, and they had not appealed from the entry of the termination decrees.  See Adoption of Douglas, 87 Mass. App. Ct. 1118 (2015).  With respect to the appeal of the four children, the Appeals Court affirmed the decrees of the Juvenile Court.  Id.  We granted further appellate review, and affirm the Juvenile Court judge’s decrees.

Background.  The Department of Children and Families (department) filed a care and protection petition on behalf of Douglas, Tom, Brian, and Mark, alleging neglect due to substance use and domestic abuse of all four children.  The department subsequently filed a care and protection petition on behalf of Cole and Frank, and the two petitions were consolidated.  On March 3, 2010, the mother, father I, and father II each stipulated to his or her current unfitness and that their respective children were in need of care and protection.^[3]

On June 3 or 4, 2013, each of the parents submitted a written stipulation acknowledging his or her current unfitness, agreeing to the issuance of a decree terminating his or her respective parental rights; waiving the right to trial on the merits of the care and protection petitions; and waiving the right to appeal “as to unfitness and the termination of parental rights.”  The stipulations of father I and the mother also expressly reserved “the right to appeal any decision rendered as to the proposed plans of adoption for each child.”  They did so with the apparent understanding and agreement that entry of decrees terminating their parental rights would be deferred until “the conclusion of the[] hearings” concerning placement of the children and parental and sibling visitation, that they would retain the right to participate in those placement hearings, and that they could appeal from any adverse result.  The Juvenile Court judge conducted colloquies and accepted the stipulations,^[4] but neither found the parents unfit nor entered decrees terminating their parental rights at that time.

The judge thereafter conducted a hearing in the consolidated cases that extended over the course of seven days, beginning on June 3, 2013, and concluding on June 20, 2013.  Thereafter, on October 1, 2013, the judge issued an order adjudicating, pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3, the parents to be unfit; ordering the entry of decrees terminating their respective parental rights; approving the plans of adoption submitted by the department;^[5] declining to order either posttermination or postadoption visitation between the children and their respective biological parents; and ordering sibling visitation.  He issued 449 findings of fact and twenty-nine conclusions of law on February 10, 2014.  The mother, father I, and the four oldest children (Douglas, Tom, Brian, and Mark) appealed.

Standing.  Until parental rights have been terminated by entry of a decree, parents have the right to participate in proceedings to determine issues such as placement and visitation arrangements concerning their children.^[6]  See Adoption of Gillian, 63 Mass. App. Ct. 398, 408 (2005); Adoption of Dora, 52 Mass. App. Ct. 472, 474-476 (2001).  In this case, the mother and father I had a right to (and did in fact) participate in the “best interests” hearings because, although they had stipulated to unfitness and agreed to the entry of decrees terminating their respective parental rights, no decree terminating those rights had entered at that time.  See Adoption of Malik, 84 Mass. App. Ct. 436, 441 n.10 (2013); Adoption of Gillian, supra at 408 (parents “had the opportunity to raise and preserve [the visitation] issue prior to termination of their parental rights, but failed to do so”); Adoption of Dora, supra at 476-477.  See also G. L. c. 119, § 26 (b) (4); G. L. c. 210, § 3 (b) (“entry of [a decree] shall have the effect of terminating the rights” of parent).

It is only after “a decree enters terminating parental rights . . . [that] the parent whose rights have been terminated is without standing to determine the child’s future,” Adoption of Malik, 84 Mass. App. Ct. at 438, although he or she may press an appeal challenging the adjudication of the termination proceeding.  Id. at 439.  See Adoption of Rico, 453 Mass. 749, 757 n.16 (2009); Adoption of Helen, 429 Mass. 856, 858 (1999); Adoption of John, 53 Mass. App. Ct. 431, 433 (2001).  The department’s suggestion that the biological parents are presently without standing to challenge on appeal the judge’s visitation orders, because their parental rights were terminated after the hearings concluded, is without merit.  See Adoption of Rico, supra (where “visitation order . . . was part of the adjudication of a termination proceeding to which the father was a party,” biological father has standing to challenge visitation order on appeal).  The judge resolved the fitness, termination, placement, and visitation issues in the same decision, “as part of the adjudication of a termination proceeding” to which the biological parents were parties.^[7]  Id.

Where the factual basis for termination of parental rights is not contested, deferring the entry of a termination decree until the completion of a “best interests” hearing on issues such as adoption and visitation under G. L. c. 210, § 3, see Adoption of Dora, 52 Mass. App. Ct. at 476, permits the proceedings to be expedited, while preserving a parent’s right to participate in the hearing, and maintaining the parent’s standing to challenge the resulting adoption, visitation, or similar order on appeal.  In such circumstances, “the substantive point of focus in reviewing the validity of the order” is the child’s best interests.^[8]  Adoption of Rico, 453 Mass. at 757 n.16.  See Adoption of John, 53 Mass. App. Ct. at 435 n.7 (“A number of factors could influence a parent to make this decision [to agree to the entry of a termination decree], including the recognition of an inability to parent, coupled with the realization that agreement might bring to a speedier conclusion a process that is often protracted, thereby giving the child a certain and stable future”).  The mother and father I have standing to press their appeal.

Ineffective assistance of counsel.  For the first time on appeal, the mother contends that she received ineffective assistance of counsel at trial.  In particular, she claims that trial counsel failed to notify the judge prior to the colloquy that the mother’s stipulation to unfitness and agreement to the entry of a decree terminating her parental rights purportedly was conditioned on the placement of all six of her children with relatives.  As we have said, “‘the preferred method of resolving factual disputes concerning the conduct of the original trial’ is for the aggrieved party to file a motion for a new trial.  Absent exceptional circumstances, we do not review claims of ineffective assistance of counsel for the first time on appeal.”  Care & Protection of Stephen, 401 Mass. 144, 150 (1987), quoting Commonwealth v. Saferian, 366 Mass. 89, 90 n.1 (1974).  There being nothing in the record to suggest that this case presents extraordinary circumstances, and the factual basis for such a claim not being demonstrated adequately on the record before us, we decline to do so here.^[9]

Parental visitation.  Once a biological parent has been found unfit to care for a child, “[t]ermination denies [him or her] physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child.”  Petition of Catholic Charitable Bur. of the Archdiocese of Boston, Inc., to Dispense with Consent to Adoption, 392 Mass. 738, 741 (1984), quoting Santosky v. Kramer, 455 U.S. 745, 749, 753 (1982).  Where it is in the child’s best interests, however, a judge has broad discretion to grant posttermination or postadoption visitation.  See Adoption of Vito, 431 Mass. 550, 562 (2000) (discretion “grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent, not in the rights of the biological parent nor the legal consequences of their natural relation”); Adoption of Warren, 44 Mass. App. Ct. 620, 626 n.5 (1998) (“The decision as to whether to allow postadoption [or posttermination] visitation is more a question of what is in the interests of the child, rather than one of the rights of the parent”).  With respect to posttermination visitation in particular, “[t]he purpose of such contact is not to strengthen the bonds between the child and his biological mother or father, but to assist the child as he negotiates, often at a very young age, the tortuous path from one family to another.”  Adoption of Vito, supra at 564-565.  See Adoption of Zander, 83 Mass. App. Ct. 363, 366 (2013).  See also Adoption of Rico, 453 Mass. at 754-755.  The judge did not abuse his discretion in declining to order parental visitation in this case.

The department’s plans for the children proposed that “the four oldest [children] should have visits with their mother”; that father I would have continued visitation with the two oldest children; and that visitation between the two middle children and father II should be considered with caution.^[10]  The judge’s extensive factual findings make clear that he thoroughly considered evidence of the children’s bonds with their respective parents.  With respect to the mother, he acknowledged that the oldest child, Douglas, had a bond with the mother, but concluded that a visitation order was not in Douglas’s best interests.  Among other things, the judge found that the mother continually failed to maintain appropriate boundaries with Douglas.  The judge also found that there was no significant bond between the mother and her other five children.  There is sufficient evidence to support the judge’s determination that orders for visitation with the mother were not in the children’s best interests.

With respect to visitation with father I, the judge found that there was no evidence of a significant relationship or bond between him and the two oldest children.  Before June 28, 2010, Tom (who turned seven years old in July, 2010) had never met father I, and Douglas (who was at that time nine years and five months old) had last seen father I when he was a baby.  Douglas visited father I approximately six times before trial, and his last visit was in July, 2012, almost one year before trial.  Tom visited with father I five times from birth until trial.  Although there was some evidence that visits between father I and the two children went well, in the absence of evidence of a significant existing bond, we cannot say that the judge abused his discretion in concluding that an order requiring visitation was not in the children’s best interest.^[11]  See Adoption of Vito, 431 Mass. at 563.  In the circumstances, the judge properly declined to order visitation with father I.

The two middle children, Brian and Mark, likewise sought an order requiring posttermination and postadoption visitation with father II.  The judge found, however, that the two children were experiencing stability for the first time, and that their behavior issues had improved.  He also found that there had been no contact with father II for the two years prior to trial, and that there was no evidence of a significant bond with the children.  He concluded that visitation “based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent,” Adoption of Vito, 431 Mass. at 562, was not in the best interests of the children.  See Adoption of Edgar, 67 Mass. App. Ct. 368, 371 (2006).  The record provides support for this determination; the judge did not abuse his discretion.^[12]

Conclusion.  Prior to the entry of a decree terminating parental rights, a parent has standing to participate in proceedings to determine issues such as placement and visitation of a child.  Where orders involving termination, placement, and visitation are issued as part of the same adjudication of a termination proceeding, a parent has standing to press on appeal any challenge that he or she has not expressly waived to that adjudication.  There being no error in the judge’s decrees in this case, we affirm the orders denying posttermination or postadoption parental visitation.

So ordered.

Craig T. Spratt for Douglas & others.
Warren M. Yanoff for father I.
Diana Cowhey McDermott for the mother.
Robert J. McCarthy, Jr., for Cole & another.
Lynne M. Murphy for Department of Children and Families.

Jaime L. Prince & Andrew L. Cohen, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

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-1914                                       Appeals Court

COMMONWEALTH  vs.  ALBERT LOVERING.

No. 14-P-1914.

Middlesex.     December 4, 2015. – February 17, 2016.

Present:  Cypher, Wolohojian, & Carhart, JJ.

Firearms.  Evidence, Constructive possession.  Abuse Prevention.  Practice, Criminal, Required finding.

Complaint received and sworn to in the Waltham Division of the District Court Department on October 11, 2011.

The case was tried before Maurice R. Flynn, III, J.

Kimberly M. Peterson for the defendant.

Michael Shiposh, Assistant District Attorney, for the Commonwealth.

     WOLOHOJIAN, J.  The question presented is whether there was sufficient evidence to prove beyond a reasonable doubt that the defendant had constructive possession of a firearm on the specific date of September 11, 2011.  We agree with the defendant that the evidence was insufficient to prove that he constructively possessed the gun on the date charged in the complaint.  We accordingly reverse his conviction of possessing a firearm without a firearm identification card, G. L. c. 269, § 10(h).  However, because the evidence was sufficient to prove that the defendant owned the gun, we affirm his convictions of violating the gun storage statute, G. L. c. 140, § 131L, and of violating an abuse prevention order by failing to surrender the gun, G. L. c. 209A, § 7.[1]

We review the denial of a motion for a required finding of not guilty by asking whether any rational fact finder, when viewing the evidence in the light most favorable to the Commonwealth, could find all material elements of the offense beyond a reasonable doubt.  See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).  ”Circumstantial evidence is competent to establish guilt beyond a reasonable doubt.”  Commonwealth v. Merola, 405 Mass. 529, 533 (1989).  However, “[i]t is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense.  Nor may a conviction rest upon the piling of inference upon inference or conjecture and speculation.”  Commonwealth v. Armand, 411 Mass. 167, 170 (1991) (citation and quotation omitted).

Taken in the light most favorable to the Commonwealth, the evidence showed the following.  The defendant’s wife found a loaded Walther PPK handgun (gun) on September 11, 2011, while dusting the apartment she had shared with the defendant for approximately twelve years.[2]  The gun was in a leather pouch which was, in turn, contained in an old wooden box among the defendant’s other personal belongings on the floor of the living room.  The gun was of a sort issued by the Nazi government; the defendant collected Nazi memorabilia.

Almost one month earlier, on August 18, 2011, the wife had obtained an abuse prevention order requiring the defendant to stay away from the apartment and allowing him to return to pick up his belongings only with a police escort.  It was uncontroverted at trial that the defendant had not returned to the apartment since the order was entered.[3]  The Commonwealth introduced no evidence as to the defendant’s whereabouts on September 11.[4]

The defendant was charged with possessing a firearm without a firearm identification card, G. L. c. 269, § 10(h), on September 11, 2011 (the date of its discovery).  Because the defendant did not have actual possession of the gun on that date, the Commonwealth proceeded on a theory of constructive possession.  “To permit a finding of constructive possession there must be evidence sufficient to infer that the defendant not only had knowledge of the item[], but had the ability and intention to exercise dominion and control over [it].”  Commonwealth v. Frongillo, 66 Mass. App. Ct. 677, 680 (2006).

The evidence was sufficient to allow the jury to find that defendant had knowledge of the firearm,[5] but not that he had the ability to exercise dominion and control over it on the date charged.  Although the gun was found among the defendant’s personal effects, he no longer lived in the apartment.  See Commonwealth v. Boria, 440 Mass. 416, 420 (2003) (where dwelling is shared by defendant and one or more other persons “[c]ontraband found in proximity to a defendant’s personal effects may provide a link between a defendant and the contraband”).  Moreover, the defendant had not been in proximity of the gun for almost a month, there was no evidence as to when (if ever) he might return to the apartment, and there was no evidence that he was anywhere near the gun on September 11.  See Commonwealth v. Duffy, 4 Mass. App. Ct. 655, 660 (1976); Commonwealth v. Booker, 31 Mass. App. Ct. 435, 438 (1991); Commonwealth v. Delarosa, 50 Mass. App. Ct. 623, 628 (2000) (each noting that the defendant’s absence at the time contraband was discovered and each concluding that there was insufficient evidence of constructive possession).

Even though, as discussed above, there was insufficient evidence to support a finding that the defendant constructively possessed the firearm on September 11, there was sufficient evidence to infer that the defendant owned the firearm on that date:  the wife told the responding officer that “it was her husband’s [firearm],” the gun was located among the defendant’s other possessions in the apartment he had lived in for twelve years, and the defendant collected Nazi memorabilia like the Nazi-issued firearm in this case.

As a result, there was sufficient evidence that the defendant violated the gun storage statute, which imposes liability on owners of firearms, not only those having actual or constructive possession.[6]  Under the gun storage statute, it is “unlawful to store or keep any firearm . . . in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user.”  G. L. c. 140, § 131L.  The statute “applies to weapons when they are neither carried nor under the control of their owner or other authorized user.”  Commonwealth v. Patterson, 79 Mass. App. Ct. 316, 318 (2011).

For the same reason, there was sufficient evidence that the defendant violated an abuse prevention order by failing “to surrender all firearms, rifles, shotguns, machine guns and ammunition which he then controls, owns or possesses.”  G. L. c. 209A, § 3B.

We therefore affirm the judgments on the charges of violating the gun storage statute and of violating an abuse prevention order.  On the charge of possessing a firearm without a firearm identification card, the judgment is reversed, the verdict is set aside, and a new judgment shall enter for the defendant.

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-11877

COMMONWEALTH  vs.  PETER CHAMBERLIN.

Bristol.     October 6, 2015. – February 19, 2016.

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

Cellular Telephone.  Subpoena.  Practice, Criminal, Motion to suppress, Subpoena, Warrant.  Search and Seizure, Warrant.

Indictments found and returned in the Superior Court Department on November 21, 2007.

Pretrial motions to suppress evidence were heard by D. Lloyd Macdonald, J., and the cases were tried before Robert J. Kane, J.

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

Merritt Schnipper for the defendant.

Tara L. Blackman, Assistant District Attorney, for the Commonwealth.

Chauncey B. Wood, Matthew R. Segal, Jessie J. Rossman, Kevin S. Prussia, & Caitlin W. Monahan for Massachusetts Association of Criminal Defense Lawyers & another, amicus curiae, submitted a brief.

Marguerite T. Grant, Assistant District Attorney, for District Attorney for the Norfolk District, amicus curiae, submitted a brief.

LENK, J.  In the aftermath of an attempted robbery in 2007, where the victim was bound, threatened, and shot, the police conducted an investigation seeking three attackers who had fled the scene.  As part of that investigation, a detective obtained from a cellular telephone service provider certain subscriber records for the defendant’s telephone number.  The information thus obtained formed part of a later affidavit offered in support of a search warrant that, in turn, ultimately yielded several items of an incriminatory nature subsequently admitted at trial.  Before trial, the defendant without success moved to suppress the telephone records and the physical evidence obtained pursuant to the warrant.  He was convicted of armed robbery while masked, G. L. c. 265, § 17; kidnapping for purposes of extortion, G. L. c. 265, § 26; and armed assault with intent to murder, G. L. c. 265, § 18.  Following affirmance of his convictions by the Appeals Court, see Commonwealth v. Chamberlin, 86 Mass. App. Ct. 705, 713 (2014), we allowed the defendant’s application for further appellate review, limited to issues related to his cellular telephone records.

The basis for the defendant’s challenge is the government’s failure to comply with G. L. c. 271, § 17B, the telephone records demand statute, as then in effect.  That statute in essence authorized the Attorney General or a district attorney on certain conditions to demand of common carriers (like the cellular telephone service provider here), by means of an administrative subpoena, all pertinent records in the provider’s possession.  There is little question that the means used here to obtain the records — a request made by a detective directly to the provider for voluntary production forthwith of the records — was not in compliance with the formal process contemplated in G. L. c. 271, § 17B.  The defendant maintains that G. L. c. 271, § 17B, establishes a baseline formal process necessary to the government’s gaining access to such records.  The government, on this view, having failed to comply with G. L. c. 271, § 17B, is foreclosed from circumventing its requirements and obtaining such records by informal means; the records obtained should accordingly be suppressed, along with any related evidence derived therefrom.

We conclude that G. L. c. 271, § 17B, as then in effect, did not itself preclude the government from obtaining the records at issue here.  Although the means employed to obtain the records also had to comply with the requirements of the Federal Stored Communications Act, 18 U.S.C. §§ 2701 et seq. (2006), we discern no error in the motion judge’s determination that those requirements were met in this case.  Accordingly, the motions to suppress were correctly denied and we affirm the convictions.[1]

Background and prior proceedings.  On September 24, 2007, three masked men held Antonio Alberto, the owner of a real estate agency, at gunpoint in his office; they bound his hands and ordered him to open a safe in the building.  When Alberto did not open the safe, the men threatened him, stating that they knew where he lived and “had [his] wife.”  After a struggle, Alberto was shot through the ear.[2]  He pretended to be dead until the intruders left, then called for emergency assistance and was taken to a hospital.

The following day, Alberto described the robbery to Lawrence Ferreira, a detective of the Fall River police department.  Alberto said that he had recognized the voice of one of the intruders as belonging to “Marco,” a man who had called him several times in the weeks before the robbery to express interest in properties listed by his real estate agency, and who had scheduled a meeting with him for the time of the robbery.  Alberto also informed Ferreira that the intruders had threatened his family, but did not appear actually to know where he lived, despite claims to the contrary.  Nevertheless, following the robbery, Alberto had been receiving hang-up calls at work and at home that “scared the hell out of” him.

Alberto reviewed the call log from his cellular telephone with Ferreira, and they were able to identify a telephone number for “Marco.”  Ferreira then searched for the number on a “police related search engine” that provided him with the subscriber information associated with that number.  The subscriber information included the defendant’s name and address.

What followed was the conduct contested in this appeal:  on September 26, 2007, Ferreira sought the defendant’s telephone records directly from an employee in the cellular service provider’s law enforcement relations department.  Rather than causing the provider to be served with an administrative subpoena or some other form of legal process, Ferreira gave the employee over the telephone “a brief synopsis” of his investigation, and promised that he would provide a subpoena within forty-eight hours.  On the night of September 26, 2007, Ferreira sent the employee a letter that included the suspect’s phone number and a summary of the investigation.[3]  A few hours later, the employee provided Ferreira with the defendant’s subscriber information and a call log for the defendant’s cellular telephone number for the prior two weeks.[4]  The following day, September 27, 2007, Ferreira asked the assistant district attorney assigned to the case to send the provider a subpoena for the records.  A grand jury subpoena apparently was sent the same day.[5]

As noted, the defendant’s pretrial motions to suppress the records produced were denied after an evidentiary hearing.  In essence, the judge who heard the motions (motion judge) determined both that G. L. c. 271, § 17B, was not the exclusive means by which the government could obtain such records and that the service provider’s good faith, voluntary disclosure of the records in exigent circumstances did not violate the Federal Stored Communications Act.  After a jury convicted the defendant, the Appeals Court determined, inter alia, that the defendant’s motions to suppress properly were denied, see Chamberlin, supra at 706-710, and we allowed the defendant’s application for limited further appellate review.

Discussion.  Because the defendant does not raise any constitutional claims,[6] our inquiry is limited to whether Ferreira was permitted to request the defendant’s telephone records directly from the service provider without first complying with at least the formal process set out in G. L. c. 271, § 17B.  “[W]hen reviewing a motion to suppress, we accept the judge’s subsidiary findings of fact absent clear error, but independently review the judge’s ultimate findings and conclusions of law” (quotation and citation omitted). Commonwealth v. Jewett, 471 Mass. 624, 628 (2015).  In light of its text and legislative history, we conclude that G. L. c. 271, § 17B, as in effect in 2007, did not preclude the government from asking a service provider to disclose customer records voluntarily.[7]  Nonetheless, under the Federal Stored Communications Act, service providers are permitted to disclose those records voluntarily only in certain limited circumstances.  See 18 U.S.C. § 2702(c)(1)-(6).  Because we discern no error in the trial court judge’s determination that one such set of circumstances existed here, we affirm.

1.  Statutory overview.  General Laws c. 271, § 17B, was first enacted in 1966, apparently as part of a broader effort to combat the use of landline telephones in illegal gaming operations.  See, e.g., 1966 House Doc. No. 3610 (summarizing bills targeting illegal telephone gaming operations).  As originally enacted, the statute provided that the Attorney General or a district attorney could demand customer records from a service provider whenever there were reasonable grounds to believe that a subscriber to that provider’s service was using the service for an unlawful purpose.  G. L. c. 271, § 17B, as inserted by St. 1966, c. 352.  By allowing the government to compel service providers to disclose customer records in the early stages of an investigation even when there was not yet probable cause for a warrant, the statute thus supplied “an investigatory tool, not as invasive as a house search or a wiretap, but nevertheless probing at the edges of privacy.”  Commonwealth v. Feodoroff, 43 Mass. App. Ct. 725, 728 (1997).  As we emphasized, “the statute [did] not provide the district attorney with a free hand to issue routine administrative subpoenas.”  Commonwealth v. Vinnie, 428 Mass. 161, 178, cert. denied, 525 U.S. 1007 (1998).  If the Attorney General or a district attorney had “no reasonable grounds for belief that the target was using the telephone for an unlawful purpose,” the telephone records could be suppressed.  Id.  General Laws c. 271, § 17B, remained essentially unchanged until 2008.  See St. 2008, c. 205, § 3.[8]

Twenty years after the Legislature enacted G. L. c. 271, § 17B, in 1966, the United States Congress enacted the Federal Stored Communications Act.  See Pub. L. 99-508, 100 Stat. 1860 (1986).  The Federal Stored Communications Act aims “to protect the privacy of users of electronic communications” during government investigations (citation omitted).  Commonwealth v. Augustine, 467 Mass. 230, 235 (2014).  It achieves that aim, as relevant here, by exposing to civil liability service providers that improperly disclose customer records to the government.  See 18 U.S.C. §§ 2707-2708.[9]  Service providers are permitted and indeed required to disclose customer records to a “governmental entity” when that entity has complied with one of the limited number of formal processes for making a demand, such as a warrant, a court order, or an administrative subpoena, as set forth in the act.[10]  See generally 18 U.S.C. § 2703(c).  Providers are permitted to disclose those records voluntarily to the government, however, only in limited circumstances.  See 18 U.S.C. § 2702(c)(1)-(6).  One such circumstance is when “the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.”  18 U.S.C. § 2702(c)(4).

Hence, in 2007, when the records at issue in this case were requested, the government was required to comply with the applicable provisions of the Federal Stored Communications Act.[11]  See Telecommunications Regulatory Bd. of P.R. v. CTIA-Wireless Ass’n, 752 F.3d 60, 68 (1st Cir. 2014) (Puerto Rico statute requiring service providers to disclose subscriber information without formal demand preempted by 18 U.S.C. § 2702[c]).  Nevertheless, the Federal Stored Communications Act creates only a minimum set of privacy protections that States are free to supplement.  See Lane v. CBS Broadcasting Inc., 612 F.Supp.2d 623, 637 (E.D. Pa. 2009) (“Congress expressly authorized states to legislate in this field”).[12]  Thus, regardless of whether a service provider is permitted to disclose a customer’s records voluntarily under the Federal Stored Communications Act, State law may prohibit the government from informally requesting such disclosure.  The question before us is whether G. L. c. 271, § 17B, as in effect in 2007, prohibited the government from making such an informal request.

2.  Minimum formal process under G. L. c. 271, § 17B.  The defendant contends that G. L. c. 271, § 17B, as enacted in 1966 and in effect in 2007 when the records at issue in this case were obtained, established a minimum formal process that the government must comply with in all circumstances.  To support this view, he argues that St. 2008, c. 205, § 3, amending G. L. c. 271, § 17B, should guide our understanding of the statute as originally enacted.

“A fundamental tenet of statutory interpretation is that statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result.”  Custody of Victoria, 473 Mass. 64, 73 (2015), quoting Sebago v. Boston Cab Dispatch, Inc., 471 Mass. 321, 339 (2015).  Neither the plain text of G. L. c. 271, § 17B, nor the context of its enactment supports the defendant’s construction of the statute.

We consider the language of the statute in effect when the records at issue in this case were obtained.  See Commonwealth v. Bradley, 466 Mass. 551, 560-561 (2013).  The statute provided, in relevant part:

“Whenever the [A]ttorney [G]eneral or a district attorney has reasonable grounds for belief that the service of a common carrier . . . is being or may be used for an unlawful purpose he may, acting within his jurisdiction, demand all the records in the possession of such common carrier relating to any such service.  Such common carrier shall forthwith deliver to the [A]ttorney [G]eneral or district attorney all the records so demanded” (emphasis supplied).  G. L. c. 271, § 17B, as enacted by St. 1966, c. 352.

On its face, G. L. c. 271, § 17B, set out an “investigatory tool” by which the government “may” obtain telephone records during an investigation.  See Feodoroff, 43 Mass. App. Ct. at 728.  The use of the word “may” in a statute generally “reflect[s] the Legislature’s intent to grant discretion or permission to make a finding or authorize an act.”  Commonwealth v. Dalton, 467 Mass. 555, 558 (2014).  By using the word “may” here, the Legislature indicated no more than that the government may, but need not, obtain telephone records by using this tool.

The defendant would read the Legislature’s silence as to any other means available to the government as limiting the government only to formal processes such as a search warrant or a grand jury subpoena.  However, we discern nothing in the language of the statute that imposed such constraints, and we must “not read into the statute a provision which the Legislature did not see fit to put there” (quotation and citation omitted).  See Chin v. Merriot, 470 Mass. 527, 537 (2015).[13]  That the Legislature supplied prosecutors with a statutory means to compel disclosure accordingly has no bearing on whether the government could also seek voluntary compliance from telephone companies in turning over customer business records.^[14]

The legislative history of G. L. c. 271, § 17B, is consistent with this construction of the statutory text.  It contains no suggestion that the Legislature intended to prevent the government from asking service providers to disclose customer records voluntarily.  When G. L. c. 271, § 17B, was originally enacted, see St. 1966, c. 352, the law was just one of several contemporaneous bills that sought to address the possibility of collusion between landline telephone service providers and illegal bookmaking operations.  See, e.g., 1966 House Doc. No. 1494 (creating special commission to investigate alleged aid to bookmakers by service providers); 1966 House Doc. No. 1497 (prohibiting service providers from providing service to illegal gaming operations); 1966 House Doc. No. 3610 (summarizing bills aimed at service provider collusion with illegal bookmakers).  The “investigatory tool” that the Legislature created in G. L. c. 271, § 17B, thus apparently provided a means to combat illegal bookmaking when voluntary disclosure by a telephone service provider was not forthcoming or otherwise possible.  Notwithstanding the Federal Stored Communications Act’s later concern about voluntary disclosure of telephone customer records by service providers, there is no evidence that the Legislature in 1966 had in mind any constraint on voluntary disclosure of this sort.

Recognizing the law’s silence with respect to voluntary disclosure, the defendant urges us to understand the version of G. L. c. 271, § 17B, in effect when the records at issue in this case were obtained in light of St. 2008, c. 205, § 3 (2008 amendment).  However, “the views of a subsequent [Legislature] form a hazardous basis for inferring the intent of an earlier one.”  Mass. Comm’n Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 194 (1976), quoting United States v. Price, 361 U.S. 304, 313 (1960).  Although the Legislature “may amend a statute simply to clarify its meaning,” amendments typically presume a change in the law.  See Cook v. Patient Edu, LLC, 465 Mass. 548, 554 (2013), quoting Boyle v. Weiss, 461 Mass. 519, 525 (2012).

The 2008 amendment updated the 1966 statute that was originally enacted to combat illegal telephone gaming operations to take into account electronic communications services that later came into widespread use.[15]  In addition, it substantively altered the standard that the Attorney General or a district attorney must meet in order to compel service providers to disclose customer records.[16]  These changes were more than simple clarifications.  Accordingly, neither the text of the 2008 amendment nor its legislative history affects our construction of the statute in effect in 2007.

We leave for another day whether G. L. c. 271, § 17B, as amended by St. 2008, c. 205, § 3, precludes the government from asking a service provider to turn over customer records voluntarily.  As noted above, the Legislature is free to supplement the statutory baseline provided in the Federal Stored Communications Act with additional privacy protections.  Neither the text nor the legislative history of G. L. c. 271, § 17B, in effect in 2007, however, supports the conclusion that the Legislature had already done so before the records at issue in this case were obtained.

3.  Compliance with Federal Stored Communications Act.  Although the government was not prohibited from asking the service provider to disclose the defendant’s records, the service provider was only free to provide that information to the government if one of the statutory exceptions set out in the Federal Stored Communications Act was met.  See 18 U.S.C. § 2702(c)(1), (4).  The motion judge considered specifically whether the service provider’s disclosure in this case satisfied the exigent circumstances exception, 18 U.S.C. § 2702(c)(4).  Under that exception, a service provider may disclose customer records voluntarily to the government if the service provider believes in good faith that an “emergency involving danger of death or serious physical injury . . . requires disclosure without delay of information relating to the emergency.”  18 U.S.C. § 2702(c)(4).

We defer to the findings of the motion judge unless they were clearly erroneous.  See Jewett, 471 Mass. at 628.  The judge found that the service provider produced the defendant’s records to the government voluntarily and in good faith, and did not violate the Federal Stored Communications Act.  The judge further found that exigent circumstances existed at the time the information was sought.

The record provides ample support for the judge’s findings.  Ferreira provided an employee in the service provider’s law enforcement relations department with “a brief synopsis” of his investigation over the telephone, sent the employee a letter stating that the defendant, a customer of the service provider, was a suspect in a shooting incident and had threatened the victim’s family, and promised that he would provide a subpoena within forty-eight hours.  Although Ferreira’s letter apparently misstated some of the facts of the investigation,[17] the service provider had a good faith belief that exigent circumstances justified disclosing the defendant’s records to Ferreira, and disclosed those records voluntarily.  There was no error.

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-1334                                       Appeals Court

COMMONWEALTH  vs.  BRENDAN T. ZAMMUTO.

No. 14-P-1334.

Middlesex.     December 17, 2015. – February 22, 2016.

Present:  Kafker, C.J., Cypher, Vuono, Carhart, & Kinder, JJ.

Practice, Criminal, Presence of defendant, Instructions to jury, Assistance of counsel.  Jurisdiction, Civil rights. District Court, Jurisdiction.  Civil Rights, Availability of remedy.

Complaint received and sworn to in the Malden Division of the District Court Department on September 2, 2011.

The case was tried before Antoinette M. Leoney, J.

James J. Cipoletta for the defendant.
Christina Lucci, Assistant District Attorney, for the Commonwealth.

     KINDER, J.  Following a jury trial in District Court, the defendant was convicted of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A; and a civil rights violation, G. L. c. 265, § 37.  On appeal, he contends (1) he was denied a fair trial when, after he defaulted, the trial proceeded in his absence, (2) the judge erred in failing to instruct the jury regarding his failure to testify, (3) the District Court lacked jurisdiction over the civil rights charge, (4) the motion for a required finding of not guilty on the civil rights charge should have been allowed; and (5) trial counsel was ineffective.  We affirm.

Background.  We summarize the trial evidence as follows.  As John Mastromarino stopped his scooter at an intersection with a four-way stop, he observed a motor vehicle “blow through” the stop sign.  He followed the vehicle and caught up to it at the next intersection.  He left his scooter at the side of the road, confronted the occupants, and yelled, “Bro, you almost just killed me.”  The defendant and the four other occupants got out of the vehicle.  The defendant, armed with a baseball bat, swung it at Mastromarino several times, calling him a “fucking nigger.”  One swing connected with Mastromarino’s forearm.  Thereafter, a motorcycle driver who was following the defendant’s vehicle removed his helmet and struck Mastromarino in the head with it, causing him to fall to the ground.[1]  The defendant and the others reentered the vehicle and left the scene.

Mastromarino observed the vehicle license plate number and reported it to the police.  Through the registry of motor vehicles and further investigation, police identified the defendant as a possible operator of the vehicle.  Mastromarino then identified the defendant’s photograph in an array prepared by the police and, ultimately, identified him at trial as the person who assaulted him with a baseball bat.

The defendant was in court for the entire morning session of the first day of trial, which included Mastromarino’s testimony.  When court reconvened after the lunch recess at 2:00 P.M., the defendant was not present.  The trial judge gave defense counsel time to attempt to locate the defendant.  Defense counsel reported that, after several telephone calls, he was unsuccessful in locating the defendant.[2]  At 2:30 P.M., the trial judge explained that she intended to continue with the trial pursuant to rule 18 of the Massachusetts Rules of Criminal Procedure, and defense counsel did not object.  See Mass.R.Crim.P. 18, 378 Mass. 887 (1979).  The judge denied the defendant’s motion for required findings of not guilty, and the defendant rested without presenting evidence.  The defendant appeared the following morning as the jury continued their deliberations.  When the trial judge inquired about his absence the day before, the defendant reported that he “fell asleep on the couch.”[3]

Discussion.  1.  Trial in absentia.  The defendant argues that when he failed to appear after lunch on the first day of trial, the judge should have conducted an investigation to determine if there was good cause for his absence.  Failure to conduct this investigation, according to the defendant, deprived him of a fair trial.  While the judge did not follow the protocol we have recommended, we are not persuaded, in the circumstances of this case, that the defendant did not receive a fair trial.

“If a defendant is present at the beginning of a trial and thereafter absents himself without cause or without leave of court, the trial may proceed to a conclusion in all respects except the imposition of sentence as though the defendant were still present.”  Mass.R.Crim.P. 18(a)(1), 378 Mass. 887 (1979).  When a defendant does not appear midtrial, the trial judge is to “determine whether the trial should proceed in the defendant’s absence or whether a mistrial should be declared.”  Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 639 (2003).  Specifically, the judge must determine whether the defendant’s absence is without cause and voluntary.  Ibid.  “This judicial determination, in turn, requires that there be time allotted for some measure of inquiry and investigation into the reasons for the defendant’s absence and the results of the efforts to locate the defendant.”  Ibid.  “To this end, the judge should grant a recess of such duration as the judge deems appropriate to allow for investigation.”  Ibid.  The preferred practice is that a voir dire hearing be held regarding the results of the investigation into the reason for the defendant’s failure to appear.  Id. at 639-640.  Following the hearing, the judge should make a finding whether the defendant’s absence is without cause and voluntary.  Id. at 640.

Here, the judge did allow defense counsel time to try to locate the defendant, but did not hold a hearing or make findings regarding the reason for the defendant’s absence.  Because there was no objection at trial, we review whether the failure to complete the Muckle protocol created a substantial risk of a miscarriage of justice.  See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

     The better practice would have been to hold a hearing and to make findings whether the defendant’s absence was without cause and voluntary.  In the circumstances, however, we conclude that the error does not constitute grounds to reverse the judgments.  The defendant has not claimed, much less shown, that a more vigorous effort to find him would have been successful, or that the reason for his absence from trial was anything but voluntary.  See Commonwealth v. Carey, 55 Mass. App. Ct. 908, 908 (2002).  Indeed, the defendant’s explanation the following day confirmed that he was at fault.  While the judge’s implicit finding that the defendant’s absence was voluntary was based on scant evidence at the time, there is no indication that it was incorrect.  See ibid.  Cf. Robinson v. Commonwealth, 445 Mass. 280, 289 (2005); Commonwealth v. Mora, 82 Mass. App. Ct. 575, 580-581 (2012).

Here, where the judge gave two cautionary instructions about the defendant’s absence, one at the time court reconvened and again in the final charge,[4] and where the prosecutor made no reference to the defendant’s absence in closing, there was no substantial risk of a miscarriage of justice regarding the manner in which the judge handled the defendant’s absence.

2.  Instruction on defendant not testifying.  The defendant claims that the trial judge should have instructed the jury regarding the defendant’s failure to testify, even though trial counsel did not request the instruction or object to its omission.  According to the defendant, the judge’s failure to instruct the jury compounded the failure to follow the Muckle protocol, creating a substantial risk of miscarriage of justice.  We disagree.  Absent a request by defense counsel, the judge was not required to give the instruction.  See Commonwealth v. Powers, 9 Mass. App. Ct. 771, 774 (1980).  Here the jury were instructed that the defendant was presumed innocent, the Commonwealth had the burden of proof, the defendant had no obligation to present any evidence, and the jury should draw no adverse inference against the defendant due to his absence.  In these circumstances, there was no error.

3.  Civil rights charge.  a.  Jurisdiction.  For the first time on appeal, the defendant argues that the District Court lacked jurisdiction over the civil rights charge because the Commonwealth prosecuted the case under the felony portion of the civil rights statute rather than the misdemeanor portion.  Such a jurisdictional claim can be raised at any time, including on appeal.  Tate, petitioner, 417 Mass. 226, 230 (1994).

Under G. L. c. 218, § 26, as appearing in St. 1992, c. 379, § 138, the District Court has jurisdiction over “all felonies punishable by imprisonment in the state prison for not more than five years.”  The punishment clause of the civil rights statute, G. L. c. 265, § 37, inserted by St. 1979, c. 801, § 2, provides:

“Any person convicted of violating this provision shall be fined not more than one thousand dollars or imprisoned not more than one year or both; and if bodily injury results, shall be punished by a fine of not more than ten thousand dollars or by imprisonment for not more than ten years, or both” (emphasis supplied).

Thus, the statute allows for the prosecution of both a misdemeanor and a felony, depending on whether bodily injury is alleged.  We previously have determined that the language regarding bodily injury describes a felony and, if charged in the complaint, is outside the jurisdiction of the District Court.  See Commonwealth v. Zawatsky, 41 Mass. App. Ct. 392, 395-396 (1996).  Jurisdiction depends, therefore, on whether the Commonwealth alleged that the civil rights violation resulted in bodily injury, rather than on the evidence offered by the Commonwealth at trial.  See id. at 396.  Simply put, if the complaint charged the defendant with causing the victim bodily injury, the District Court would not have had jurisdiction.

The analysis is straightforward.  The criminal complaint here charged that the defendant “did by force or threat of force, wilfully injure, intimidate or interfere with, or oppress or threaten John Mastromarino in the free exercise or enjoyment of a right or privilege secured to such person by the Constitution or laws of this Commonwealth or by the Constitution or laws of the United States, in violation of G. L. c. 265, § 37.”  However, there was no allegation that the charged conduct resulted in bodily injury.  Moreover, the charging document included a specific reference to the maximum penalty:  ”PENALTY:  imprisonment not more than 1 year; or not more than $ 1000; or both,” and the defendant was sentenced to the misdemeanor penalty of one year in the house of correction.  Because a misdemeanor was charged, the jury were instructed on the elements of the misdemeanor, and the defendant received a misdemeanor sentence, the District Court had jurisdiction.

b.  Sufficiency of evidence.  The defendant also argues that the trial judge should have allowed his motion for a required finding of not guilty on this charge because the Commonwealth presented insufficient evidence that he violated Mastromarino’s civil right to personal security.  Again, we disagree.  When reviewing a motion for a required finding of not guilty, we review the evidence in the light most favorable to the Commonwealth to determine if 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).  “The inferences drawn by the jury from the evidence ‘need only be reasonable and possible and need not be necessary or inescapable.’”  Commonwealth v. Kelly, 470 Mass. 682, 693 (2015) (citation omitted).

Here, the Commonwealth presented evidence that the defendant approached Mastromarino calling him a “nigger,” and repeated the racial slur as he hit Mastromarino with a baseball bat.  The defendant argues that Mastromarino forfeited his right to personal security when he approached the defendant’s vehicle to pick a fight.  However, we have stated that the “deprivation of civil rights contemplated by G. L. c. 265, § 37, does not have to be the predominant purpose of the defendant’s acts.”  Commonwealth v. Stephens, 25 Mass. App. Ct. 117, 124 (1987).  Even if there was evidence that the defendant acted in retaliation, the jury may still find that the defendant violated Mastromarino’s civil rights.  See ibid.  The specific intent requirement of the statute does not require the Commonwealth “to prove that the defendant had a particular evil or wicked purpose.”  Id. at 125.  It is enough to show that the defendant “engaged in activity which interferes with rights which as . . . matter of law are clearly and specifically protected by [the statute].”  Ibid., quoting from United States v. Ehrlichman, 546 F.2d 910, 928 (D.C. Cir. 1976), cert. denied, 429 U.S. 1120 (1977).  The evidence in this case met that standard.

4.  Ineffective assistance.  Finally, the defendant claims that trial counsel provided ineffective assistance by failing (1) to request a continuance to ascertain the defendant’s whereabouts after the lunch recess, (2) to object to the commencement of trial without the judge following the Muckle protocol, (3) to request a continuance prior to resting, and (4) to request jury instructions regarding the defendant’s failure to testify.  “[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial.”  Commonwealth v. Zinser, 446 Mass. 807, 810 (2006).  There is a narrow exception in cases where “the factual basis of the claim appears indisputably on the trial record.”  Id. at 811, quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).  The bases of the defendant’s claims here do not appear indisputably on the record.  The record is silent as to trial counsel’s strategy or any explanation for his actions.  See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).  Accordingly, we decline to address this claim.

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

15-P-366                                        Appeals Court

DOUG CLARK & others[1]  vs.  LEISURE WOODS ESTATES, INC.

No. 15-P-366.

Franklin.     November 13, 2015. – February 23, 2016.

Present:  Milkey, Carhart, & Massing, JJ.

Damages, Breach of covenant of quiet enjoyment, Breach of implied warranty of habitability, Consumer protection case.  Landlord and Tenant, Quiet enjoyment, Habitability, Consumer protection, Multiple damages, Snow and ice.  Consumer Protection Act, Damages, Landlord and tenant.  Manufactured Housing Community.  Snow and Ice.  Practice, Criminal, Witness.

Civil action commenced in the Western Division of the Housing Court Department on November 2, 2009.

The case was heard by Robert G. Fields, J.

Timothy N. Schofield for the defendant.

Jan Stiefel for the plaintiffs.

     MASSING, J.  This appeal involves a series of landlord-tenant disputes in the manufactured housing context.  The plaintiffs, residents of Leisure Woods Estates (Leisure Woods), a manufactured housing community in Orange, filed a complaint alleging that the defendant, Leisure Woods Estates, Inc., which owns, operates, and maintains Leisure Woods, failed to properly maintain and repair the common spaces, roads, and home sites.  After a jury-waived trial, a judge of the Housing Court entered judgment in favor of plaintiffs representing seven households,[2] finding a breach of the implied warranty of habitability with respect to the condition of the roads, interference with the plaintiffs’ quiet enjoyment of the common walking trails, and separate and distinct breaches of the covenant of quiet enjoyment with respect to the conditions of the seven individual home sites.  The judge awarded injunctive relief and monetary damages for the violations, including two separate awards of three months’ rent to each household under G. L. c. 186, § 14 (§ 14), for the breaches of the covenant of quiet enjoyment, and a twenty percent rent abatement, trebled under G. L. c. 93A (c. 93A) and the Attorney General’s regulations promulgated thereunder, for the breach of the warranty of habitability.  The judge awarded each household $ 13,010.40 (a total of $ 91,072.80), plus attorney’s fees and costs.

On appeal, the defendant argues that the judge erred in awarding multiple triple rent damage awards under § 14 for separate breaches of the covenant of quiet enjoyment, in applying the warranty of habitability to potholes and accumulations of ice and snow on the roads, and in excluding the testimony of a “vital witness” for the defendant who did not arrive in court until after the close of the evidence.  We vacate one of the triple rent damages awards as duplicative, but otherwise affirm the judgment.

Background.  The defendant purchased Leisure Woods in December, 1997.  The complex contains approximately 152 manufactured home sites.  The residents own their manufactured housing units and pay the defendant a monthly rental fee for the lots on which their homes are situated.  The parties have long disputed their relative roles and responsibilities with respect to the maintenance of the manufactured home sites and common spaces.

After a three-day trial, the judge made detailed findings concerning three distinct violations by the defendant.  One violation, a breach of the covenant of quiet enjoyment, related to the residents’ inability to use the walking trails.  Both the previous owner and the defendant advertised access to the trails as a desirable amenity of tenancy at Leisure Woods, accessible to all residents.  Beginning in 2007, however, the defendant posted “no trespassing” notices at the entrances of the walking trails and installed cables across some of their openings, closing off access.  The judge awarded each household damages equal to three months’ rent based on the defendant’s interference with their quiet enjoyment of the trails.

The judge found additional breaches of the covenant of quiet enjoyment with respect to the plaintiffs’ individual home sites.  The judge found derelict conditions ranging from rotted and collapsing retaining walls, to unsafe driveways and walkways, to flooding.  Noting that all of the residents were seniors, and that many of them suffered from disabling ailments, the judge found “that the defendant’s failure to address the crumbling infrastructure of the lots has seriously interfered with the quiet enjoyment and uses of the premises and forms an independent violation of G. L. c. 186, § 14, separate and distinct from the . . . the defendant’s curtailment of the . . . walking trails.”  He awarded each household another three months’ rent as damages arising from these conditions.

Finally, the judge found that the defendant chronically failed to attend to the accumulation of ice and snow on the roads throughout Leisure Woods, that extensive potholes remained unfilled, and that the roads were often impassable.  The judge found that the defendant’s failure in this regard constituted a breach of the warranty of habitability.  He awarded each household damages in the form of a rent abatement of twenty percent for the period from March, 2008, through April, 2013, and trebled this amount under c. 93A.[3]

Discussion.  1.  Damages.  The defendant argues that the judge made errors of law in providing two awards under the triple rent clause of § 14 and in applying the implied warranty of habitability to roadways.  We address each argument in turn.

A.  Breaches of the covenant of quiet enjoyment.  The judge found two distinct violations of § 14 based on breaches of the covenant of quiet enjoyment and awarded each household two separate awards of three months’ rent.  The defendant argues that § 14 permits only one triple rent award in a single action, no matter how many distinct breaches of the covenant of quiet enjoyment are proven.

In general, an injured party may recover separate awards of damages for claims or injuries that are “factually separable and distinguishable.”  Calimlim v. Foreign Car Center, Inc., 392 Mass. 228, 236 (1984).  See Abdeljaber v. Gaddoura, 60 Mass. App. Ct. 294, 301 n.14 (2004).  The usual measure of damages for breach of the covenant of quiet enjoyment is lost rental value, that is, “the difference between the value of what the lessee should have received and the value of what he did receive.”  Darmetko v. Boston Hous. Authy., 378 Mass. 758, 761 n.4 (1979) (Darmetko).  Section 14, however, allows tenants to recover “actual and consequential damages.”  G. L. c. 186, § 14, as appearing in St. 1991, c. 481, § 22.[4]  This provision “was intended to expand the damages recoverable for breach of the covenant of quiet enjoyment,” allowing tenants to be compensated for “all reasonably foreseeable losses — personal as well as economic — within the scope of statutory recovery.”  Simon v. Solomon, 385 Mass. 91, 112-113 (1982) (Simon).  Accordingly, the plaintiffs were entitled to recover for all such losses attributable to the defendant’s interference with their use of the walking trails and its failure to repair the decaying infrastructure of their housing sites.

Frequently, “damages in rent abatement cases are not capable of precise measurement.”  Brown v. LeClair, 20 Mass. App. Ct. 976, 978 (1985).  Where this is the case, § 14 affords an alternative remedy:  three months’ rent, if greater than actual and consequential damages.  See Darmetko, supra at 762 (“Section 14 allows a minimum recovery of three months’ rent as an incentive to the pursuit of relief where the actual and consequential damages are slight or are difficult to prove”).

Of course, a party may not recover multiple awards of damages for the same injury based on different theories of recovery — such awards are said to be cumulative or duplicative.  See Calimlim v. Foreign Car Center, Inc., supra at 235-236; Abdeljaber v. Gaddoura, supra.  See, e.g., Curtis v. Surrette, 49 Mass. App. Ct. 99, 105 n.14 (2000) (tenants not entitled to recover under both § 14 and State Sanitary Code based upon same lead paint violations).  The defendant relies on Darmetko and Simon, supra, for the proposition that the two triple rent awards for its breaches of the covenant of quiet enjoyment are duplicative and inconsistent with the purpose of § 14.

In Darmetko, a tenant sued the Boston Housing Authority alleging violations of § 14 for ongoing defects in her apartment.  Darmetko, supra at 759-760.  Finding a breach of the implied warranty of habitability, a judge of the Housing Court awarded the tenant $ 739.50 to compensate for the reduction of the value of the leased premises attributable to defective floors and a leaky roof and $ 415 as consequential damages, namely water damage to her personal property.  Id. at 759.  In addition, the judge found that the leaky roof (but not the defective floors) interfered with the tenant’s quiet enjoyment of the apartment and awarded her triple rent damages under § 14 for each month during which the breach persisted, another $ 5,358.  Id. at 760.

The Supreme Judicial Court reversed the damages award on two grounds.  First, the court found no statutory or other basis for the tenant to recover cumulatively under two theories of liability for the same wrong.  Id. at 761.  In addition, the court held that  § 14 does not provide for the triple rent clause to be invoked for each month in which the violation continues.  Id. at 761-762.  To the contrary, “[w]hen the actual damages exceed three months’ rent, . . . § 14 plainly states that actual damages should be the measure of recovery.”  Id. at 762.

In Simon, 385 Mass. at 93-95, a tenant alleging repeated flooding of her basement apartment prevailed after a jury trial on claims of intentional infliction of emotional distress, breach of the covenant of quiet enjoyment, and breach of the warranty of habitability.  As in Darmetko, supra, the plaintiff was awarded damages under each theory:  $ 35,000 for reckless infliction of emotional distress, a $ 1,000 rent abatement for breach of warranty, and $ 10,000 under § 14 for interference with quiet enjoyment.  Simon, supra at 94.  On appeal, the court concluded “that the $ 10,000 verdict for interference with quiet enjoyment was, inescapably, an award of redundant damages” and vacated the award.  Id. at 108.  Following Darmetko, the court held that the triple rent award was not available because the plaintiff’s actual and consequential damages from the flooding, awarded under the other two theories, exceeded three months’ rent.  Id. at 109-110.

Arguing that the $ 10,000 award was not duplicative, the tenant in Simon speculated that the jury might have arrived at that figure based on ten separate awards of three months’ rent for poor conditions in the apartment other than the flooding.  Ibid.  The court rejected the possibility of multiple triple rent awards:  ”When three months’ rent has been assessed for one violation, the incentive function of the triple rent provision is fulfilled.  Therefore, we hold that a tenant proceeding under § 14 may collect only one such award, covering all claims that the tenant raised or reasonably could have raised in the suit.”  Id. at 110.

Darmetko and Simon do not strictly govern the case before us.  Despite the extended nature of the violations, the plaintiffs here were not awarded repeated damages for each rental period in which the breaches occurred, but rather one triple rent award for each of two factually distinct breaches.  Nor were the two triple rent awards duplicative of any recovery for actual or consequential damages.

Nonetheless, the judge’s award here is inconsistent with the language in Simon, supra, that says only one triple rent award is available in a single proceeding under § 14, no matter how many ways the landlord interferes with the tenant’s quiet enjoyment.[5]  The plaintiffs might have shown that the defendant’s interference with the quiet enjoyment of their homes and the grounds of Leisure Woods caused them damages in excess of three months’ rent, and recovered damages in an amount so shown.  However, because the plaintiffs did not or could not prove extensive actual and consequential damages, § 14 provided them minimum damages equal to three months’ rent (as well as costs and attorney’s fees) — but only one triple rent award in a single proceeding.[6]  Accordingly, on the facts of this case, we must vacate one of each plaintiff household’s two triple rent awards.

B.  Violation of c. 93A.  With regard to the roads, the judge found that “[t]he extensive pot holes and unattended accumulation of snow and ice constitute[d] a breach of the warranty of habitability.”  The judge further found that the violation was wilful and knowing:  ”[t]he defendant knew of, and recklessly disregarded the need to, repair, plow, and sand [Leisure Woods’s] roads.”  Accordingly, he trebled the plaintiffs’ damages under G. L. c. 93A.

The defendant argues that the judge erred in classifying the violation as a breach of the warranty of habitability, which “applies to significant defects in the property itself,” because “[t]he natural accumulation of snow and ice is not such a defect.”  McAllister v. Boston Hous. Authy., 429 Mass. 300, 305-306 (1999).[7]  We need not address whether the implied warranty of habitability applies to the roadways of manufactured housing communities — which, we note, are an integral part of the rented premises — because we affirm the c. 93A award of treble damages on different grounds from those on which the judge relied.  See Foley v. Lowell Sun Publishing Co., 404 Mass. 9, 11 (1989); Schwartz v. Travelers Indem. Co., 50 Mass. App. Ct. 672, 673 (2001).  Here, the defendant’s conduct violated c. 93A under the Attorney General’s manufactured housing regulations, 940 Code Mass. Regs. § 10.00 et seq. (1996).  “In appropriate cases, preference should be given to entry of judgment under the Consumer Protection Act, especially where the Attorney General’s regulations provide that certain conduct . . . is violative of G. L. c. 93A.”  Calimlim v. Foreign Car Center, Inc., 392 Mass. at 235.

“[T]he Legislature has, by G. L. c. 93A, § 2(c), delegated to the Attorney General the power to promulgate rules and regulations defining with specificity acts and practices which violate G. L. c. 93A, § 2(a).  These rules and regulations have the same force of law as those of any ‘agency’ as defined in G. L. c. 30A, § 1(2).”  Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 775 (1980).  Relevant to this case, the Attorney General’s manufactured housing regulations specifically provide that “[a]n operator shall maintain and keep in good repair all community roadways that are part of the common areas and facilities, including but not limited to ensuring that roadways are reasonably free of debris and potholes.  An operator shall provide necessary snow plowing for all community roadways” (emphasis supplied).  940 Code Mass. Regs. § 10.05(9) (1996).

The judge found “overwhelming” evidence that the roads at Leisure Woods were significantly damaged by potholes and broken pavement.  The residents “testified credibly about the defendant’s inadequate removal of snow and treatment for ice on the streets.”  Thus, the same facts that the judge determined violated the warranty of habitability, which have not been shown to be erroneous, also violated the Attorney General’s manufactured housing regulations.  As the failure to comply with the regulations amounts to an unfair or deceptive act or practice in violation of c. 93A, see 940 Code Mass. Regs. § 10.02(3) (1996), and the judge found the defendant’s violations to be wilful and knowing, the judge did not err or abuse his discretion in awarding treble damages.[8]

2.  Excluded witness.  The defendant contends that excluding the testimony of its president, Glenn Gidley, was “extremely prejudicial” and an abuse of discretion.  We disagree.

Gidley, to whom the defendant refers as a “vital witness,” arrived inexcusably late on the day he was scheduled to testify — the last day of the trial.  The second day of trial concluded with the fourth defense witness, the defendant’s on-site manager (who had been present in court on the first day of trial as well), on the witness stand.  The defense expected to call two more witnesses the next day, “Spanky” from Spanky’s Tree Service and Gidley.  The trial reconvened the next day at 11:05 A.M. and the manager’s direct testimony continued.  Her testimony concluded after about an hour, but the next witness, Spanky, had in defense counsel’s words “opted not to show,” and Gidley, who “was supposed to arrive about 12:30,” had not yet appeared.

The judge attempted to accommodate the defendant by granting a recess until 12:30 P.M.  When the recess ended at 12:37 P.M. and Gidley still was not present, the judge attended to a few procedural matters to allow for more time.  Finally, the judge instructed plaintiffs’ counsel to begin her closing argument.  Though Gidley arrived during plaintiffs’ counsel’s summation, the judge declined the defendant’s request to reopen the evidence over plaintiffs’ counsel’s objection that it would be unfair to allow Gidley to testify after her argument.

The judge acted within his discretion in declining to allow the witness to testify after the evidence had closed.  “The trial judge is in the best position to balance the competing claims of fairness to the litigants and the case-flow efficiency presented by such a motion.”  Scannell v. Ed. Ferreirinha & Irmao, Lda., 401 Mass. 155, 158 (1987).  The defendant was responsible for getting all of its witnesses to court in a timely manner, and it would not have been a hardship for Gidley to arrive at 11:00 A.M., when court was scheduled to convene that morning.  The judge was more than fair and reasonable, granting the defendant ample time and opportunity to allow for Gidley’s late arrival.  The judge’s action was “not so much a punitive sanction as it was the logical and fair resolution of a case where a party had failed properly to protect its interests.”  Id. at 160.  We discern no abuse of discretion.  See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).[9]

Conclusion.  With respect to each of the seven plaintiff households, one award of three months’ rent ($ 1,026; $ 7,182 total) under § 14 is vacated.  The judgment is affirmed in all other respects.

The plaintiffs have requested and are entitled to an award of appellate attorney’s fees under § 14 and c. 93A.  See Yorke Mgmt. v. Castro, 406 Mass. 17, 19 (1989); Homesavers Council of Greenfield Gardens, Inc. v. Sanchez, 70 Mass. App. Ct. 453, 461-462 (2007).  In accordance with the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the plaintiffs may file documentation in support of their request for fees and costs within fourteen days of the date of the rescript, and the defendant shall have fourteen days thereafter to respond.[10]

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-11904

COMMONWEALTH  vs.  DAVID A. COGGESHALL.

Plymouth.     December 7, 2015. – February 24, 2016.

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

Reckless Endangerment of a Child.  Probable Cause.  Practice, Criminal, Complaint, State of mind.  Evidence, State of mind.

Complaint received and sworn to in the Plymouth Division of the District Court Department on August 20, 2013.

A motion to dismiss was heard by Kathryn E. Hand, J.

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

Vanessa L. Madge, Assistant District Attorney, for the Commonwealth.

Tara B. Ganguly for the defendant.

Chauncey B. Wood, J. Anthony Downs, Todd Marabella, & Kara Harrington, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

     SPINA, J.  In this case we are asked to decide whether the words “wantonly or recklessly” in G. L. c. 265, § 13L, the statute proscribing reckless endangerment of a child, require proof of a defendant’s subjective state of mind.[1]  On August 20, 2013, a two-count complaint issued against the defendant from the Plymouth Division of the District Court Department, accusing him of walking on railroad tracks, in violation of G. L. c. 160, § 218, and reckless endangerment of a child by walking on railroad tracks with a child, in violation of G. L. c. 265, § 13L.  The defendant filed a pretrial motion to dismiss the count charging him with reckless endangerment.  A judge in the District Court ruled that the Commonwealth was required to establish that the defendant actually was aware of the substantial risk of serious bodily injury to which he exposed his child, and that the evidence offered in support of the application for the criminal complaint failed to demonstrate probable cause to believe that the defendant, who was heavily intoxicated at the relevant time, had the mental state required to support the charge.  The judge dismissed the count of reckless endangerment.

On appeal the Commonwealth argues that § 13L does not require proof of a defendant’s subjective state of mind, but that, even if it did, sufficient evidence was presented in the application for the criminal complaint to establish probable cause to believe that the defendant had the requisite mental state.  We transferred the appeal to this court on our own motion, and now hold that the judge correctly stated the law, but that the order of dismissal must be vacated because the evidence presented met the threshold standard of probable cause.[2]

1.  Background.  A police report was attached to the application for the criminal complaint.  We summarize the facts set forth in that report.  See Commonwealth v. Bell, 83 Mass. App. Ct. 61, 62 (2013) (motion to dismiss criminal complaint for lack of probable cause decided on four corners of complaint application, without evidentiary hearing).

On August 19, 2013, at about 2:15 P.M., two Halifax police officers were sent to investigate a report of two individuals walking on the Massachusetts Bay Transportation Authority (MBTA) train tracks.  They saw the defendant and his eleven year old son walking along the train tracks.  The MBTA was notified, and it slowed the scheduled train to allow the police time to get the defendant and his son off the tracks.

The defendant was holding his son’s hand for balance.  The boy was carrying two plastic bags containing personal effects.  The boy made several efforts to keep his father from falling, but at one point the defendant fell on his back and landed between the tracks.  The officers noted that the defendant was visibly intoxicated.  A heavy odor of alcohol was detected on his breath.  When asked why they were on the tracks, the defendant said that he always walks on the tracks, and that he was “fucked up.”  He also said he had had a few beers.  The officers escorted the defendant and his son off the tracks.  At no time did the defendant display an ability to walk on his own.

2.  Discussion.  The Commonwealth contends that the police report attached to the application for the criminal complaint alleged sufficient facts to support the crime of reckless endangerment of a child.  Before issuing a complaint a judicial officer must find “sufficient evidence to establish the identity of the accused . . . and probable cause to arrest him” for the offense being charged.  Commonwealth v. Lester L., 445 Mass. 250, 255-256 (2005), quoting Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982).  See Mass. R. Crim. P. 3 (g) (2), as appearing in 442 Mass. 1502 (2004).

“Probable cause [to arrest] exists where ‘the facts and circumstances . . . [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that’ an offense has been . . . committed.”  Commonwealth v. Hason, 387 Mass. 169, 174 (1982), quoting Brinegar v. United States, 338 U.S. 160, 175-176 (1949).  “Probable cause requires more than mere suspicion,” but it is considerably less demanding than proof beyond a reasonable doubt.  Hason, supra.  When applying this standard we are guided by the “factual and practical considerations of everyday life on which reasonably prudent [people], not legal technicians, act.”  Id., quoting Brinegar, supra at 175.

The application for the complaint must establish probable cause as to each element of the offense.  Commonwealth v. Hanright, 466 Mass. 303, 312 (2013), quoting Commonwealth v. Moran, 453 Mass. 880, 884 (2009).  Our review of a judge’s determination of probable cause is de novo.  Commonwealth v. Long, 454 Mass. 542, 555 (2009).

The elements of § 13L are (1) a child under age eighteen, (2) a substantial risk of serious bodily injury or sexual abuse, and (3) the defendant wantonly or recklessly (i) engaged in conduct that created the substantial risk, or (ii) failed to take reasonable steps to alleviate that risk where a duty to act exists.  Commonwealth v. Rodriquez, 462 Mass. 415, 422 (2012).  There is no dispute that the defendant was adequately identified, or that his son was under age eighteen at the time.  The disputed issues are the sufficiency of the evidence of a substantial risk of serious bodily injury, and the sufficiency of the evidence that the defendant wantonly or recklessly engaged in conduct that created such substantial risk.

We first address the question of substantial risk of serious bodily injury.  The defendant contends that the risk of serious bodily injury to the defendant’s son was not substantial, or even likely, but only a possibility.  He concedes that he did not make this argument below.  However, he contends that an appellate court “‘may consider any ground apparent on the record that supports the result reached in the lower court.’ . . .  Therefore, ‘[a] prevailing party is . . . entitled to argue on appeal that the judge was right for the wrong reason, even relying on a principle of law not argued below’” (citations omitted).  Commonwealth v. Levesque, 436 Mass. 443, 455 (2002).

“[A] statute 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” (citation omitted).  Commonwealth v. Smith, 431 Mass. 417, 421 (2000).  Section 13L does not define the words “substantial” or “risk,” or the term “substantial risk.”  “Substantial” is defined as “real,” “not imaginary,” “sturdy,” or “solid.”  See Webster’s Third New International Dictionary, 2280 (1961).  “Risk” is defined as “the possibility of loss [or] injury,” and “danger, peril [or] threat.”  See id. at 1961.  The term “substantial risk” can be understood to mean a “real or strong possibility.”  We have said that in the context of § 13L a “substantial risk” means “a good deal more than a possibility.”  Commonwealth v. Hendricks, 452 Mass. 97, 103 (2008).  The risk also must be considered in conjunction with a particular degree of harm, namely “serious bodily injury.”  Section 13L explicates that “[t]he risk must be of such nature and degree that disregard of the risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”  Disregard of this risk requires a showing that is “substantially more than negligence.”  Hendricks, supra.

Here, the evidence shows that the defendant was incapable of walking by himself, and that he was relying on his son to help him walk along the tracks.  If he were walking on the tracks alone, his course of conduct would have been illegal, a matter that the defendant does not dispute.  Indeed, he does not challenge the sufficiency of the evidence offered in support of the count in the complaint that alleges a violation of G. L. c. 160, § 218, the statute proscribing walking on railroad tracks.  By enlisting the aid of his son to violate this law, he encouraged the boy to violate the same law.  It is well known that “[a] railroad track is a place of danger, and one, unnecessarily and voluntarily going upon it or so near to it as to be in a position of peril, must take active measures of precaution.”  Joyce v. New York, New Haven & Hartford R.R. Co., 301 Mass. 361, 365 (1938).  This alone constitutes a substantial risk of serious bodily injury, and a gross deviation from the standard of conduct that a reasonable person would observe in the situation.  Matters did not improve.  At one point the defendant fell between the tracks.  Not only did he expose his son to the danger of walking alongside the tracks, but had a train approached while he was lying between the tracks, it is reasonably likely that the boy would have tried valiantly and desperately to remove his father to safety, thereby exacerbating the risk to his own safety and life.  We conclude that the evidence supports probable cause to believe that the defendant exposed his son to a risk that no reasonable person would have permitted, namely, a substantial risk of serious personal injury.

The next issue is whether § 13L requires proof of an accused’s subjective state of mind.  The Commonwealth argues that the words “wantonly or recklessly” in § 13L take on their common-law meaning and do not require proof that the defendant intended the risk or was even subjectively aware of the risk.  The Commonwealth relies on Levesque, 436 Mass. at 451-452, where this court said that “wanton or reckless” conduct, at least with respect to the common-law crime of manslaughter, is “intentional conduct . . . involv[ing] a high degree of likelihood that substantial harm will result to another,” and “the risk [of injury contemplated by the statute] must be known or reasonably apparent, and the harm must be a probable consequence of the defendant’s election to run that risk or of his failure reasonably to recognize it. . . .  Under Massachusetts law, recklessness has an objective component as well as a subjective component.  A defendant can be convicted . . . even if he was ‘so stupid [or] so heedless . . . that in fact he did not realize the grave danger . . . if an ordinary normal man under the same circumstances would have realized the gravity of the danger” (emphases added; citations omitted).  At common law a defendant need not be aware of the risk of injury, but the Commonwealth could show either that he was aware of the risk of injury, or that he reasonably ought to have been aware of the risk.  That is, the Commonwealth could satisfy its proof by showing that an objectively reasonable person would have been aware of the risk.  The Commonwealth also relies on Commonwealth v. Figueroa, 83 Mass. App. Ct. 251, 259 (2013), where the Appeals Court applied the common-law meaning of “wanton or reckless” in construing § 13L.

Section 13L differs from the common-law meaning of “wanton or reckless.”  Section 13L is a crime created by the Legislature, and although the Legislature used the words “wanton or reckless,” it expressly limited such conduct to circumstances where an accused “is aware of and consciously disregards” the risk.  G. L. c. 265, § 13L.  In these circumstances we ascertain a clearly expressed legislative intent to depart from the common-law meaning of the words “wanton or reckless.”  See Commonwealth v. Burke, 392 Mass. 688, 690 (1984), quoting Commonwealth v. Knapp, 9 Pick. 495, 514 (1830).  The judge below correctly recognized that § 13L requires proof of the defendant’s subjective state of mind with respect to the risk involved.  That is, he must be shown to have been actually aware of the risk.  Unlike the common-law meaning of “wanton or reckless,” the Commonwealth does not have the option of proving a defendant’s objective or subjective state of mind.

The Commonwealth next argues that the evidence was sufficient to establish probable cause to believe that the defendant actually was aware of the risk.  It contends that the defendant’s statement that he “always walked on the tracks” is evidence that he knew where he was, that he knew he was with his son because they were holding hands, and that he knew the youth was under age eighteen because the youth was his son.  Moreover, the defendant’s statement that he was “fucked up” and had consumed a few beers is evidence that he was aware of his own condition and the cause of that condition.  From this evidence, as well as the defendant’s stated familiarity with railroad tracks and the common knowledge that railroad tracks are dangerous places to be walking, the Commonwealth contends that this evidence establishes probable cause that the defendant “wantonly or recklessly” engaged in conduct that created a substantial risk of serious bodily injury to his eleven year old son within the meaning of § 13L.  Specifically, the Commonwealth contends that there is probable cause to believe that the defendant was “aware of and consciously disregard[ed] a substantial and unjustifiable risk that his acts . . . would result in serious bodily injury . . . to a child.”  G. L. c. 265, § 13L.  We agree.  The probable cause requirement, which is not particularly burdensome, was satisfied in this case.  We express no view as to the strength of the evidence at trial.

The order dismissing count two of the complaint is vacated, and the case is remanded for trial.

So ordered.

Full-text Opinions

      SULLIVAN, J. (concurring in the result).  The motion judge denied the special motion to dismiss the plaintiffs’ defamation claim against the Steward defendants[15] because, in her judgment, the defendants failed to meet their burden to show that the count for defamation was based solelyon petitioning activity.  See Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167 (1998) (Duracraft) (moving party must make a threshold showing that the complaint is based on petitioning activity “alone”).  Because the judge did not make a clear error of law or judgment in declining to dismiss the defamation claim with respect to the e-mail, I agree that the special motion to dismiss must be denied as to the e-mail.  I do not agree that the statements made to the Boston Globe constituted solely petitioning activity.  However, based on the “mirror image” doctrine, I also must agree that the statements to the Boston Globe are petitioning activity.  I write separately to emphasize material differences in the reasons for which I arrive at these conclusions, reasons which impact both the standard of review of decisions on “anti-SLAPP” motions and the scope of protection afforded litigants in the Commonwealth under the First Amendment to the United States Constitution.

Standard of review.  A threshold question is the proper application of the standard of review.  We review the motion judge’s decision for an abuse of discretion.  See Kobrin v. Gastfriend, 443 Mass. 327, 330-331 (2005) (Kobrin); Marabello v. Boston Bark Corp., 463 Mass. 394, 397 (2012) (Marabello).^[16]  Whether the appellate courts have functionally conducted (or should conduct) a “fresh and independent evaluation” of anti-SLAPP motions to dismiss, albeit under the umbrella of the abuse of discretion standard, is a different question, one left largely unanswered by existing precedent.  See ante at    .  To be sure, an appellate court reviews errors of law de novo, and an error of law is an abuse of discretion.  See Kobrin, supra at 330-331; Marabello, supra at 397.  With some frequency the existence of petitioning activity has been decided as a matter of law on the basis of the complaint.^[17]  See Fabre v. Walton, 436 Mass. 517, 522-523 (2002); Office One, Inc. v. Lopez, 437 Mass. 113, 122-123 (2002) (Office One, Inc.); Wenger v. Aceto, 451 Mass. 1, 5 (2008) (Wenger); North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 864-865 (2009) (Corcoran).  Where the pertinent allegations suggest that there may be both petitioning activity and nonpetitioning activity, the motion must be denied.  See Garabedian v. Westland, 59 Mass. App. Ct. 427, 432 (2003); Ehrlich v. Stern, 74 Mass. App. Ct. 531, 536-537 (2009) (Ehrlich); Burley v. Comets Community Youth Center, Inc., 75 Mass. App. Ct. 818, 821-822 (2009) (Burley).

In this case, we also have the moving parties’ affidavits.  How must those affidavits be treated?  The answer lies in the hornbook principle, as applicable in anti-SLAPP suits as in other areas of the law, that the judge may look to the entire record and is not required to credit a defendant’s affidavit.  See Cadle Co. v. Schlichtmann, 448 Mass. 242, 250-251 (2007) (Cadle).  In the context of an anti-SLAPP motion, this means that the judge is not required to accept at face value either party’s “self-serving characterization” of conduct as petitioning or nonpetitioning activity.  See ibid. (holding that the judge was permitted to determine as a factual matter that the defendant had failed to meet his burden to show that the purpose in setting up a litigation Web site was petitioning rather than commercial).^[18]  In my view, this determination on appeal falls under the more deferential standard of review for abuse of discretion, id. at 250, that is, whether the motion judge made “a clear error of judgment in weighing the factors relevant to the decision, . . . such that the decision [fell] outside the range of reasonable alternatives.”  L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation and citation omitted).

The defamation claim.  Turning to the defamation claim, the complaint alleges and Walczak’s affidavit confirms that he sent an e-mail to all Carney Hospital employees.  The e-mail contained a stern warning about patient care, hospital standards, and his reasons for the mass termination.  There was no allegation or averment in this or any other affidavit that the e-mail was provided to the regulators, or that the regulators were told about it.  The judge concluded that the Steward defendants “have not shown how the statements in the email, communicated only to Carney Hospital employees, were intended to influence, inform, or reach, directly or indirectly, governmental agencies. . . .  The statements cannot be considered petitioning activity merely because they communicated to the Hospital staff what remedial action the Hospital was taking as a response to a regulatory agency investigation.”

The judge did not abuse her discretion.  As a matter of law, the hospital’sdecision to terminate the employment of all employees in the adolescent psychiatric unit (unit) was conduct, not speech, and is not entitled to the protection of the anti-SLAPP statute.  See Marabello, 463 Mass. at 398-400.  The fact that the hospital explained its actions to its employees does not transform conduct into petitioning activity.  A “tangential statement[]” that “concerns a topic that has attracted governmental attention . . . does not give that statement the character contemplated by the statute.”  Global NAPS, Inc. v. Verizon New England, Inc., 63 Mass. App. Ct. 600, 605, 607 (2005).  That the e-mail may have been part of an over-all strategy to address the conditions in the unit and thereby avoid the wrath of the regulators is not enough.  “[A]n over-broad construction of the anti-SLAPP statute would compromise the nonmoving party’s right to petition — the same right the statute was enacted to protect.”  Kobrin, 443 Mass. at 335.[19]

It is not clear from the judge’s decision whether she did not credit Walczak’s affidavit or whether, even if she accepted it at face value, she found the affidavit was insufficient to show that petitioning activity was the sole basis for the e-mail, or both.  See Wenger, 451 Mass. at 5, quoting from Duracraft, 427 Mass. at 167-168 (movant must show that the claim “[is] based on ‘petitioning activities alone and ha[s] no substantial basis other than or in addition to the petitioning activities’”).  The judge’s decision is properly sustained on either basis.

First, for the reasons stated above, the judge did not abuse her discretion to the extent that she declined to credit Walczak’s affidavit.  See Cadle, 448 Mass. at 250.  The judge considered the affidavit[20] and found it unpersuasive in light of the complete absence of any evidence that the e-mail was sent to the regulators.  In this factual context, the judge did not engage in a clear error in judgment in concluding that the affidavit, crafted after the fact for purposes of supporting the special motion, failed to sustain the defendants’ burden to show that Walczak engaged in petitioning activity.  The statements in the affidavit concerning the defendants’ motives and beliefs are not relevant.  “We care not whether a defendant seeking dismissal under the anti-SLAPP statute is ‘sincere’ in his or her statements; rather, our only concern, as required by the statute, is that the person be truly ‘petitioning’ the government in the constitutional sense.”  Kobrin, 443 Mass. at 338 n.14.

Second, even if the judge were to give weight to Walczak’s statement that he hoped to influence the regulators (which she clearly did not in view of the lack of any indication that the regulators knew of the e-mail’s existence), or to simply accept the statements at face value, Walczak also stated that he “sent this email . . . to communicate to the hospital employees what was happening.”[21]  On its face, the e-mail served patient care and labor relations purposes separate and independent of any claimed attempt to influence regulators.  The anti-SLAPP statute protects a narrow range of conduct based solely and exclusively on petitioning activity.  See Ehrlich, 74 Mass. App. Ct. at 536-537.  See also Duracraft, 427 Mass. at 167-168.  Even if one were to accept the defendants’ view that the e-mail must be viewed as petitioning activity as a matter of law (which both the majority and I do not), the e-mail also served nonpetitioning purposes.  Thus, the plaintiffs’ complaint “[did] not concern solely the defendants’ pursuit of legal rights.”  Ayasli v. Armstrong, 56 Mass. App. Ct. 740, 748 (2002), quoting from Bell v. Mazza, 394 Mass. 176, 183 (1985).

For this reason above all others, the judge also correctly ruled as a matter of law that the motion should be denied.  It bears remembering that the “sole purpose” doctrine came about as a judicial gloss — a gloss designed to save the statute from constitutional infirmity.^[22]  In Duracraft, 427 Mass. at 167, the Supreme Judicial Court “adopt[ed] a construction of [the words] ‘based on’ that would exclude motions brought against meritorious claims with a substantial basis other than or in addition to the petitioning activities implicated” (emphasis added).  By limiting anti-SLAPP motions to those cases where the only basis for the plaintiffs’ complaint is the defendants’ nonfrivolous petitioning activity, the court resolved the “conundrum [that had] troubled judges and bedeviled the statute’s application” — that is, how to protect the defendants’ right to petition the government, provided the petition is not a sham, while at the same time also protecting an adverse party’s right to petition.  Id. at 166-167.  See Kobrin, 443 Mass. at 335.

The statements attributed to Walczak in the newspaper articles suffer from precisely the same defects as the e-mail.  The judge found the statements to the Boston Globe to be tangential, “particularly when the defendants already were in communication with the agencies.”  In addition, the Walczak affidavit states that his comments to the Globe were an appeal to the public, an understandable purpose in light of the potential impact of the allegations on the confidence of patients, donors, insurers, and business partners, but still a nonpetitioning purpose.^[23]  On its face, the Walczak affidavit demonstrates that the statements to the press encompass substantial nonpetitioning purposes.[24]

It matters not that the statements to the press (like the e-mail) may have been part of an over-all strategic mission to influence regulators.  See ante at    .  Nor does it matter, for First Amendment purposes, that a single act — the statements to the Globe — may arguably serve both petitioning and nonpetitioning purposes.  If the conduct complained of serves a substantial nonpetitioning purpose (such as persuading patients, future patients, donors, future donors, insurers, and the public at large of the quality of patient care), the complaint must go forward.  Otherwise, the scope of the anti-SLAPP statute would expand exponentially to include protected First Amendment petitioning activity.  The result would be an interpretation of the statute that renders it constitutionally infirm.  See Duracraft, 427 Mass. at 166-167; Kobrin, 443 Mass. at 335.

However, because I agree with the majority that the statements in the press, made in response to the Massachusetts Nurses’ Association’s comments on the terminations, were protected by the mirror image doctrine, I also must agree, based on our existing precedent, that the statements to the Globe acquired the status of protected petitioning activity.  See Wynne v. Creigle, 63 Mass. App. Ct. 246 (2005).  Contrast Cadle, 448 Mass. at 251 (“Here, nothing in the record would support a finding that the challenged statements made by Schlichtmann were either a response to statements that Cadle had made to the press or repetitions of statements initially made in a governmental proceeding”).  Other than the brief reference in Cadle, the mirror image doctrine has not been considered in any depth by the Supreme Judicial Court, and its parameters have not been much explored by this court.  Whatever those parameters may be, I concur with the majority that the fact that the hospital was responding to (not initiating) a press inquiry, and that the response essentially mirrored the statements in the report prepared by Attorney Scott Harshbarger, compels the conclusion that this much of the claim is petitioning activity under existing precedent.

Which leads to the final conundrum — the ultimate disposition of the defamation claim.  In Wenger, 451 Mass. at 9, the Supreme Judicial Court, without discussion, parsed a complaint, count by count, dismissing some counts under the anti-SLAPP statute and preserving others.  This approach has borne some criticism, on the theory that parsing claims undermines the “sole purpose” doctrine and results in expensive and complicated litigation contrary to the purpose of the anti-SLAPP statute.  See One Claim at a Time:  The Inherent Problems with Piecemeal Application of the anti-SLAPP Statute, Vol. 11-n1 Mass. Bar Assn. Section Rev. (2009).  Wenger remains good law, however, and we follow it.[25]

This case is different in that it involves a single count alleging two separate acts of defamation.  One of our cases since Wenger has explicitly stated that “the anti-SLAPP inquiry produces an all or nothing result as to each count the complaint contains.  Either the count survives the inquiry or it does not, and the statute does not create a process of parsing counts to segregate components from those that cannot.”  Ehrlich, 74 Mass. App. Ct. at 536, and cases cited.  Accord Burley, 75 Mass. App. Ct. at 821.  The majority holds that the statements to the Globe could have as easily been pleaded as two counts rather than one, and that it would elevate form over substance to permit the count based on the statements to the Globe to go forward, thus distinguishing Ehrlich.  Whether Wenger governs in this circumstance as well, or whether Ehrlich is the correct statement of the law turns, as does much of this case, on further clarification of the reach of the “sole purpose” doctrine first articulated in Duracraft.

Accordingly, I concur in the result solely because I agree with those portions of the majority opinion that hold that the e-mail was not petitioning activityand the statements to the Boston Globe were protected by the mirror image doctrine under existing precedent.

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-1796                                       Appeals Court

COMMONWEALTH  vs.  HEATHER DRAGOTTA

(and one companion case[1]).

No. 14-P-1796.

Essex.     January 12, 2016. – February 25, 2016.

Present:  Kafker, C.J., Cohen, & Blake, JJ.

Assault and Battery.  Wanton or Reckless Conduct.  Parent and Child, Duty to prevent harm.  Child Abuse.  Practice, Criminal, Hearsay, Witness.  Evidence, Expert opinion, Hearsay.  Witness, Expert.

Indictments found and returned in the Superior Court Department on October 1, 2010.

The cases were heard by Richard E. Welch, III, J.

Jacob B. Stone for Steven Amos.

Patrick Levin, Committee for Public Counsel Services, for Heather Dragotta.
Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.

KAFKER, C.J.  After a joint jury-waived trial in the Superior Court, defendant Heather Dragotta was convicted of wantonly or recklessly permitting another to commit an assault and battery upon her infant daughter causing bodily injury (head injury), and defendant Steven Amos was convicted on three indictments charging assault and battery upon the same child causing bodily injury (two rib fractures, head injury, and arm fracture).[2]  On appeal, Dragotta and Amos both claim that the evidence was insufficient to sustain their convictions, and Amos adds that the expert testimony exceeded the permitted scope of such evidence.

Sufficiency of the evidence.  Viewing the evidence in the light most favorable to the Commonwealth, the judge was warranted in finding the following.  E.g., Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).

The victim was born on April 27, 2010, without any complications.  Dragotta is the victim’s mother.  Amos was Dragotta’s boyfriend but not the father of the child.  On the evening of June 3, 2010, Dragotta and Amos brought the five and one-half week old infant to the Lawrence General Hospital emergency room because she was not using her right arm and cried when it was touched.  The X-rays taken at the hospital showed that not only was the victim’s right arm fractured, but that her left arm was bowing.  The fracture of the right arm was a displaced transverse fracture, meaning that the fracture went entirely across the bone and the two ends were slightly offset.  These findings prompted the hospital to file a report of abuse with the Department of Children and Families (DCF), pursuant to G. L. c. 119, § 51A (51A report).  The victim was transferred to Boston Children’s Hospital, and Dr. Celeste Wilson, the medical director of the child protective unit, was sought for consultation.

The next day, Wilson examined the victim and spoke to Dragotta and Amos about the cause of the injuries.  Dragotta told Wilson that she returned home on June 3 with the victim after visiting her relatives in New Hampshire, and she gave the baby to Amos while she went into the kitchen.  Shortly thereafter, Dragotta noticed the victim was not using her right arm.

Because of the unexplained injury to the victim’s arm, Wilson ordered a full skeletal survey (X-rays), a computerized tomography scan (CT scan), and magnetic resonance imaging (MRI) of the victim’s head.  The X-rays, as the Commonwealth’s expert, Dr. Paul Kleinman,[3] testified, revealed seven rib fractures near the spine, six rib fractures on the side and the front of the ribs, one fracture of the right leg, five fractures of the left leg, and fractures of the right and left arms.  He testified that rib fractures indicated the child’s chest had been compressed with a force equivalent to that which occurs in a motor vehicle accident.  Kleinman explained that rib fractures are “very very uncommon in infants,” in part because a baby’s rib cage is flexible; rather, they are “overwhelmingly seen in children who have been victims of abuse.”  The location and nature of the leg fractures were also very uncommon and would have occurred from significant twisting and pulling forces that are delivered to that extremity.  According to Kleinman, the leg fractures were highly specific for abuse.  While the right arm fracture was the single injury that an active child might incur, neither that fracture nor the fracture to the left arm was typical for a five and one-half week old infant who is not mobile.

Kleinman described the fractures as being of various ages, with the arm fracture being the most recent and the two fractures to the lateral ribs being more recent than the other fractures, having likely been incurred somewhere between seven days and two to four weeks earlier.[4]  In Kleinman’s opinion, all of the victim’s fractures were caused by inflicted injury.

Wilson reviewed the test conducted on the victim’s head and testified that there was a subdural hematoma or bleeding on the brain.  Wilson gave an opinion that the injury was the result of inflicted trauma from an acceleration or deceleration motion to the head.  Two theories account for such an injury, either the head goes back and forth in such a motion as to create a whiplash or banging of the brain against the skull, or the head may accelerate into a solid object causing the skull to stop when it strikes the object while the brain continues going forward.

Wilson further opined that the victim would have been in pain when the fractures were inflicted, and she agreed that the arm injury was “acute.”  Regarding the rib and leg fractures, the victim would have been “fretful,” “irritable,” or “fussy” when she was lifted or raised by others, or when her extremities moved.  Based on the “entire picture,” Wilson formed the opinion and testified that someone had inflicted injuries on this child on more than one occasion.

Dragotta and Amos were first asked about these injuries on Friday afternoon, June 4, 2010, by Detective Daniel Cronin and by Amy Silverio, the DCF worker assigned to the case.  Interviewed alone, Dragotta explained that her infant daughter’s health was unremarkable until she was about two weeks old, when she developed some gassiness and could be fussy at times.  She told her pediatrician about this at the well-being visit on May 11, 2010, and according to Dragotta, he recommended gently moving the infant’s legs in a bicycling motion to relieve the gas and demonstrated the maneuver for her.  Dragotta showed Amos the maneuver when she got home.

When asked how she thought the victim could have sustained her injuries, Dragotta became tearful and admitted that a maneuver Amos used to help the victim relieve gas could have broken her ribs.  Dragotta described the maneuver as one in which Amos would take the victim’s “legs and push them towards her stomach and push down to relieve some gas or stool.”  Dragotta said Amos did this maneuver “pretty often” and “consistently for about one week.”  She acknowledged that the victim would cry when Amos did this.  On one occasion, the victim made a particularly disturbing sound that prompted Dragotta to tell Amos not to do it anymore; she believed he heeded her request.

Dragotta thought the injury to the victim’s head and arm were new.  She suspected that her sister, who had briefly watched the victim during her visit to New Hampshire on June 3, may have done something.  Dragotta told Silverio and Cronin that her sister suffered from depression and had a “couple OUI’s [driving under the influence of alcohol].”  Dragotta was informed that DCF would be taking custody of the victim and was visibly upset when she left the interview room and passed Amos.

Upon entering the interview room, Amos blurted out, “If I tell you I hurt her, can she get her baby back?”  Cronin admonished him not to lie to protect someone else.  Amos immediately volunteered that he could explain the rib fractures because he was “positive” he had broken her ribs.  He demonstrated how he put his hands behind the victim’s knees and pushed forcefully up and into the victim’s abdomen.  He said this technique was something he had developed on his own; he had not been shown how to do it.  He acknowledged using a considerable amount of force and that he “pushed hard all the time.”

When Amos did this, he said the victim would grunt, cry, and defecate.  According to Amos, Dragotta had seen him do it three or four times.  He said that the maneuver “relieved” the victim for two to three hours and that he was doing it to help Dragotta, who was stressed “paper thin.”  He admitted being concerned that he was hurting the victim and that he was pushing too hard.

About a week before the interview, around May 28, Amos thought the technique was no longer working because nothing was coming out of the victim’s buttocks.  He stopped doing the technique because he was afraid he was causing damage to the victim’s internal organs and her ability to go to the bathroom on her own.

Amos said he could also explain the head injury.  During that Memorial Day weekend, about the time he stopped doing the knee-to-stomach maneuver, Amos used the victim “like a guitar,” dipping and spinning her in the living room while he listened to music and Dragotta took a shower.  He said he had her in one arm with a hand on her buttocks and two fingers around her neck until he made a forward motion and removed his two fingers from her neck leaving her head unsupported and her head came crashing down on his collarbone.  The victim was still too young to be able to hold her head up, a fact Amos must have known as her caregiver.  The victim cried for a couple of minutes and he saw bruising on her ear.

Although Amos initially denied having knowledge of what could have caused the injury to the victim’s right arm (which prompted the visit to the emergency room), he admitted at the end of the interview that he may have grabbed her arm too tightly when she was lying on his chest on the evening of June 3, 2010.

The following Monday, June 7, 2010, Silverio and Cronin interviewed Dragotta again, at her home.  Her mother, Kim Dragotta, was with her.  Dragotta admitted seeing the bruised ear during Memorial Day weekend and some bleeding in the victim’s eye.[5]  At the time, Dragotta asked Amos about it, and he told her about the infant’s head striking his collarbone while he was dancing with her.  Dragotta recognized the inappropriateness of Amos’s behavior and acknowledged to Silverio and Cronin that Amos had no experience with infants.

Discussion.  1.  Sufficiency of the evidence.  Dragotta argues on appeal that the evidence was insufficient to support her conviction of wantonly or recklessly permitting Amos to commit an assault and battery upon her child causing a bodily injury, namely, the head injury.[6] “Wanton or reckless conduct may occur by act or omission where there is a duty to act and the failure to so act provides a ‘high degree of likelihood that substantial harm will result to another.’”  Commonwealth v. Robinson, 74 Mass. App. Ct. 752, 759 (2009), quoting from Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).  See, e.g., Commonwealth v. Pugh, 462 Mass. 482, 496-497 (2012).  The wanton or reckless conduct here was Dragotta’s continuing to allow Amos to care for the infant knowing that he did not know how to do so, that he had not followed instructions in the past, and that he had repeatedly and forcibly mishandled the child in such a manner as to cause her substantial harm.

The evidence that we consider under the Latimore[7] standard established that Dragotta regularly observed Amos push the five and one-half week old victim’s knees into her chest with such force that she defecated.  This was not at all like the gentle bicycling maneuver that Dragotta had been taught, and which she had explained to Amos.  The force she saw applied was described by the expert as similar to that typically associated with a motor vehicle collision.  The force here resulted in multiple fractures of the ribs and fractures of the right and left leg.  In addition, the fractures were in various stages of healing confirming that this technique had been used on multiple occasions.  These fractures would have caused the child to be irritable and fussy, and while that alone would not be sufficient to cause a parent concern, in combination with having observed Amos’s maneuver, it should have plainly alerted Dragotta to the high degree of likelihood that the victim was being injured by Amos.

Finally, Dragotta’s tearful response during her interview with Silverio and Cronin, when she revealed that Amos’s technique for relieving gas may have broken the victim’s ribs, is direct proof that she knew the maneuver exposed the victim to bodily injury.  Even if the judge credited Dragotta’s testimony that she eventually told Amos to stop using this much force to compel the infant to pass gas and defecate, she nonetheless continued to allow him to provide unsupervised care for the child despite her knowledge that he obviously did not know how to care for the child safely, as later confirmed by the child’s subsequent, substantial injuries, including the head injury for which Dragotta was held responsible for recklessly permitting.

In these circumstances, the judge could find that Dragotta knew or should have known that there was a substantial risk that Amos would injure the child if she remained in his unsupervised care.  See Commonwealth v. Garcia, 47 Mass. App. Ct. 419, 422 (1999) (even if there were no direct evidence that parents of thirty-three day old infant were aware of multiple rib, clavicle, and leg fractures, and a skull fracture, evidence of unexplained bruises and recognition that infant was in pain was sufficient circumstantial proof to conclude that “an ordinary person in the same circumstances would have realized the gravity of the danger”).  See also Commonwealth v. Roderiques, 462 Mass. 415, 427 (2012) (evidence showed that defendant knew assaults were occurring but wantonly and recklessly failed to intervene).

Similarly unavailing is Amos’s claim that the evidence was insufficient to support his convictions on three theories.  He first claims that the injuries occurred when he was acting in loco parentis and attempting to care for the victim.  The excessive, unreasonable force Amos used breaking the infant’s ribs while trying to cause her to pass gas and defecate clearly exceeded any imaginable loco parentis rights.[8]  See Garcia, supra.  His desire to amuse and interact with the infant likewise did not encompass a right to spin and dip her recklessly “like a guitar.”  See ibid.  Finally, there was no justification for the transverse fracture of the infant’s arm.

Next, Amos argues that proof of recklessness is absent because he was unaware that his conduct was likely to cause the victim substantial harm.  The claim belies the recognition in his statement to Silverio and Cronin that the pushing maneuver may have been causing organ damage, that using the infant as a guitar and letting go of her head so that it crashed on his shoulder may have caused the brain bleed, and that his grabbing of the victim’s arm so tightly may have broken it.  Moreover, proof of recklessness only requires that the defendant intended to do the reckless act, not that he intended a specific result.  See Welansky, 316 Mass. at 398-399; Commonwealth v. Macey, 47 Mass. App. Ct. 42, 48 (1999).  All that is required is that “an ordinary person in the same circumstances would have realized the gravity of the danger.”  Garcia, supra at 422.  Here, there is no question that there was sufficient evidence to support a finding that Amos intended the acts that caused the multiple fractures and subdural hematoma.  We are also convinced on this evidence that an ordinary person in the same circumstances would have realized the substantial risk of injury to which he was subjecting an infant by engaging in such conduct.  See ibid.

Amos’s third contention, that the Commonwealth was required to prove that Amos had exclusive control of the victim, fails to recognize that viewing the evidence and the inferences in the light most favorable to the Commonwealth was sufficient to show that Amos had control of the victim and that he inflicted the injuries.  See generally Macey, supra.  The Commonwealth need not “exclude all possible exculpatory interpretations of the evidence.”  Ibid., quoting from Commonwealth v. Russell, 46 Mass. App. Ct. 307, 310 (1999).

2.  Wilson’s expert testimony.[9]  Next, Amos argues that Wilson improperly testified to a neuroradiologist’s opinion that the subdural hematoma was acute, thereby depriving him of the right to cross-examine the neuroradiologist.  In giving her own independent opinion, Wilson referenced a neuroradiologist with whom she had consulted in reaching her opinion and that his “impression” was that the injury had an “acuity to it” that made it unlikely to date back to birth.  Wilson made clear, however, that she was capable of reviewing the scans of the victim’s head, that she had done so in this case, and that she had reached her own conclusion that the injury was acute.  Because Wilson did not testify to the opinion of the neuroradiologist but merely included the neuroradiologist’s impressions as material upon which she had relied in reaching her own opinion, the defendant was not deprived of his rights under the Sixth Amendment to the United States Constitution.  Furthermore, he was able to cross-examine Wilson on her testimony and the basis for her opinion.  See Commonwealth v. Barbosa, 457 Mass. 773, 785 (2010); Commonwealth v. Greineder, 464 Mass. 580, 593-594 (2013).  See also Crowe v. Marchand, 506 F.3d 13, 17-18 (1st Cir. 2007) (there is a custom and practice in the medical profession that doctors routinely rely on observations reported by other doctors, and it is unrealistic to expect a physician, as a condition precedent to offering an opinion, to have performed every test, procedure, and examination himself or herself); Mass. G. Evid. § 703 (2015).

Amos adds to this argument that Wilson’s testimony regarding the neuroradiologist’s impressions, as well as her recitation of the details underlying her differential diagnosis, ruling out other causes of the injury, violated the prohibition against an expert presenting on direct examination the specific information on which she relied.  See Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 527-528 (1986); Greineder, supra at 594; Commonwealth v. Jones, 472 Mass. 707, 713-715 (2015).[10]  We assume without deciding that the admission of the challenged evidence was error.  Because the defendant did not object, we review only to determine whether the error, if any, created a substantial risk of a miscarriage of justice.[11]

Amos presented a defense grounded on the theory that the victim’s bones were not healthy, which was undetectable to him or Dragotta, and therefore, his innocent actions would not have caused injury to a healthy child.  In support of this theory, Amos presented an expert who gave an opinion that the victim suffered from rickets or, alternatively, a copper deficiency, that caused the bones to weaken and break.  A second expert opined that the victim’s increased platelet count generated from the healing fractures could have caused the subdural hematoma.  A high platelet count will make it more likely blood will clot, and in this case, that clot may have expanded in the small collection of veins in the skull causing a small tear and bleed.

None of the challenged testimony undercut the defense theory.  In particular, one expert agreed with Wilson that the subdural hematoma was acute, eliminating any risk of prejudice from Wilson having conveyed the same impression after consulting with the neuroradiologist.  Moreover, the defense was able to elicit testimony from Wilson that bolstered its case, namely, that the victim did not exhibit signs typically associated with a head injury from an acceleration or deceleration event, and that Wilson failed to run a full set of tests to determine the health of the victim’s bones.  In these circumstances, the admission of the challenged evidence did not create a substantial risk of a miscarriage of justice.

Finally, this was a bench trial.  ”[I]t is presumed that the judge as trier of fact applies correct legal principals.”  Commonwealth v. Milo M., 433 Mass. 149, 152 (2001), quoting from Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308 (1992).  “[T]he judge will understand the limited reason for the disclosure of the underlying inadmissible information and will not rely on that information for any improper purpose.”  Williams v. Illinois, 132 S. Ct. 2221, 2235 (2012).  “In bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.”  Harris v. Rivera, 454 U.S. 339, 346 (1981).

We conclude the judge here was not improperly swayed by having some of this information introduced on direct rather than through cross-examination.

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-11875

BERNARD E. BULWER  vs.  MOUNT AUBURN HOSPITAL & others.[1]

Middlesex.     November 3, 2015. – February 29, 2016.

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

Hospital, Appointment to staff.  Anti-Discrimination Law, Race, Employment.  Employment, Discrimination.  Contract, Employment, With hospital, Performance and breach.  Practice, Civil, Summary judgment.

Civil action commenced in the Superior Court Department on February 22, 2008.

The case was heard by S. Jane Haggerty, J., on a motion for summary judgment.

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

Robert R. Hamel, Jr. (Megan E. Kures with him) for the defendants.

Denzil D. McKenzie (James E. Clancy, IV, with him) for the plaintiff.

James A.W. Shaw, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief.

LENK, J.  Massachusetts law prohibits employers from discriminating against their employees on the basis of, among other things, race or national origin.  See G. L. c. 151B, § 4.  Because direct proof of such discrimination is rarely available, employees filing claims under G. L. c. 151B, § 4, are permitted to prove discrimination without direct evidence of discriminatory intent, by relying on evidence that their employers gave a “false reason,”[2] or pretext, for terminating their employment.  In this case, we address whether the plaintiff has produced sufficient evidence of pretext to survive his former employer’s motion for summary judgment.  In doing so, we clarify the evidentiary burdens each party faces after one party has moved for summary judgment.  We address, in particular, three concerns:  whether the evidence on which an employee relies to survive a defendant’s motion for summary judgment need show not only that the defendant’s stated reason was false, but also that it concealed a discriminatory purpose; whether it is the plaintiff’s burden to persuade the motion judge based on that evidence that there is an issue of material fact appropriate for trial; and, finally, whether, in discerning the existence of an issue of material fact, the motion judge may weigh or otherwise evaluate the evidence.

The plaintiff, Bernard E. Bulwer, is a black male of African descent who is originally from the Central American country of Belize.  The plaintiff has a medical degree from the University of the West Indies, and practiced medicine outside the United States until 2002, when he came to this country.  In order to become certified to practice medicine in the United States, he was required to complete a residency program here.  During the first year of his residency at the defendant Mount Auburn Hospital (hospital), the plaintiff received diametrically opposing reviews from supervising physicians, some laudatory and others deeply critical, after which the hospital terminated his employment.  The plaintiff filed a ten-count complaint in the Superior Court against the hospital and three physicians who supervised his work, asserting, among other things, employment discrimination under G. L. c. 151B, § 4, and breach of contract.[3]  Concluding that the plaintiff had not produced sufficient evidence of the defendants’ discriminatory intent, a Superior Court judge allowed the defendants’ motion for summary judgment on all claims.  The plaintiff appealed, and a divided Appeals Court reversed the judgment as to the discrimination and breach of contract claims, while affirming the decision on all of the other claims.  We allowed the defendants’ application for further appellate review, limited to the claims for discrimination under G. L. c. 151B, § 4, and breach of contract.  We conclude that the defendants were not entitled to summary judgment and that the plaintiff has presented evidence sufficient to allow a jury to hear his claims.

1.  Background.  We summarize facts drawn from the summary judgment record, reserving certain details for later discussion.  See LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318 (2012) (LeBlanc).  The plaintiff, in addition to his medical degree, has postgraduate training in a number of fields, including cardiovascular disease.  He practiced medicine in Trinidad, Belize, and the United Kingdom from 1989 through 2002.  In 2002, the plaintiff came to the United States as a research associate and fellow in a subresidency cardiology program at another hospital in Boston, where he worked until 2005.

In the spring of 2005, hoping to obtain a medical license to practice in the United States, the plaintiff contacted the defendant Dr. Eric Flint, director of the internal medicine residency program at the hospital.  In June, 2005, after an interview with Flint, the plaintiff was offered a residency at the hospital.  Because of delays in the processing of his visa, he began his residency in September, 2005, two months later than the other residents in his cohort.

In August, 2005, the plaintiff signed the hospital’s standard medical resident agreement (agreement), setting forth the terms and conditions of his employment.  The agreement was for a one-year term, renewable for an additional two years upon satisfactory completion of the first-year program.

The agreement stated that the hospital and its residency program would comply with the requirements promulgated by the national Accreditation Council for Graduate Medical Education (ACGME).  ACGME requires, among other things, that member programs not discriminate against residents on grounds including race and national origin.  It also requires that programs provide residents with written procedures that must be followed in the event a program seeks “academic or other disciplinary action” against a resident.

The hospital’s written procedures state that, should a resident’s supervisors decide to terminate a resident’s employment, a resident has the right to convene an ad hoc committee[4] consisting of the heads of various departments, the resident at issue, and another resident to be chosen by mutual agreement.  Such a committee would then be empowered to conduct an independent review of the employment decisions made by the resident’s supervisors.  The procedures provide further that

“[t]he resident is assured of the fundamental aspects of a fair hearing including written statement of the specific issues from the Department Chair, at least [five] days notice of the Due Process Committee meeting, the opportunity to be present and to rebut the evidence, and the opportunity to present any other information.

“. . .

“All matters upon which any decision is based must be introduced into evidence at the proceeding before the Ad Hoc Due Process Committee in the presence of the resident.”

Residents may then appeal the committee’s decision to the “President of the Medical Staff.”

After signing the agreement, the plaintiff began his residency in September, 2005.  The first-year program consisted of twelve one-month rotations in a number of different “services” throughout the hospital.  The plaintiff’s performance was to be evaluated by attending physicians and resident supervisors in each of the services where he worked.  The evaluating physicians were to fill out evaluation forms, which called for numerical ratings of various aspects of the plaintiff’s performance, as well as for written comments.  These evaluations in turn would be given to the clinical competence committee (CCC), a panel of thirteen physicians who met regularly to discuss the progress of all of the residents.  The plaintiff was also assigned a mentor, the defendant Dr. Lori Balestrero.

The plaintiff’s first rotation in September was in the hospital’s emergency department.  The plaintiff received strongly positive evaluations in that department.  Two physicians rated him as “outstanding,” and five others rated him “above average.”  They described him as knowledgeable, mature, and pleasant to work with.  Dr. Gary Setnik, head of the emergency department, provided a more lengthy written evaluation:

“Dr. Bulwer is universally held in high regard by the staff I polled and by myself.  He has been totally reliable, coming in early, and staying late on most shifts.  He aggressively works to see as many patients as possible.  His presentations are complete, his management plans appropriate, and his procedural skills very good.”

The next month, the plaintiff rotated into the medical intensive care unit (MICU).  There, he received mixed evaluations.  In an October, 2005, electronic mail message to a colleague, Dr. Soon-Il Song wrote positively that

“[the plaintiff] had procedural skills and knowledge base well above someone at an intern level.  He also was pleasant to work with.  He had a good sense of his own limitations, and asked questions often in order to clarify issues.  I think his ability to gather information in history taking was quite good and thorough.  Above all, he maintained composure and a good attitude, despite the fact that we had an especially difficult night of no sleep and challenging patients requiring multiple attending input in the middle of the night.”

Other physicians, however, viewed the plaintiff’s performance negatively.  One wrote that the plaintiff “[m]ade drastic and potentially dangerous/life threatening decisions about [patient] care [without] consulting [the] attending [physician]. . . . [He is] [t]oo confident for his own good and [the patient’s] own good without showing any proof of capability to perform at the level of an intern or resident yet.”  Another commented that the plaintiff was “eager to learn” but that “[h]e does not seem to be aware of his responsibilities as an intern despite being told them repeatedly.”  In response, the plaintiff sent an electronic mail message to Flint stating that he did not believe these negative reviews were objective, and asking Flint to obtain evaluations from four named physicians with whom the plaintiff had seen patients.  Flint did not do so.

     Setnik reported that both he and other members of his department received harsh comments from members of the MICU staff for his positive evaluations of the plaintiff.  He described this as “[a]n experience that I hadn’t previously had at Mount Auburn.”

In November, 2005, Balestrero, the plaintiff’s mentor, met with the plaintiff to discuss the negative feedback.  The plaintiff told her that he thought the negative impressions were inaccurate.  Balestrero then met with the CCC to discuss ways in which the plaintiff could improve.  Following this meeting, Balestrero presented the plaintiff with a plan for improvement that she had developed together with the CCC.  The plan included a provision for weekly meetings with Balestrero and a follow-up meeting, to be held after evaluations from the December rotation were received, with the plaintiff, Balestrero, and a CCC representative.  Neither the weekly meetings nor the follow-up meeting took place.[5]

During November and December of 2005, the plaintiff was assigned a “wards” rotation in which he provided general internal medicine care for patients who had been admitted to the hospital.  The three evaluations from that rotation that appear in the record were positive, with one evaluator noting “much improvement,” and another stating that the plaintiff was “[o]verall . . . pretty good.”  The third evaluator assigned a passing grade, but stated that the plaintiff needed improvement in “practice-based learning,” professionalism, and organization of notes charting patients’ progress.

In January, 2006, the plaintiff rotated into the cardiology department.  He received three evaluations of his work on that service.  One rated him as failing in five of six competencies, but another gave him high marks in all competencies, and the third described his presentations as “very commendable” and his knowledge as “excellent.”  In mid-January, 2006, the plaintiff met with Balestrero, who told him that he had received positive evaluations and that “the past [was] behind [him].”

In February, 2006, the plaintiff rotated again into the wards service.  One evaluator there rated him positively, while the other, Dr. Erica Bial, wrote a lengthy and negative evaluation in which she described her experience with the plaintiff as “horrendous.”  She stated that “[t]here is no aspect of the central competencies in which [the plaintiff] is even modestly competent.”  She described him as “less-than-fully-honest” and as having “a difficult time being appropriate with . . . women in the professional environment,” and recommended that the plaintiff be expelled from the residency program.  During this period, Bial “berated” the plaintiff publicly in a manner that a witness, Song, described as not “appropriate,” and as unprecedented in his experience with Bial.  Song also reported that Bial spoke negatively to other residents about the plaintiff, outside of the plaintiff’s presence.

In March, 2006, the CCC discussed the plaintiff’s mixed evaluations.  On April 5, 2006, the CCC sent the plaintiff a letter stating that it would not renew his contract because of concerns about his ability to analyze complex information, his inability to “build effective therapeutic relationships,” and his difficulty presenting information to other members of his teams.  The letter stated also that the plaintiff could finish his first year of residency, working until the end of his contract term in August, 2006.  The letter was signed by Flint and by the defendant Dr. Ricardo Wellisch, chair of the CCC.

The plaintiff invoked his right to convene an ad hoc committee pursuant to the hospital’s “due process” policy.  Although the committee consisted of most of the individuals specified in that written policy, no resident was seated on it, as required by the policy.  Further, of the committee’s three meetings, the plaintiff was invited to attend only the first one, which took place on April 24, 2006.  At that first meeting, as well as at the second, on May 2, 2006, the committee heard testimony from physicians who had previously evaluated the plaintiff during his rotations.  The transcripts of these meetings do not reflect discussion of the possibility that the plaintiff’s contract would be terminated immediately, and the plaintiff did not receive any notice to that effect.[6]  He requested that the committee forward to him any materials considered during the meetings he did not attend; those requests were not answered.

On May 9, 2006, the committee sent a letter to Dr. Stephen Zinner, chair of the department of medicine, stating that it would affirm the decision of the CCC not to renew the plaintiff’s contract.  On May 17, 2006, Zinner informed the plaintiff verbally that, because of “serious additional concerns” for “patient safety” that had arisen “in the past [three] weeks,” the plaintiff would “be immediately relieved of his responsibilities.”

The plaintiff sent a letter dated May 18, 2006, to the president and chief executive officer of the hospital stating his desire to appeal, as provided in the due process policy, from the committee’s decision not to renew his contract and to terminate his employment immediately.  The president responded with a certified letter, return receipt requested, saying that she would convene such a committee.  The plaintiff did not retrieve the letter from the postal service, which attempted delivery three times, and did not pursue the appeal.

In August, 2006, the plaintiff filed a charge of discrimination against the hospital with the Massachusetts Commission Against Discrimination.  In February, 2008, the plaintiff filed his complaint in the Superior Court, naming the hospital, Balestrero, Flint, and Wellisch as defendants.  During discovery, depositions were taken of various doctors who had worked with the plaintiff, including Dr. Ramona Dvorak, an African-American internist and psychiatrist formerly employed at the hospital, who described what she believed to have been incidents of racism she experienced during her employment.  Following discovery, in December, 2010, the defendants sought summary judgment on all counts; in June, 2011, their motion was allowed.

2.  Discussion.  The plaintiff contends that the motion judge erred in allowing the defendants’ motion for summary judgment on his claim for employment discrimination on the basis of his race and national origin, in violation of G. L. c. 151B, § 4, and on his breach of contract claim based on his termination in violation of the procedures set forth in the medical resident agreement.  The plaintiff maintains that there were disputed issues of material fact as to both claims, and the matter should proceed to trial.

a.  Standard of review.  A motion for summary judgment under Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002), is appropriate where “the moving party . . . ‘show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law’ based on the undisputed facts.”  Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467, 474 (2013), quoting Mass. R. Civ. P. 56 (c).  “In reviewing the . . . grant of a motion for summary judgment, we conduct a de novo examination of the evidence in the summary judgment record . . . and view the evidence in the light most favorable to the part[y] opposing summary judgment” (citation omitted),” LeBlanc, supra at 318, “drawing all reasonable inferences in [the nonmoving party’s] favor.”  Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 (2005) (Sullivan).

b.  Discrimination claim.  i.  Evidentiary burdens.  General Laws c. 151B, § 4, provides that “[i]t shall be an unlawful practice . . . [f]or an employer . . . because of the race, color, . . . [or] national origin . . . of any individual . . . to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”  In order to prevail at trial, an employee bringing a complaint under G. L. c. 151B, § 4, must demonstrate four things:  that he or she is a member of a protected class; that he or she was subject to an adverse employment action; that the employer bore “discriminatory animus” in taking that action; and that that animus was the reason for the action (causation).  See Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001) (Lipchitz).  The question here is whether the plaintiff provided evidence from which a reasonable jury could infer the presence of the latter two elements, i.e., that the defendants bore discriminatory animus and that the animus was the reason the defendants terminated the plaintiff’s employment.

In the pretrial context, an employee asserting a discrimination claim under G. L. c. 151B, § 4, may survive a motion for summary judgment by providing “[d]irect evidence of [the] elements” of discriminatory animus and causation.  Sullivan, supra at 39.  Because such direct evidence “rarely exists,” however, an employee plaintiff may also survive such a motion by providing “indirect or circumstantial evidence [of discriminatory animus and causation] using the familiar three-stage, burden-shifting paradigm first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–805 (1973) (McDonnell Douglas).”  Sullivan, supra at 39-40.

“In the first stage [of this paradigm], the plaintiff has the burden to show . . . a prima facie case of discrimination.”  Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995) (Blare).  To do so, a plaintiff must provide “evidence that:  (1) he [or she] is a member of a class protected by G. L. c. 151B; (2) he [or she] performed his [or her] job at an acceptable level; [and] (3) he [or she] was terminated.”  Id.  “In the second stage, the employer can rebut the presumption created by the prima facie case by articulating a legitimate, nondiscriminatory reason for its [employment] decision.”  Id.  In the third stage, the burden of production[7] shifts back to the plaintiff employee, requiring the employee to provide evidence that “the employer’s articulated justification [for the termination] is not true but a pretext.”  Id. at 443.

The defendants contend that, at this third stage, the plaintiff must present evidence that the “[hospital]‘s reason for termination constituted a pretext concealing a discriminatory purpose” (emphasis supplied).  Bulwer v. Mount Auburn Hosp., 86 Mass. App. Ct. 316, 347 (2014) (Sikora, J., dissenting) (Bulwer).  See id. at 355 (Sikora, J., dissenting) (taking position that claim fails because plaintiff did not show “invidious intent”).  This formulation, however, overstates the plaintiff’s burden at the summary judgment stage because “Massachusetts is a pretext only jurisdiction.”  Blare, supra at 443.  See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 114-115 (2000).  As we explained in Lipchitz, supra at 500-501:

“The phrase ‘pretext for discrimination’ implies that the plaintiff must prove not only that a reason given by the employer for the adverse decision was false, but that the reason was given to cover a discriminatory animus.  Our decisions do not require this. . . .  If the employee were able to prove by direct evidence that discriminatory animus motivated the decision, [he] would not have to rely on the indirect method of proving animus by disproving at least one of the employer’s articulated, nondiscriminatory reasons” (citations omitted).

To survive a motion for summary judgment, the plaintiff need only present evidence from which a reasonable jury could infer that “the respondent’s facially proper reasons given for its action against him were not the real reasons for that action.”  Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 139 (1976) (Wheelock College).  The case can then proceed to trial, at which point, “if the fact finder is persuaded that one or more of the employer’s reasons is false, it may (but need not) infer that the employer is covering up a discriminatory intent, motive or state of mind.”[8]  Lipchitz, supra at 501.  In other words, a fact finder at trial may infer that, “[c]ombined with establishment of a prima facie case . . . , a showing of pretext eliminates any legitimate explanation for the adverse hiring decision and warrants a determination that the plaintiff was the victim of unlawful discrimination.”[9]  Blare, supra at 446.

The defendants also argue that, at this third stage, the burden of persuasion is on the “the plaintiff . . . to demonstrate that there is a genuine issue of material fact whether the defendants’ proffered reason is a pretext” (emphasis in original).[10]  Bulwer, supra at 347 (Sikora, J., dissenting).  See id. at 348 (Sikora, J., dissenting) (“plaintiff must substantiate a genuine issue of” material fact).  While the plaintiff does bear “the burden of producing evidence” that the employer’s reasons are pretextual, see Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 127 (1997) (Matthews), the burden of persuasion at summary judgment remains with the defendants, who, “as the moving part[ies], ‘ha[ve] the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue, even if [they] would not have the burden on an issue if the case were to go to trial.’”  Sullivan, supra at 39, quoting Matthews, supra.

ii.  Questions of material fact.  In opposing the defendants’ motion for summary judgment, the plaintiff relies on indirect evidence of discrimination, which we analyze using the McDonnell Douglas three-stage paradigm.  The defendants concede, with regard to the first stage, that the plaintiff has satisfied his obligation to make out a prima facie case of discrimination.[11]  With regard to the second stage, the defendants assert that the plaintiff’s employment was terminated based on his poor performance evaluations, included in the record, that express doubts about his abilities and raise concerns for patient safety.  This satisfies the defendants’ obligation to produce both “lawful . . . reasons for [their] employment decision” and “credible evidence to show that the . . . reasons advanced were the real reasons.”[12]  See Blare, supra at 442, quoting Wheelock College, supra at 138.  We therefore move to the third stage, and consider whether the plaintiff has provided evidence sufficient to allow a reasonable jury to infer that “the employer’s articulated justification is not true but a pretext.”  Blare, supra at 443.

We begin by reciting more specifically the reasons provided by the hospital for terminating the plaintiff’s employment.  In April, 2006, Wellisch and Flint sent a letter to the plaintiff citing his “inability to adequately analyze clinical data in complex cases,” “inability to consistently build effective therapeutic relationships,” and “inability to gain insight into feedback that is offered.”  In May, 2006, Zinner decided to terminate the plaintiff’s employment immediately due to asserted “additional clinical errors, failures to document or comply with our clearly stated expectations about chart notes, and failures to call for appropriate help with severely ill patients.”

The record contains at least five categories of evidence from which a jury might infer that these stated reasons were not the real reasons that the plaintiff’s employment was terminated.  When “taken as a whole rather than viewed in isolation,” such evidence could lead a rational jury to conclude that the reasons for the plaintiff’s discharge were pretextual.  See Dorman v. Norton Co., 64 Mass. App. Ct. 1, 9-10 (2005).

First, while the record plainly contains negative evaluations tending to support the aforementioned criticisms, the record also contains numerous evaluations inconsistent with these criticisms.  See Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1380 (10th Cir. 1994) (reversing summary judgment for employer where conflicting evaluations raised fact questions about true reasons for adverse employment action).  See also Bonefont-Igaravidez v. International Shipping Corp., 659 F.3d 120, 124 (1st Cir. 2011), quoting Gómez–González v. Rural Opportunities, Inc., 626 F.3d 654, 662–663 (1st Cir. 2010) (“pretext can be established by showing . . . ‘weaknesses [or] implausibilities . . . in the employer’s offered reasons’”); 59 Causes of Action 2d, Cause of Action under Age Discrimination in Employment Act § 24 (2013) (“evidence of satisfactory or superior performance evaluations . . . may tend to show . . . the illegitimate nature of the defendant’s articulated reason”).

For example, some evaluators wrote of the plaintiff’s “excellent” “ability to interpret and analyze clinical data, and formulat[e] a plan of management,” even as the plaintiff was dismissed ostensibly because he could not “adequately analyze clinical data in complex cases.”  Similarly, some evaluators praised the plaintiff’s “progress notes” as “very detailed and informative,” “very thorough,” and “generally well thought out,” while others criticized him for “fail[ing] to document or comply with . . . expectations about chart notes.”  Moreover, evaluations noting that “several patients have commented on [the plaintiff’s] thoroughness and humanistic qualities” and that “patients’ family members told [the evaluator] several times how helpful he had been during an emotionally difficult time” are in some tension with the view that the plaintiff evinced an “inability to consistently build effective therapeutic relationships.”  The record also contains evaluations noting that the plaintiff “had a good sense of his own limitations” and that he took “in feedback well.”[13]  These disparate evaluations prompted the chair of the ad hoc committee to note that “it is interesting how one set of behaviors can elicit such different perception.”

There is, secondly, evidence that the plaintiff was treated differently from similarly situated interns who are not black.  See Matthews, supra at 129 (“The most probative means of establishing that the plaintiff’s termination was a pretext for racial discrimination is to demonstrate that similarly situated white employees were treated differently”).  For example, Song named two foreign interns (one white and one apparently Asian) who experienced “similar issues” but who, unlike the plaintiff, “were given opportunities to remediate or repeat rotations.”[14]  The plaintiff identified a third.[15]  The suggestion that the plaintiff was treated differently from these individuals based on his race also finds support in Setnik’s statement that “[i]t is hard to understand the underlying basis for [the negative] perceptions of [the plaintiff’s] work.”

Third, Dvorak, an African-American internist and psychiatrist, described three separate instances of Caucasian doctors whose deficient performances she and other staff members noticed and brought to the attention of hospital administrators, but who were not subject to disciplinary action until months or years after the complaints were made – and then only because of pressure from patients and other hospitals.  Dvorak also noted an incident in which she found “white supremacist” literature in the break room.  Although she told administrators “how upsetting [this] was, particularly [to her] as a[n] African-American,” she maintains that the administrators rejected requests to discipline employees who displayed such literature in the workplace.[16]

Fourth, a reasonable jury could interpret a number of comments by the plaintiff’s evaluators and supervisors as reflecting “[s]tereotypical thinking . . . categorizing people on the basis of broad generalizations.”  Lipchitz, supra at 503 n.16.  Although such statements in isolation would not be adequate to support a finding of discrimination, when considered with evidence of disparate or unfair treatment in the evaluation process, they may lend support to such a finding.  See Conway v. Electro Switch Corp., 825 F.2d 593, 597 (1st Cir. 1987) (“While evidence of a discriminatory atmosphere may not be conclusive proof of discrimination against an individual plaintiff, such evidence does tend to add ‘color’ to the employer’s decisionmaking processes and to the influences behind the actions taken with respect to the individual plaintiff”).

For instance, one evaluator criticized the plaintiff for being “too confident for his own good.”  Another said that someone in the plaintiff’s position as an “intern is not supposed to be smart” and “[t]hat is why all of this [criticism] is happening.”  Yet another, Bial, stated that the plaintiff was “the least respectful person with whom [she had] ever worked” and that he “has no capacity whatsoever for self-assessment.”  Bial also spoke negatively to other residents and interns about the plaintiff outside of the plaintiff’s presence and “berated him” publicly in a manner that a witness identified as both not “appropriate” and unprecedented in his experience with Bial.  Additionally, in informing the plaintiff of the decision not to promote him, Zinner noted that the plaintiff “is not well suited for a career in internal medicine in this country.“  These kinds of comments can, of course, admit of different interpretations by a jury, including ones reflecting only untainted professional judgment.  One interpretation that a jury could make of such comments, however, is that, combined with Bial’s behavior, they reflect a subconscious sense that the plaintiff, as a black man and a foreigner, did not “know his place.”[17]  See Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (judgment as matter of law for employer inappropriate where employer used ambiguous term that, though “not always . . . evidence of racial animus,” is not “always benign”).

Fifth, there is evidence that the defendants did not follow their written procedures in deciding to terminate the plaintiff’s employment.  A “‘failure to follow established procedures or criteria’ . . . [may] support a reasonable inference of intentional discrimination.”  Nesbitt v. Holder, 966 F. Supp. 2d 52, 56 (D.D.C. 2013), quoting Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008).  See 1 A. Larson, Employment Discrimination § 8.04, at 8-81 to 8-82 (rev. ed. 2015) (“pretext can be shown by demonstrating . . . irregularities in . . . the procedures for discharge”).

Here, the defendants departed from their written due process policy by failing to include a resident on the ad hoc committee, by not allowing the plaintiff to attend two of the three meetings of that committee, and by failing to heed the plaintiff’s request for materials from those meetings.  The defendants further departed from this policy when they immediately terminated the plaintiff’s employment without having informed him, either before or after the ad hoc committee meeting, that this step was being considered.

The defendants argue that these five categories of evidence do not suffice to raise a question of material fact.  They note that, even if all of the inferences drawn by the plaintiff from the above evidence were reasonable, the ad hoc committee conducted “an expanded review” of the CCC’s decision to terminate his employment and “concluded that the [plaintiff’s] deficiencies remained serious.”  Bulwer, supra at 355 (Sikora, J., dissenting).  A “third [party]‘s independent decision to take adverse action,” they argue, “breaks the causal connection between [any] retaliatory or discriminatory animus [harbored by the plaintiff’s evaluators] and the adverse action.”  Mole v. University of Mass., 442 Mass. 582, 598 (2004).  This argument is unavailing.

In addition to input from the plaintiff, the ad hoc committee based its conclusions on the evaluations relied on by the CCC, as well as on testimony from the physicians who wrote those evaluations and on statements and memoranda from the CCC itself.  Where “the decision makers relied on the recommendations of supervisors [whose motives have been impugned], the motives of the supervisors should be treated as the motives for the decision. . . .  An employer [may not] insulate its decision by interposing an intermediate level of persons in the hierarchy of decision, and asserting that the ultimate decision makers acted only on recommendation” (citation omitted).  Trustees of Forbes Library v. Labor Relations Comm’n, 384 Mass. 559, 569-570 (1981).  See Cariglia v. Hertz Equip. Rental Corp., 363 F.3d 77, 83 (1st Cir. 2004) (“liability can attach if neutral decision makers, when deciding to terminate an employee, rely on information that is inaccurate, misleading, or incomplete because of another employee’s discriminatory animus”).

The defendants also argue, in essence, that criticisms of the plaintiff’s performance, even if harsh, are best read to reflect “professional” judgment rather than racial animus.  Bulwer, supra at 350 (Sikora, J., dissenting).  Even assuming the defendants are correct such that they could prevail on this point at trial, at the summary judgment stage “a court does not resolve issues of material fact, assess credibility, or weigh evidence.”  Kernan v. Morse, 69 Mass. App. Ct. 378, 382 (2007).  The question of whose interpretation of the evidence is more believable, “raised by the [parties’] conflicting evidence as to the defendant[s’] motive, is not for a court to decide on the basis of [briefs and transcripts], but is for the fact finder after weighing the circumstantial evidence and assessing the credibility of the witnesses.”[18]  Lipchitz, supra at 499, quoting Blare, supra at 445.

In this regard, summary judgment remains “a disfavored remedy in the context of discrimination cases based on disparate treatment . . . because the ultimate issue of discriminatory intent is a factual question” (citations omitted).[19]  Blare, supra at 439.  A defendant’s motive “is elusive and rarely is established by other than circumstantial evidence,” therefore “requir[ing] [a] jury to weigh the credibility of conflicting explanations of the adverse hiring decision.” [20]  Id. at 439-440.

c.  Breach of contract claim.  To prevail on a claim for breach of contract, a plaintiff must demonstrate that there was an agreement between the parties; the agreement was supported by consideration; the plaintiff was ready, willing, and able to perform his or her part of the contract; the defendant committed a breach of the contract; and the plaintiff suffered harm as a result.  Singarella v. Boston, 342 Mass. 385, 387 (1961).  At issue here is the fourth element, i.e., whether the defendants committed a breach of the contract embodied in the medical resident agreement.

The plaintiff maintains that the defendants committed such a breach in five ways:  by failing to comply with the ACGME’s nondiscrimination policy; by failing to include a resident on the ad hoc committee as required by the hospital’s written procedures; by failing to advise the plaintiff, in advance, of certain items to be discussed by the ad hoc committee; by failing to provide him with the resources and supervision necessary to perform his job; and by failing to offer him an opportunity to appeal from the decision of the ad hoc committee.[21]  To prevail on a motion for summary judgment on these claims, the defendants must demonstrate that “there are no material facts in dispute.”  Somerset Sav. Bank v. Chicago Title Ins. Co., 420 Mass. 422, 426 (1995).

With regard to the first allegation, the defendants were bound by the ACGME’s nondiscrimination policy prohibiting discrimination based on race or national origin.  This policy was incorporated by reference in the medical resident agreement.  See Chicopee Concrete Serv., Inc. v. Hart Eng’g Co., 398 Mass. 476, 478 (1986) (“incorporation by a clearly stated general reference will suffice”).  Whether the defendants violated this policy requires analysis of much the same evidence noted in our discussion of the plaintiff’s discrimination claim.  For similar reasons, we conclude that the defendants have failed to establish the absence of any issue of material fact with regard to the assertion of a violation of the ACGME’s nondiscrimination policy.

Turning to the second allegation – failure to include a resident on the ad hoc committee – it is undisputed that the ad hoc committee did not include a resident.  The inclusion of a resident was required by the hospital’s grievance policy, which the hospital was to follow under the terms of the ACGME requirements and thereby under the medical resident agreement as well.  Although the defendants claim that the plaintiff was not harmed by this failure to comply with the medical resident agreement, that is a question of fact for the jury.

It is also undisputed that the plaintiff was not invited to the latter two meetings of the ad hoc committee and that the defendants failed to notify the plaintiff, in advance of those meetings, that they were considering immediately terminating his employment.  There is also no indication in the record that the plaintiff was ever given any information about “additional” concerns cited by the committee regarding patient safety notwithstanding the plaintiff’s request for pertinent information.  The hospital’s grievance policy, however, requires that a resident receive from the department chair in advance of the meeting a “written statement of the specific issues [to be discussed at the meeting].”[22]  Although the defendants gave the plaintiff an opportunity to submit written rebuttal evidence, a reasonable jury could find that this was not equivalent to an opportunity to participate fully in the initial proceedings.  They could also find that the plaintiff’s lack of notice and diminished participation in the meetings reduced the effectiveness of his participation in those meetings and, accordingly, affected the outcome of the committee’s deliberations.

The plaintiff contends further that the defendants failed to provide him, as required by the ACGME, with the “appropriate supervision” and “resources” necessary to perform his work.  In this regard, the plaintiff has proffered evidence that his mentor did not hold weekly meetings with him as outlined in his remediation plan.  More generally, he points to evidence, detailed earlier, that he was not offered the same remediation opportunities as similarly situated peers, which could be construed as a failure to provide “appropriate supervision.”[23]

3.  Conclusion.  The judgments in favor of the defendants on the plaintiff’s claims for employment discrimination under G. L. c. 151B, § 4, and breach of contract are vacated and set aside.  The matter 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

15-P-149                                        Appeals Court

Sewall-Marshal Condominium Association  vs.  131 Sewall Avenue Condominium Association.

No. 15-P-149.

Suffolk.     December 11, 2015. – March 1, 2016.

Present:  Cypher, Wolohojian, & Carhart, JJ.

Condominiums, Parking, Common area.  Real Property, Condominium, Registered land.  Contract, Validity.

Civil action commenced in the Land Court Department on March 1, 2007.

The case was heard by Harry M. Grossman, J.

Adam P. Whitney for the defendant.

Edward S. Englander for the plaintiff.

WOLOHOJIAN, J.  The parties are neighboring condominium associations in the Coolidge Corner area of Brookline, where parking is at a premium.  In 1978, when both condominiums were controlled by the same developers, they entered into a written agreement concerning the shared use and allocation of parking spots on their respective properties.  Summarized in broad strokes, they agreed that twenty percent of the spots would be reserved for residents of the plaintiff, the smaller of the two condominium associations (Sewall-Marshal), and eighty percent would be reserved for residents of the defendant, the larger one (131 Sewall), at no cost to either side.  This arrangement continued for some twenty-eight years until 131 Sewall notified Sewall-Marshal that it would no longer abide by the agreement.  This suit followed, seeking a declaration concerning the rights of the parties under the agreement.  In essence, 131 Sewall contends that the agreement is unenforceable because it fails to comply with various provisions of G. L. c. 183A, the statute that enables the creation of condominiums, and because it is otherwise an unconscionable contract.  After a bench trial, a judge of the Land Court sitting by designation in the Superior Court disagreed and entered a declaratory judgment in favor of Sewall-Marshal.  We affirm.

Background.  The judge’s findings have not been shown to be clearly erroneous, and we summarize them here.  The parties are condominium associations situated on abutting parcels of registered land in Brookline, near Coolidge Corner.  Both associations were created in 1978, pursuant to the provisions of G. L. c. 183A, and their master deeds and by-laws were registered with the Norfolk registry district of the Land Court (registry district).  With certain exceptions, the organizing documents of both entities mirror each other, which is not surprising given that both properties were developed by the same owners, Roger and Matthew Stern.

Roger and Matthew, along with Jeffrey Stern, constituted the original boards of both condominiums and, pursuant to various enabling provisions in the by-laws,[1] they entered into the parking agreement in December, 1978, which they executed under seal.  That agreement provides in relevant part:

“So long as the 131 Sewall Avenue Condominium and the Sewall-Marshal Condominium shall be condominiums subject to Chapter 183A . . . Sewall-Marshal Condominium shall have the right, without cost, to the use of 20% of the total number of parking spaces located in both Condominiums, and 131 Sewall Avenue Condominium shall have the right, without cost, to the use of 80% of the total number of parking spaces located in both C[o]ndominiums.

“The Boards of Managers, or their designees, of the two Condominiums shall meet during the month of December as necessary to agree upon the particular spaces which the Condominiums shall have the right to use . . . for the next year.”

The agreement was never submitted to registration or otherwise placed in the record at the registry district.  Some original unit owners were provided a copy of the agreement with the condominium documents.  Although shortly after the agreement was entered into, the by-laws of Sewall-Marshal were amended to reflect that each unit owner would be allocated the use of a parking spot pursuant to the parking agreement, the by-laws of 131 Sewall were not.

There were sixty-two parking spaces between the two condominiums in 1978, and there are now sixty-eight.  The majority of these spaces (approximately sixty) are part of 131 Sewall’s common area, which includes a parking garage.  The remaining spaces are part of Sewall-Marshal’s common area, and are all outdoors.  131 Sewall has more units (fifty-one) than Sewall-Marshal (sixteen).  At the time the condominiums were created, Brookline zoning ordinances required a minimum of one parking space per condominium unit.

It appears that the parties operated under the parking agreement without incident for close to thirty years.  Then, on December 14, 2006, 131 Sewall announced to Sewall-Marshal that, as of February 14, 2007, it would “designate spaces to our own unit owners,” and that “[a]s of February 15, 2007, any vehicle that is parked on [131 Sewall’s] property without a written agreement for the same . . . will be towed at the vehicle owner’s expense.”

Discussion.  131 Sewall argues that the parking agreement is unenforceable because of various provisions of the Massachusetts condominium statute, G. L. c. 183A (Act), which has been characterized as “essentially an enabling statute.”[2]  Tosney v. Chelmsford Village Condominium Assn., 397 Mass. 683, 686 (1986).  Specifically, 131 Sewall contends that the parking agreement was an unrecorded easement and, therefore, ineffective ab initio, and, further, pointing to § 5(b) of the Act,

that the parking agreement altered the undivided interests of the unit owners without their consent.  Section 5(b), as in effect when the condominiums were formed, see St. 1963, c. 493, § 1, provides, in part, that “[t]he percentage of the undivided interest of each unit owner in the common areas . . . as expressed in the master deed shall not be altered without the consent of all unit owners, expressed in an amended master deed duly recorded.”  Both arguments fail if for no other reason than that they rest on incorrect premises:  namely, that the parking agreement created an easement and that it affected the interests of the unit owners in the common areas.

An easement is a property interest appurtenant to land which allows “one proprietor . . . some profit, benefit, or beneficial use, out of, in, or over the estate of another proprietor.”  Commercial Wharf E. Condominium Assn. v. Waterfront Parking Corp., 407 Mass. 123, 133 (1990), quoting from Ritger v. Parker, 8 Cush. 145, 147 (1851).  The parking agreement did not create an easement because it did not create a property interest appurtenant to land.  Although the agreement sets the percentage of parking spaces each condominium has the right to use, it does not assign any particular space to one or the other condominium, or to any specific unit owner.  There is no specific property benefited or burdened by the agreement; accordingly, the parking agreement did not create an easement.^[3]

Nor did the parking agreement alter 131 Sewall’s unit owners’ percentage interest in the condominium’s common areas such that unanimous consent was required under G. L. c. 183A, § 5(b).  See Kaplan v. Boudreaux, 410 Mass. 435, 438 (1991).  In Kaplan, a condominium’s governing body executed an amendment to the condominium’s by-laws that allowed one unit owner the exclusive use of an area that had previously been part of the condominium’s common area.  Id. at 441.  The court held that because “other unit owners . . . lost all right to use part of the common property, and one unit owner gained the right to use it exclusively” the percentage interests in the condominium’s common areas had been altered by the by-law amendment.  Id. at 443.  The court concluded that the amendment violated G. L. c. 183A, § 5(b), because unanimous consent by the affected unit owners had not been obtained before their interests in the common area were diminished.  Id. at 443-444.  By contrast, the parking agreement does not grant exclusive use of the condominium’s common areas to any unit owner.  Indeed, the agreement created a procedure whereby parking space assignments could be changed each year.  No unit owner’s interest in the common area diminished.

Rather than creating an easement or altering interests in the condominiums’ common areas, the parking agreement was instead simply an exercise of the boards’ powers under G. L. c. 183A, § 10(b)(1), inserted by St. 1963, c. 93, § 1, “[t]o lease, manage, and otherwise deal with . . . [the] common areas.”  See Commercial Wharf E. Condominium Assn., supra at 129 (“In G. L. c. 183A, § 10 [b] [1], the Legislature has proclaimed that the [condominium’s governing body], as the owner of the possessory interest in the condominium land, has the power to manage and control that land”).  Because the Massachusetts condominium statute does not circumscribe the means by which a board can exercise this power, the boards here were allowed to exercise it in whatever lawful way they saw fit.  In this case, the developers did so by including in the by-laws the power to enter into a parking agreement with the abutting condominium, and then signing a contract that pooled and allocated parking spaces located on the common areas.  Cf. id. at 129 (prior recorded developer-created easement did not violate § 10[b][1]).

The parking agreement is a valid contract, that is, a bargained-for exchange supported by consideration.[4]  See Kirkpatrick v. Boston Mut. Life Ins. Co., 393 Mass. 640, 652 (1985) (O’Connor, J., dissenting).  Each side gave and received the opportunity to park in the other’s parking spots.  This opportunity was not a chimera; at least one unit in 131 Sewall has been assigned a parking spot at Sewall-Marshal for at least twenty years.  See Newhall v. Paige, 10 Gray 366, 368 (1858) (“The law does not undertake to determine the adequacy of a consideration. . . .  It is sufficient if the consideration be of some value, though slight, or of a nature which may enure to the benefit of the party making the promise”).  It does not matter that the benefit may have been greater to the residents of Sewall-Marshal than to those of 131 Sewall.

131 Sewall argues that the parking agreement, if a contract, is an unconscionable one.  ”[U]nconscionability must be determined on a case by case basis, giving particular attention to whether, at the time of the execution of the agreement, the contract provision could result in unfair surprise and was oppressive to the allegedly disadvantaged party.”  Miller v. Cotter, 448 Mass. 671, 679-680 (2007) (quotation and citation omitted).  As the same three people constituted the boards of both condominiums when the contract was entered into, the parking agreement could hardly result in unfair surprise to either side.  That the agreement was adhered to for over twenty years without incident underscores the lack of surprise.  Finally, when the agreement was executed, 131 Sewall had more parking spaces (sixty) than units (fifty-one).

131 Sewall urges us to consider provisions of the Uniform Common Interest Ownership Act (UCIOA) (2008)[5] and the Restatement (Third) of Property:  Servitudes (2000) that it contends would allow it to terminate the parking agreement.  Neither of these has been incorporated into our laws,^[6] and we are not inclined to adopt them here.  However, even were we to consider them, 131 Sewall would not benefit.  Although the UCIOA and the Restatement contain provisions meant to deal with the “common problem” of a developer entering into “long-term contracts and leases with himself or with an affiliated entity” when he is in control of a condominium’s board, UCIOA, 7(IB) U.L.A. § 3-105 comment 1, at 349 (Master ed. 2009); see Restatement (Third) of Property:  Servitudes, supra at § 6.19, they do not apply here.

Under § 3-105 of the UCIOA, a condominium board (once it is controlled by the unit owners) may terminate contracts and leases made during the period of developer control within two years of the developer ceding control of the board to the unit owners, unless the contract is unconscionable, in which case the unit owner-controlled board may cancel at any time.  UCIOA, supra at § 3-105(a), (b).  See Restatement (Third) of Property:  Servitudes, supra at § 6.19(3)(d).  Here, the agreement was not unconscionable, as we have discussed, and 131 Sewall’s board did not seek to terminate the agreement within two years of the developers transferring control of the board to the unit owners.

Section 6.19(3) of the Restatement (Third) of Property: Servitudes, supra, allows the unit owner-controlled board to terminate, at any time, “(b) any contract or lease between the [governing body] and the developer, or an affiliate of the developer; [and] (c) any lease of recreational or parking facilities.”  But the parking agreement is not a lease, and the agreement was between the two associations; accordingly this provision does not apply.  We recognize that the boards were both controlled by the same three men who were the developers of the properties.  However, there is no evidence of self-dealing or benefit to them; they appear to have gotten nothing out of the arrangement.

For these reasons, we conclude that the judge did not err

in enforcing the parking agreement as a valid contract.

Judgment affirmed.

Postjudgment order dated                                        December 31, 2014,                                            affirmed.[7]

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-11752

SARAH S. KIM  vs.  LLOYD ROSENTHAL.[1]

March 2, 2016.

Supreme Judicial Court, Superintendence of inferior courts.

Sarah S. Kim appeals from a judgment of a single justice of this court denying her petition for relief pursuant to G. L. c. 211, § 3, and her complaint for relief in the nature of certiorari and mandamus pursuant to G. L. c. 249, §§ 4, 5 (collectively, petition).  We affirm.

In November, 2012, the respondent, Lloyd Rosenthal, commenced a summary process action against Kim in the District Court.  Kim’s condominium unit had been foreclosed upon, and Rosenthal was the new owner.[2]  The court ruled in Rosenthal’s favor, and Kim appealed to the Appellate Division of the District Court, which affirmed the judgment.  Kim then filed her petition in the county court, stating that she was seeking relief from the Appellate Division decision and also that she “prays the Honorable Court to review and correct errors made in the Superior Court (for Suffolk County); the Land Court, and the Appeals Court, resulting in unwarranted loss of [her] two real properties.”  The single justice denied the petition without a hearing.

The crux of Kim’s argument, as best we can discern from the record before us, appears to be that the attorney or attorneys who represented the plaintiff in the proceedings that led to the foreclosure of Kim’s condominium committed “egregious . . . fraud[].”  In Kim’s view, that purported fraud rendered void any judgments that led to the current situation.  Essentially, she appears to be arguing that the judgment against her in the summary process action is void because the underlying foreclosure is void.

Relief under G. L. c. 211, § 3, is properly denied “where there are adequate and effective routes . . . by which the petitioning party may seek relief.”  Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019 (1996).  Similarly, “[r]elief in the nature of mandamus is extraordinary, and is granted in the discretion of the court where no other relief is available.”  Murray v. Commonwealth, 447 Mass. 1010, 1010 (2006), citing Forte v. Commonwealth, 429 Mass. 1019, 1020 (1999).  See Picciotto v. Appeals Court (No. 2), 457 Mass. 1002, 1002, cert. denied, 562 U.S. 1044 (2010), quoting G. L. c. 249, § 4 (“certiorari relief designed to correct errors ‘not otherwise reviewable by motion or by appeal’”).  The petitioner bears the burden to allege and demonstrate the absence or inadequacy of other remedies.  See, e.g., Russell v. Nichols, 434 Mass. 1015, 1016 (2001).  Kim has not met, and cannot meet, this burden where she had another adequate and effective avenue for seeking relief:  she could have appealed from the Appellate Division decision to the Appeals Court.  Indeed, Kim appealed from some of the judgments that preceded the summary process action, and to the extent that the issues she raises here relate to those proceedings, she had an opportunity to raise those issues in the earlier appeals.  See note 2, supra.

The single justice did not err or abuse his discretion in denying relief.[3]

Judgment affirmed.

Sarah S. Kim, pro se.

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-09926

COMMONWEALTH  vs.  THOMAS LALLY.

Norfolk.     November 6, 2015. – March 3, 2016.

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

Homicide.  Deoxyribonucleic Acid.  Evidence, Prior consistent statement, Prior misconduct, Subsequent misconduct.  Practice, Criminal, Capital case, New trial, Assistance of counsel, Argument by prosecutor, Redaction.

Indictment found and returned in the Superior Court Department on January 21, 2003.

The case was tried before Charles M. Grabau, J., and a motion for a new trial, filed on June 16, 2010, was heard by Kenneth J. Fishman, J.

Catherine J. Hinton (Charles W. Rankin with her) for the defendant.

Pamela Alford, Assistant District Attorney, for the Commonwealth.

HINES, J.  The defendant, Thomas Lally, was convicted by jury of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.[1]  Represented by new counsel, the defendant filed a motion for a new trial based on claimed errors at trial:  (1) admission of deoxyribonucleic acid (DNA) evidence;[2] (2) admission of an audiotape of prior consistent statements made by the Commonwealth’s principal witness, a cooperating codefendant; (3) admission of a cooperating codefendant’s plea agreement without proper redaction; (4) admission of prior bad act evidence; and (5) ineffective assistance of counsel for improperly advising the defendant to testify and for failing to call surrebuttal witnesses.[3]  A judge of the Superior Court who was not the trial judge denied the defendant’s motion after an evidentiary hearing.  The defendant appealed and it was consolidated with his direct appeal, which raises the same issues.  We affirm the order denying the defendant’s motion for new trial as well as the defendant’s conviction, and we discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E.

Background.  We recite the facts as the jury could have found them, reserving other facts for later discussion.  On December 19, 2001, the defendant hit the victim with a frying pan and tea kettle and then suffocated her until she died.  He moved her body to the bottom of a staircase and made it appear to be an accident.

The night before the murder, the defendant slept at the victim’s house with two friends, Jason Weir and the victim’s great-nephew, Anthony Calabro.[4]  The victim, eighty-four years old at the time of her death, owned a three-family house in Quincy.  She lived in the second-floor apartment with Anthony, who had moved in with the victim the summer before the murder.[5]  Anthony was an intended beneficiary of her estate when she died.

Weir was sixteen at the time of the murder, four years younger than the defendant and two or three years younger than Anthony.  Both Weir and the defendant lived with their own parents, although Weir had lived with the defendant for a few months during the summer of 2000.  The defendant and Weir both desired to move out of their parents’ homes.  During the fall of 2001, the defendant stayed at the victim’s house approximately five nights per week and Weir stayed there on the weekends.

The defendant often commented about how he and Anthony could kill the victim and get her money.  Specifically, the defendant said, “Wouldn’t it be funny if we pushed her down the stairs and got her money?”; “We can kill her and no one would find out”; and that he could “knock her over the head with a blunt object and then place her at the bottom of the stairs to make it look like an accident.”  The defendant referred to the victim as a “bitch,” a “cunt,” and a “douchebag.”

On the day of the murder, the defendant, Weir, and Anthony woke at approximately noon.  That afternoon, the defendant obtained the victim’s frying pan and told Weir, “Today’s the day.”  Anthony went outside with the defendant’s dog.  The victim saw the defendant enter the kitchen with her frying pan and scolded him for taking her things without asking.  She put the frying pan in the pantry.  The defendant retrieved it and then used it to hit her on the head.  Next, he hit her on the head with a tea kettle, put his hand over her mouth and nose to suffocate her, and said, “Just go.  Anthony wants it this way.”

Weir testified that he did not assist the victim because he was afraid, “freaking out,” and crying.  The defendant told him, “We all wanted this house” and “we’re in it together,” and then told Weir to help him move the body to the steps.  At the defendant’s urging, Weir helped move the victim down the front stairs, which were infrequently used.  Weir testified that he only helped with the first few steps before he “[c]ouldn’t do it” anymore.  The trio got in the defendant’s vehicle and Anthony drove Weir home.  During the ride, the defendant said that they needed to “bury the stuff” — referring to the frying pan and tea kettle used in the attack, and a floor mat, some pot holders, and a newspaper from the victim’s house — at Meadowbrook Pond in Norton.

Anthony and the defendant later returned to the victim’s home; just before midnight, a 911 call was placed reporting that an elderly woman had fallen down.  When the police arrived, the deceased victim was lying at the bottom of the stairs.  Anthony and the defendant were upstairs in the victim’s home.  The defendant had a welt on his nose, fresh scratch marks on his right cheek, and a bite mark on his arm.  He explained to police that he received the injuries during a fight with Anthony the prior evening.

A State police trooper noted suspicious circumstances in connection with the claim that the deceased had fallen down the stairs, including dust covering the handrail, the absence of blood on the wallpaper or stairwell although the victim suffered significant blood loss, and a urine stain that was not anatomically correct for the position of the body.  Conversely, there were conditions consistent with a fall — the deceased was wearing footwear that was in “deplorable shape” and there was a large trash bag next to her that she could have been carrying at the time.[6]  He requested a full autopsy.

The medical examiner performed a rape kit to help to determine the cause of death, which included taking hair samples; DNA samples from the mouth, vagina, anal region, and anus; and fingernail clippings and scrapings.  He noted blunt trauma to the top of her head, a fracture of the seventh cervical vertebra, rib and clavicle fractures, and injuries to her left hand.  After determining that the majority of the victim’s injuries were consistent with a fall, he ruled the cause of death as blunt neck trauma and the manner of death as “fall down stairs.”[7]

The defendant told Weir, “We fooled everybody,” and told another friend that it was a “perfect crime.”  He gave friends varying explanations for the scratches on his face, telling some that he received the scratches during a fight with Anthony and others that his dog scratched him.

In March 2002, Anthony wrote two checks totaling $ 5,000 to the defendant and two checks totaling $ 8,000 to Weir.  He also purchased a truck for the defendant and spent approximately $ 50,000 on equipment for a band that Weir was in.  The three regularly stayed at the victim’s home until shortly before it was sold, in July, 2002.  Anthony received approximately $ 250,000 in proceeds from the sale.

In the summer of 2002, Weir was with a friend near Meadowbrook Pond and saw the frying pan, the tea kettle, two pot holders, and the welcome mat out in the open.  After telling the defendant about what he had observed, the two went to Meadowbrook Pond and the defendant threw the objects in the water.

In October, 2002, Weir’s close friend, James Morel, commented that it was a “coincidence that [the victim] wound up the same way [the defendant] said she was going to.”  Weir then told Morel about the murder.  Morel alerted the Norton police to the information he had received about the victim’s death.  State police Trooper Brian Brooks met with Morel and asked him to wear a wire and meet with Weir again.  Morel agreed.  When Morel next met with Weir, the police followed them for three hours and recorded the pertinent parts of their conversation.

During the meeting, Weir told Morel that the defendant had killed the victim, and although he helped move the body and clean up, he did not participate in the killing.  Weir guided Morel to Meadowbrook Pond and pointed to the location where the items were disposed of after the murder.  Morel later accompanied police to the pond and the police recovered a welcome mat, two pot holders, the top of a tea kettle, and newspaper with a December, 2001, date.  Subsequently, the police drained the pond and found a tea kettle and a bent frying pan.

Based on this information, Weir and the defendant were arrested on October 25, 2002, and charged with murder in the first degree.  Weir agreed to cooperate with police in exchange for having his charge reduced to manslaughter with a prison sentence of ten years.

DNA profiles for the defendant, Weir, Anthony, and Morel were compared to male DNA found on three samples from the victim’s rape kit:  fingernail scrapings, fingernail clippings, and a perianal swab.  In the initial testing, all four were excluded as contributors to the perianal swab, which had been contaminated with male DNA from the State police crime laboratory.  Weir, Anthony, and Morel were excluded as contributors to the fingernail scrapings and the fingernail clippings, but the defendant could not be excluded from either.

The defendant testified that Weir killed the victim and that he received the injuries observed by police the night of the murder when he attempted to intervene on the victim’s behalf.  His stepsister testified to examples of Weir’s behavior that made her nervous and his stepfather testified to numerous arguments between Weir and the defendant.

Discussion.  1.  Standard of review.  The primary issue at trial was whether the defendant or Weir killed the victim.  On appeal, the defendant does not contest the sufficiency of the evidence at trial.  Rather, he contends that because the asserted trial errors deprived him of a fair trial and that trial counsel provided ineffective assistance, the judge wrongly denied his motion for a new trial.

Where the defendant’s appeal from the denial of his motion for a new trial has been consolidated with his direct appeal, we review both pursuant to G. L. c. 278, § 33E.  Commonwealth v. Lessieur, 472 Mass. 317, 323, cert. denied, 136 S. Ct. 418 (2015), citing Commonwealth v. McGee, 467 Mass. 141, 145 (2014).  Under § 33E, we review the denial of the defendant’s new trial motion “to determine whether there has been a significant error of law or other abuse of discretion,” McGee, supra at 146, quoting Commonwealth v. Robideau, 464 Mass. 699, 702 (2013), and whether any such error creates a substantial likelihood of a miscarriage of justice.  See Commonwealth v. Leng, 463 Mass. 779, 781 (2012).

Where the defendant’s claims are based on ineffective assistance of counsel, and none of the asserted errors was preserved at trial, our § 33E review does not consider “the adequacy of trial counsel’s performance” under the rubric of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).  Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).  Instead, we give the defendant the benefit of a more lenient standard that focuses more narrowly on whether there was error and, if so, whether any such error “was likely to have influenced the jury’s conclusion.”  Id.  The burden of proving ineffectiveness rests with the defendant.  See Commonwealth v. Montez, 450 Mass. 736, 755 (2008), citing Commonwealth v. Comita, 441 Mass. 86, 90 (2004).

2.  DNA evidence.  Relying on Commonwealth v. Mattei, 455 Mass. 840, 851-853 (2010), in which we held that nonexclusion DNA results must be presented with statistics explaining the significance of that evidence, the defendant challenges the admission of the polymerase chain reaction (PCR) and Y-chromosome short tandem repeat method (Y-STR) results.  He argues that the DNA evidence was erroneously admitted under Mattei because the PCR result was admitted without any accompanying statistical references to the significance of the results, and the Y-STR evidence was admitted with inadequate statistical information.  He contends also that the prosecutor compounded these errors by misstating the DNA evidence in the opening statement and closing argument.  In addition, the defendant argues that his counsel provided ineffective assistance in connection with the admission of the DNA evidence.  More specifically, he contends that defense counsel was ineffective for failing adequately to inform himself about the admissibility of such evidence, failing to object to or otherwise seek exclusion of the evidence, and failing to cross-examine the Commonwealth’s DNA expert competently.

a. DNA evidence at trial.  At trial, Jeffrey Hickey, a former DNA analyst with Cellmark Diagnostics laboratory, which later became Orchid Cellmark (Cellmark), testified that the defendant could not be excluded as a contributor to DNA samples taken from the victim’s fingernail scrapings and fingernail clippings.  He analyzed the DNA using two methods.  First, he performed PCR testing, which compares thirteen regions of the DNA taken from the victim against submitted profiles to establish primary and secondary profiles and determine whether a suspect could be excluded as a contributor.  Because the PCR test results were inconclusive for the fingernail clippings, Hickey also performed Y-STR testing, which separates male DNA and is frequently used when the analyst is unable to create a primary profile from the mixture of male and female DNA.

From the fingernail scrapings, PCR testing showed that the sample was a mix of male and female DNA, the primary DNA profile was from the victim, a “few secondary types” of DNA were located, and the defendant “could not be excluded as a potential source” of those secondary profiles.  Hickey did not provide statistical information to demonstrate the relevance of this nonexclusion PCR evidence, explaining that Cellmark does not provide statistics on secondary profiles.

From the fingernail clippings, PCR testing was inconclusive in that no primary or secondary profiles could be determined.  Once Hickey extracted only the male DNA, however, he was able to produce a Y-STR profile containing twelve regions of DNA.  He testified that the male profile created from Y-STR testing “came back to match [the defendant] at all of those regions that we tested.”  Hickey provided context for this result through statistical analysis, wherein he compared the results of the Y-STR testing to a database of known DNA profiles and determined that the profile occurred in one out of 1,311 Caucasian males, and zero out of 1,108 African-American males, and zero out of 894 Hispanic males.  He explained that Y-STR statistics are “quite different” from PCR results — where you can see numbers in the “billions [or] trillions.”  In PCR testing, “a match across all of those regions” would allow an expert to opine with a reasonable degree of scientific certainty that a DNA profile belongs to a specific person.  Conversely, with Y-STR testing, DNA results cannot discriminate among members of the same paternal line and the statistical likelihood is never any greater than the database available for comparison.

Hickey also testified to contamination of the perianal swab.  Specifically, he stated that the defendant, Weir, Anthony, and Morel were excluded as sources of DNA.  Because the swab did not match any of the submitted male profiles, the State police crime laboratory asked Hickey to analyze whether the sample could have been contaminated by employees of Cellmark or the crime laboratory.  The swab was consistent with the DNA profile of a male employee working at the crime laboratory.  The contaminating employee testified that he had handled all samples that were taken from the victim.  Additionally, the employee explained a pretrial revision to his DNA analysis.  He testified that he first identified the presence of seminal fluid from the vaginal and perianal swab.  However, he later updated his findings to identify the fluid as P-30, which is a protein that can be found in urine.

Trial counsel’s cross-examination of Hickey focused on the contamination and Hickey’s testimony at trial that the defendant “matches” the Y-STR profile, noting that Hickey stated in his report that the defendant could not “be excluded” as a source of the DNA in the fingernail scrapings, not that there was a match.  Counsel’s cross-examination of the crime laboratory employee highlighted the contamination and change in identification from seminal fluid to the P-30 protein.

The prosecutor commented on the DNA evidence in her opening statement and closing argument.  In her opening statement, she told the jury that the evidence would prove that the defendant was the “major contributor” to the right fingernail clippings and that Weir and Anthony were excluded.  In her closing, she argued that Weir and Anthony were excluded as contributors under both tests, and that the defendant could not be excluded from either.  She continued that the reference to nonexclusion was a matter of “semantics,” because Cellmark does not “use the term ‘match’” for Y-STR testing, but “if you look at it, you’ll see all the numbers from [the defendant] correspond to the fingernail clippings.”

b.  Posttrial DNA evidence.  At the motion hearing, the defense presented testimony from Dr. Michael J. Bourke, a forensic scientist retained in 2005 by trial counsel and in 2009 by postconviction counsel, and from trial counsel for the defendant.  Dr. Robin Cotton, the former Cellmark laboratory director, testified for the Commonwealth.

As to the PCR evidence from the fingernail scrapings, the defendant argued that it was error to admit the evidence without statistics.  In that regard, the defense presented evidence that Bourke alerted trial counsel in a pretrial memorandum to the lack of statistics, advised that “the correct statistic to perform on mixed samples is the combined probability of inclusion,” and questioned the admissibility of such evidence without statistics.  The memorandum noted that the statistical information was important because the “small to limited number of loci . . . , and the fact that these loci are mixtures, will result in very modest random match probabilities.”  Cotton likewise testified that testing only a “few” loci could provide probabilities that are “very much smaller” than the large numbers calculated using a full profile.  She also testified that statistical information could have been provided at the time of the 2006 trial if requested; however, the information was not routinely provided when the applicable report was written.

As to the Y-STR results, the defendant argued that DNA results from the Y-STR testing were erroneously admitted without a “confidence interval” allowing for population frequency calculation.  The results were presented using a method known in the field as the “counting method,” which describes the frequency in which a DNA match is found in a given database.  A “confidence interval” adjusts that result to account for sampling errors and identical profiles being passed through a paternal line, and thus increases the likelihood that the same profile could be found in a population.[8]  See Scientific Working Group on DNA Analysis Methods, Y-Chromosome Short Tandem Repeat (Y-STR) Interpretation Guidelines, 11 Forensic Science Communications, Federal Bureau of Investigations (Jan. 2009) at § 5.3 (Y-STR Guidelines).  Bourke testified that the counting method results “would be misleading without the confidence interval correction.”  He did not advise counsel about Y-STR deficiencies, but testified that he would have had he been asked.  Cotton testified that a confidence interval could have been calculated at the time of trial, but Y-STR testing was in its infancy at the time of the 2005 report and Cellmark’s policy did not provide for such a calculation.

The motion judge rejected the defendant’s claims, concluding that the defendant had failed to demonstrate that any attempt to exclude the DNA evidence would have been successful because the defendant did not establish that the Commonwealth, if challenged, would have been unable to provide the requested statistical information for either the PCR or Y-STR results.  The judge concluded that trial counsel was not ineffective because questioning the DNA evidence was not likely to accomplish “something material for the defense” in light of the defense theory that Weir, not a stranger, was the real culprit, and the case “did not hinge on DNA evidence.”  Additionally, although the judge found that the prosecutor did misstate the evidence, he concluded that the error was unlikely to have influenced the jury’s conclusion where the evidence was “not central to the Commonwealth’s case.”

c.  Analysis of the DNA claims.  Although Mattei was decided four years after the trial in this case, our holding was based on reasoning that dated back to 1991, when we required that DNA results indicating a DNA “match” include accompanying evidence of the likelihood of that “match” occurring.  See Mattei, 455 Mass. at 850, citing Commonwealth v. Curnin, 409 Mass. 218, 222 n.7 (1991).  We held that it was error to present nonexclusion DNA results from PCR testing without statistics, especially where the jury heard evidence of “match” statistics placing the likelihood of occurrence in the quadrillions and quintillions, because the jurors could be misled into thinking that the nonexclusion DNA results are similarly conclusive.  Mattei, supra at 848 n.17, 853.  We explained that DNA evidence is “of little or no value without reliable evidence indicating the significance.”  Id. at 850-851.  Moreover, we noted that nonexclusion evidence presented without statistics could be even more prejudicial than match evidence because jurors could be misled into thinking that nonexclusion results are as significant as the large numbers typically applicable to match results.[9]  Id. at 856.

i.  PCR evidence.  We first review the defendant’s claim that it was error to admit the nonexclusion results from the PCR evidence without statistical information providing context for that result.  The Commonwealth argues that there was no error because counsel made a reasonable tactical decision not to challenge the DNA evidence and, even if it was unreasonable, statistical information could have been provided had the DNA evidence been challenged on that ground.  We agree with the defendant and reject the Commonwealth’s argument for two reasons.  First, Hickey testified at trial that there were only “a few secondary types” of DNA identified by the PCR testing.  Although neither side presented evidence at the hearing on the motion for a new trial of what the actual statistics in this case would show, both experts agreed that the frequency of a random match probability based on the limited number of loci available in this case would be “modest” or small.  Where the jury heard evidence that PCR testing could result in “numbers in the billions, trillions,” but did not hear that the results in this case (with less than a full profile) could be significantly less, we cannot say that it was reasonable not to explore the actual statistics before making a decision whether to challenge the evidence.  Second, even if the Commonwealth could have provided statistics had the DNA evidence been challenged on that ground, defense counsel “might have accomplished something material for the defense” by challenging the evidence — namely, the jury would have been presented with statistical evidence of small probabilities instead of an inference that the numbers could be “in the billions, trillions,” or the evidence would have been excluded.[10]  See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).  See also Mattei, 455 Mass. at 856.

Because this error is intertwined with the defendant’s other challenges relating to the DNA evidence, we reserve our discussion regarding prejudice until after we discuss the remaining claims.

ii.  Y-STR evidence.  The defendant next argues that the Y-STR results should not have been admitted without a confidence interval.  We disagree.  Our case law requires that nonexclusion DNA evidence be presented to a jury with “reliable accompanying evidence as to the likelihood that the test could not exclude other individuals in a given population” so that the jury can “evaluate the meaning of the result.”  Mattei, 455 Mass. at 852.  See Commonwealth v. Evans, 469 Mass. 834, 851-852 (2014) (applying Mattei to Y-STR testing).  This requirement was satisfied because the counting method was a reliable method for providing such evidence at the time of trial.[11]  Although guidelines now suggest the use of a confidence interval to make the statistics from the counting method more conservative, see Y-STR Guidelines, supra,[12] the counting method as explained in Hickey’s trial testimony provided sufficient context for the results.

Hickey provided context for the Y-STR nonexclusion result by providing the database frequency counts to the jury and explaining that “count” information is limited because it is only as good as the entries in the database and a Y-STR profile is identical through a paternal line.  Although a confidence interval is more favorable to defendants because it corrects for limitations with the counting method,[13] the “count” evidence was not unreliable, nor was it likely to mislead jurors into thinking that the probability of another person contributing the male DNA in the fingernail clippings was diminutive.  The purpose of requiring statistical evidence is to allow the jury to evaluate the significance of DNA results.  Evans, 469 Mass. at 851, quoting Commonwealth v. Bizanowicz, 459 Mass. 400, 409-410 (2011).  There was no error because the “count” evidence provided the required context.[14]

iii.  Prosecutor’s statements regarding DNA evidence.  We agree with the motion judge that the prosecutor misstated evidence in her opening statement and closing argument.  The prosecutor’s assertion in the opening statement that the defendant could not “be excluded” as the “major contributor” to the fingernail clippings was inconsistent with Hickey’s testimony that the defendant could not be excluded as a contributor to the mixed profile.  Likewise, the claim in the closing argument that the difference between nonexclusion in Y-STR testing and a “match” is a “matter of semantics” conflicted with Hickey’s testimony.  Hickey explained to the jury the meaning of “nonexclusion” in Y-STR testing by describing the significant limitations that are not applicable to PCR testing, where the word “match” is used.  The defendant did not object, and the jury were instructed that the opening statement and closing argument were not evidence.

iv.  Cross-examination regarding DNA evidence.  We reject the defendant’s claim that trial counsel’s cross-examination regarding the DNA evidence was ineffective.  Counsel testified that he “completely shifted focus” from the lack of statistics accompanying the PCR results because Bourke told him that the defendant’s DNA was found on the samples.[15]  Instead, he made a tactical decision to highlight mistakes in investigation, such as contamination, and to argue that the DNA found on the victim did not belong to the defendant.[16]  We review a tactical or strategic decision by trial counsel to determine whether the decision was “‘manifestly unreasonable’ when made.”  Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting Commonwealth v. Acevedo, 446 Mass. 435, 442, 845 (2006).  There were significant concerns with the evidence that counsel could have highlighted — contamination and initial findings of seminal fluid that were later revised — and counsel was faced with the damaging fact that his client could not be excluded as a contributor of the DNA found on the victim’s fingernails while Weir, the only third-party culprit in the case, was excluded.  We determine whether a decision was manifestly unreasonable by “search[ing] for rationality in counsel’s strategic decisions, taking into account all the circumstances known or that should have been known to counsel in the exercise of his duty to  provide effective representation to the client and not whether counsel could have made alternative choices.”  Kolenovic, 471 Mass. at 674-675, citing Commonwealth v. Walker, 443 Mass. 213, 227-228 (2005).  Although the PCR evidence should not have been admitted without statistics, counsel was not ineffective for failing to cross-examine on this issue or about the Y-STR results in light of the advice he had received from his expert and the risk of highlighting the DNA evidence after Weir was excluded as a contributor.[17]

v.  Prejudice.  Although the admission of the PCR results without statistics was erroneous, the defendant is not entitled to a new trial on this ground.  The defendant argues that he was prejudiced because the PCR evidence without statistics created a grave risk of misleading the jury into believing that the defendant was the only possible contributor of the male DNA found on the victim’s fingernail scrapings and that landscaping activities or her physical contact with others as a former hairdresser were other possible explanations.  Applying the test “whether [the] error was likely to have influenced the jury’s conclusion,” Wright, 411 Mass. at 682, the defendant’s claim of prejudice is easily dismissed.  The possibility that the DNA evidence could have come from an unknown third party was of limited value where the defendant named Weir as the culprit and where fresh scratches on the defendant’s face the night of the murder supported an inference that it was actually the defendant’s DNA that was found on the victim’s fingernails.  Both the PCR evidence and the properly admitted Y-STR evidence excluded Weir as a contributor to any of the DNA found on the victim.  Thus, we can discern no prejudice where the result of any confusion that could have occurred was of limited value to the defendant and, more importantly, the Commonwealth presented substantial other evidence against the defendant.

The defendant argues that the erroneously admitted DNA evidence was “critical” because it corroborated Weir’s testimony naming the defendant as the killer and, for that reason, was prejudicial.  We disagree.  First, the defendant gave a version of the cause of the scratches on his face to police on the night of the murder that was different from the one he testified to at trial.  See Commonwealth v. Montecalvo, 367 Mass. 46, 52 (1975) (intentionally false and misleading statements to police demonstrate consciousness of guilt).  Additionally, the defendant, not Weir, said prior to the murder that he could kill the victim in a manner that was almost exactly the same way that she died.  The defendant told another friend after the murder that it was a “perfect crime.”  Lastly, it was the defendant, not Weir, who was present at the victim’s apartment when the police arrived on the night of the murder.  Unlike Mattei, 455 Mass. at 856, where the DNA evidence was “crucial,” the Commonwealth provided strong corroborative evidence that the defendant had committed the murder.  Accordingly, there was no substantial likelihood of a miscarriage of justice.

The prosecutor’s misstatements, which insinuated to the jury that the probability of “nonexclusion” in Y-STR results was as significant as a “match” in PCR results, compounded the error in the admission of the PCR results but added nothing to the prejudice calculus sufficient to raise it to a level that would entitle the defendant to relief.  In reviewing whether a prosecutor’s misstatements require reversal, we consider “(1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave to the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury’s conclusion.”  Commonwealth v. Wood, 469 Mass. 266, 285 (2014), quoting Commonwealth v. Lewis, 465 Mass. 119, 130-131 (2013).  Here, the prosecutor’s misstatements do not require reversal because trial counsel did not object, the judge’s instructions mitigated the errors, and the comments were not likely to influence the jury’s conclusion where, as the motion judge found, this “case did not hinge on the DNA evidence.”  See Wood, supra.

3.  Admission of Weir’s prior consistent statements.  The defendant argues that trial counsel was ineffective in introducing the audiotapes between Weir and Morel,[18] which included statements made by Weir naming the defendant as the assailant, asserting that he was “in shock” during the attack because he never expected it to happen, and limiting his role to moving the victim down the stairs and helping to clean up.  Moreover, Weir indicated on the tape that the defendant suggested another murder.  In his motion for new trial, the defendant argued that “the tapes added nothing by way of impeachment, other than showing Weir’s tone of voice,” because trial counsel effectively cross-examined Weir prior to playing the tapes.  The motion judge rejected the defendant’s claim, concluding that it was not manifestly unreasonable to introduce the tapes because “some, if not all, of Weir’s statements” would have been admissible after the defendant opened the door through impeachment.  On appeal, the defendant concedes that the tapes were “unflattering” to Weir and therefore disputes that it was inevitable that the prosecutor would have played the tapes.

“Impeachment of a witness is, by its very nature, fraught with a host of strategic considerations, to which we will, even on § 33E review, still show deference.”  Commonwealth v. Hudson, 446 Mass. 709, 715 (2006), quoting Commonwealth v. Fisher, 433 Mass. 340, 357 (2001).  “Failure to use a particular method of impeachment does not constitute ineffective assistance of counsel.”  Commonwealth v. Johnston, 467 Mass. 674, 696 (2014).  “[A]bsent counsel’s failure to pursue some obviously powerful form of impeachment available at trial, it is speculative to conclude that a different approach to impeachment would likely have affected the jury’s conclusion.”  Hudson, supra, quoting Fisher, supra.

Trial counsel explained that he made a tactical decision to introduce the entirety of the tapes because he thought it was important for the jury to hear Weir “bragging about what a good liar he was and how he could beat a polygraph,” and to “hear the inflection in his voice” when talking about the murder — that he “laughed” and “joked” about the killing.[19]  We agree with the motion judge that counsel’s decision was not manifestly unreasonable.  The Commonwealth’s case hinged on Weir’s testimony as it was undisputed that only three people were present at the time of the murder — the defendant, Weir, and the victim — and the defendant and Weir were each pointing the finger at the other.  Thus, impeaching Weir’s version of events was paramount to the defendant’s case.

The tapes allowed trial counsel to impeach Weir in multiple ways.  First, the tapes impeached Weir’s credibility through specific examples of Weir’s prior misconduct that may not otherwise have been admitted.  For example, Weir told Morel that he stole $ 250 per day while working at a doughnut shop.[20]  The prosecutor objected to playing the full tapes on this ground, but the trial judge admitted the evidence because trial counsel made the tactical decision to offer bad acts of both the defendant and Weir that were discussed on the tapes.  Although “specific acts of misconduct of a witness, not material to the case in which [he] testifies, are ordinarily inadmissible on cross-examination to impeach [his] credibility,” Commonwealth v. Martin, 467 Mass. 291, 310 (2014), citing Commonwealth v. LaVelle, 414 Mass. 146, 151 (1993), admissibility “lies in large measure in the discretion of the trial judge,” LaVelle, supra at 152, quoting Commonwealth v. McGeoghean, 412 Mass. 839, 841 (1992).  Although trial counsel impeached Weir with this information before playing the tapes, the trial judge had allowed the bad act evidence because of counsel’s decision to play the tapes in full.[21]

Next, the tapes revealed the inflection in Weir’s voice when talking about the murder and Weir’s boasting about his ability to lie.  For example, Weir testified that he only helped move the victim’s body down a couple of the stairs before telling the defendant, “I’m not doing this, man, this is all you”; but he told Morel that moving the victim’s body downstairs was “just like lugging a fuckin’ bag of potatoes.”   Additionally, Weir told Morel that he could pass a polygraph test by “creat[ing] an alternative persona,” becoming “a different person,” and training to “make yourself believe that you’re someone else.”

The defendant argues that the prior consistent statements strongly bolstered Weir’s credibility because the statements were made to a friend.  Offsetting that consideration, however, was evidence contained on the tapes demonstrating Weir’s motive to lie to Morel.  Weir told Morel that he was asked whether he and the defendant “killed a lady and then threw her down the stairs,” a question he suspected arose from Anthony telling a friend about the murder.  Considering that Weir told Morel numerous times that there was no proof he was at the victim’s home the day of the murder, and he could only get caught if one of the three started talking, the rumor implicating Weir in the murder provided motive to diminish his involvement.[22]

The defendant also takes issue with trial counsel playing the portion of the tape containing Weir’s statement that the defendant suggested murdering a “bum.”  The context of this statement, however, is just as, if not more, harmful to Weir as the defendant because Weir immediately followed that statement with the admission that he, not the defendant, then assaulted the individual.

Although the tapes included statements detrimental to the defendant and Weir’s prior consistent statements, they provided numerous benefits for impeaching Weir’s version of events, and counsel’s strategic choice of method for impeachment was not manifestly unreasonable.  See Johnston, 467 Mass. at 696.

4.  Admission of Weir’s unredacted plea agreement.  At the start of the trial, the judge granted the defendant’s motion to redact the word “truthfully” from Weir’s plea agreement in two out of three instances.  During trial, however, trial counsel introduced the unredacted plea agreement, noting that he would not publish it to the jury until it was properly redacted.  The final version submitted to the jury did not have “truthfully” redacted.  The judge instructed the jury at least twice that it was the jury’s responsibility to determine whether Weir was truthful, regardless of the fact that Weir made an agreement to be “truthful.”

The defendant argues that the unredacted plea agreement violated his right to a fair trial under the Sixth Amendment to the United States Constitution by providing “extraneous matter” to the jury and that trial counsel was ineffective in this respect.  The Commonwealth does not dispute that failure to redact was an error, but argues that the error did not prejudice the defendant.  See Commonwealth v. Ciampa, 406 Mass. 257, 262 (1989) (“Repeated references to [a] witness’s obligation to tell the truth should [be] deleted” from plea agreement).

The defendant’s arguments are unavailing.  The two references to “truthful” were not extraneous because they were cumulative of the one permissible reference.  See Commonwealth v. Greineder, 458 Mass. 207, 247-248 (2010), remanded by 133 S. Ct. 55 (2012), aff’d, 464 Mass. 580 (2013) (information not extraneous when cumulative of evidence at trial).  Moreover, any prejudice created by the error was minimized by the judge’s clear and forceful instructions to the jury that it was “solely for the jury to determine” credibility and “whether Mr. Weir’s testimony [was] truthful or not.”  See Commonwealth v. Marrero, 436 Mass. 488, 502 (2002) (“effect of [clear and forceful] charge was to dispel any implication inherent in the agreement that the prosecutor warranted that [the witness] was telling the truth”).  Accordingly, there was no substantial likelihood of a miscarriage of justice created by the failure to redact the two extra references to “truthful” on Weir’s plea agreement.  Id.

5.  Testimony regarding the defendant’s bad acts.  The defendant next argues that the prosecution improperly attacked his character through bad act evidence and that counsel was ineffective for failing to object.  The defendant points to two specific examples:  (1) several witnesses testified, in essence, that the defendant, Anthony, and Weir “trashed” the victim’s home after her death and it became in “disarray”; and (2) the victim’s sister-in-law, who was seventy-eight years old at the time of trial, testified that the defendant told her to go “f” herself.

Although evidence of prior or subsequent bad acts “may not be offered to prove bad character or criminal propensity, such evidence may be admitted for another purpose where its probative value is not substantially outweighed by the danger of prejudice.”  Commonwealth v. Holliday, 450 Mass. 794, 815, cert. denied, 555 U.S. 947 (2008), citing Commonwealth v. Stroyny, 435 Mass. 635, 641 (2002).  See Commonwealth v. Source One Assocs., 436 Mass. 118, 129 & n.13 (2002) (principles regarding prior bad act evidence applicable to subsequent acts).  Bad act evidence may be admitted to show “a common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive.”  Commonwealth v. Gollman, 436 Mass. 111, 113-114 (2002), quoting Commonwealth v. Helfant, 398 Mass. 214, 224 (1986).  Postcrime conduct “must be connected with the facts of the case or not be too remote in time” to be sufficiently probative.  Commonwealth v. Cardarelli, 433 Mass. 427, 434 (2001), quoting Commonwealth v. Barrett, 418 Mass. 788, 794 (1994).

Without deciding whether the trial judge would have sustained an objection to this evidence, the motion judge concluded that trial counsel was not ineffective for failing to object because the evidence “could not have had appreciable significance to the jury’s verdict” in light of the evidence concerning the “brutal killing of an eighty-four year old woman in her home and [the defendant’s] methodical actions to make her death seem accidental.”  We agree.

We discern no error in admission of evidence of the condition of the victim’s home and the handling of her personal possessions.  See Commonwealth v. Mendes, 441 Mass. at 466-467 (postcrime spending habits relevant to motive and ability to “pursue . . . lifestyle freely” after obtaining “control of her inheritance”).  Moreover, the evidence was correspondingly damaging to Weir.  The neighbors testified that they often saw the defendant and Weir staying at the home after the murder and indicated that both were responsible for the damage.  We assume, without deciding, that the admission of the defendant’s statement to the victim’s sister-in-law was error.[23]  We agree, however, with the motion judge that this singular comment was not likely to affect the jury’s verdict where, in addition to evidence of the brutal killing, the jury heard evidence that the defendant called the victim a “bitch,” a “cunt,” and a “douchebag,” and that he made jokes about her death.

6.  Defendant’s decision to testify.  The defendant argues that it was manifestly unreasonable for trial counsel to advise him to testify because testifying allowed impeachment through evidence of prior inconsistent statements he made the night of his arrest.  Counsel acknowledged he was aware of the statements but advised the defendant to testify because he believed the defendant was innocent and it was the only way to fully present the defense that Weir had committed the murder.  The motion judge rejected the defendant’s claim because of the “strength” of the Commonwealth’s case.

Where the Commonwealth has a strong case against the defendant and advising the defendant to testify may provide the only “realistic chance” at acquittal, such advice is not manifestly unreasonable.  See Commonwealth v. Sharpe, 454 Mass. 135, 147 (2009).  Additionally, trial counsel testified at the motion hearing that he had had many conversations with the defendant about whether to testify and that the defendant decided to testify after counsel advised him that it was ultimately his decision.  The defendant’s informed and voluntary decision to testify undermines his claim.  Commonwealth v. LaCava, 438 Mass. 708, 716 (2003).  Advising the defendant to testify to his version of events was not manifestly unreasonable where compelling evidence corroborated Weir’s version.

7.  Prior consistent statements.  The defendant testified that he told three friends that Weir had killed the victim.  During a voir dire, one of those friends testified that the defendant said, “[Weir] did it,” in front of her and another of the friends during the month following the murder.[24]

The defendant argues that trial counsel was ineffective for failing to call two of the friends as surrebuttal witnesses to testify to the defendant’s prior consistent statements.  Counsel testified at the motion hearing that he thought that the witnesses, based on their trial testimony, may be hostile to the defendant.  He conceded however, that the decision not to call them was not well thought out.  The motion judge rejected the defendant’s claim after finding that the decision was strategic and concluded that it was not manifestly unreasonable.  We agree.

8.  Cumulative effect of the asserted errors.  Last, the defendant contends that even if the asserted errors do not warrant reversal of his convictions when considered independently, their combined effect nonetheless gives rise to a substantial likelihood of a miscarriage of justice.  We reject this argument.  Even if we were to agree that all of the challenged evidence should not have been admitted, the Commonwealth presented other substantial evidence corroborating Weir’s testimony:  the defendant’s presence at the victim’s home the night of the murder; the scratches on his face and varying explanations for the cause; his frequent precrime references to killing the victim, sometimes stating the exact method that occurred; and his postcrime statement that it was the “perfect crime.”

9.  Relief pursuant to G. L. c. 278, § 33E.  We have examined the record pursuant to our duty under G. L. c. 278, § 33E, and we discern no basis on which to grant the defendant relief.

Conclusion.  The judgment of conviction of murder in the first degree is affirmed.  The order denying the defendant’s motion for a new trial is also affirmed.

So ordered.

Full-text Opinions

Appendix.

Diagram of boom lift (from trial exhibit 28, modified to omit labels from parts not discussed in opinion)

Photograph of boom lift (from trial exhibit 26, manufacturer’s brochure)

Illustration of boom lift’s “working envelope” (from trial exhibit 26, manufacturer’s brochure)

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-1642                                       Appeals Court

GEORGE EVANS  vs.  MAYER TREE SERVICE, INC., & others.[1]

No. 14-P-1642.

Worcester.     September 9, 2015. – March 3, 2016.

Present:  Meade, Wolohojian, & Milkey, JJ.

Practice, Civil, Summary judgment, Relief from judgment. Commissioner of the Department of Conservation & Recreation.  Trespass.  Real Property, Trespass, Removal of timber.  Nuisance.  Consumer Protection Act, Insurance, Unfair act or practice.  Insurance, Unfair act or practice.

Civil action commenced in the Superior Court Department on January 31, 2011.

The case was heard by Daniel M. Wrenn, J., on motions for summary judgment, and a motion for relief from judgment was also heard by him.

E. Douglas Sederholm for the plaintiff.
Denise M. Tremblay for Mayer Tree Service, Inc.
James T. Scomby for Marquis Tree Services, Inc.

Elizabeth W. Morse for Farm Family Casualty Insurance Company.

     MILKEY, J.  In August of 2008, an invasive, wood-boring insect known as the Asian longhorned beetle (ALH beetle) was discovered in the Worcester area.  The ALH beetle infests particular types of hardwood trees (host trees) that die as a result.  Federal and State officials mobilized quickly to address the problem.  Under the plans that they jointly developed and implemented, host trees that showed tell-tale signs of infestation were to be destroyed, together with those additional host trees that were deemed to be at high risk of infestation.  The actual tree removal work was to be done by State contractors (and their subcontractors).

The plaintiff, George Evans, owns property at 14 Randolph Road in Worcester, where he lives with his wife.  There were numerous host trees at his property, including Norway maples.  It is uncontested that in February of 2009, defendant Marquis Tree Services, Inc. (Marquis),[2] entered Evans’s property and destroyed at least twenty-one Norway maples there at the specific direction of a Federal field inspector who mistakenly believed that Evans had given written permission to have all host trees on his property destroyed.

The principal question before us is whether, under the particular circumstances presented, Marquis can be liable pursuant to G. L. c. 242, § 7, for destroying Evans’s trees “without license” to do so.  On cross motions for summary judgment, a Superior Court judge ruled in the defendants’ favor in a detailed and thoughtful decision.  Because we conclude that material facts remain in dispute that preclude entry of judgment as a matter of law, we vacate the judgment.

Background.  1.  The Legislative response to the ALH beetle.  According to documents in the record, the ALH beetle has the potential to devastate forestry and related industries if it is not contained.  By emergency statute enacted on January 13, 2009, the Legislature declared the ALH beetle to be a public nuisance, and it provided the Department of Conservation and Recreation (DCR) broad authority to address the problem.  See St. 2008, c. 493, § 1, amending G. L. c. 132, § 11.  This included authority to “enter upon any land . . . for the purpose of determining the existence, over-all area and degree of infestation or infection caused by the public nuisances named in section eleven [including ALH beetles, and] suppressing and controlling said public nuisances.”  G. L. c. 132, § 8, as amended through St. 1956, c. 657, § 2.  The statute also gave DCR general authority to “make use of and require the use of all lawful means of suppressing such public nuisances.”  G. L. c. 132, § 11.[3]

2.  DCR general orders.  On August 8, 2008, that is, even before the Legislature declared the ALH beetle to be a public nuisance, DCR issued a general order addressing its plans to eradicate the ALH beetle from Massachusetts.  That order applied to a specifically designated area of central Massachusetts referred to as “the Affected Area.”  In addition to strictly regulating the transport of firewood and certain other materials from host trees inside the Affected Area, the order stated that

“DCR may authorize, under separate agreements, DCR’s duly authorized agents or designees . . . to enter upon the Affected Area and undertake activities necessary for suppressing, controlling and eradicating [the ALH beetle], including removing or causing to be removed, and the destruction thereof, all Regulated Articles,[[4]] within the Affected Area that are, may be or have the potential to be infested or infected by [the ALH beetle].”

The order went on to state that “[w]hile DCR seeks to implement this Order to ensure eradication of [the ALH beetle], DCR plans to do so in a reasonable manner, to the extent possible, to minimize impacts to private property.”  Amended orders were issued from time to time in order to expand the geographical scope of the Affected Area.[5]

3.  Tree marking and removal protocols.  Working in partnership with the Animal and Plant Health Inspection Service (APHIS) within the United States Department of Agriculture (USDA), DCR developed protocols through which the agencies would pursue their eradication goals.  The first step in the process was to survey trees in areas known or suspected to be infested to look for outward signs of infestation, such as “an exit hole or an egg-laying site on [the tree] or an actual live beetle.”  Trees that revealed such signs were marked with red paint.  Host trees that did not show signs of infestation were marked with blue paint.  Thus, host trees marked with red paint (hereinafter, red-marked trees) were known to be infested, while host trees marked with blue paint (hereinafter, blue-marked trees) were not.  Blue-marked trees were at risk of becoming infested, especially to the extent they were in proximity to where infestation had been found.[6]

From the beginning of the ALH beetle eradication program, red-marked trees were slated for destruction, specifically, through their being cut down and then chipped into small pieces.  The fate of individual blue-marked trees depended on the particular degree of risk they posed.  It appears that some blue-marked trees could be treated with chemicals while others presented such unacceptably high risks that they would have to be destroyed.[7]  As discussed below, a DCR official provided deposition testimony that all host trees would have to be removed in a particular area of dense infestation.

4.  Individual tree removal orders.  In consultation with APHIS, DCR developed standard forms that would be sent to individual property owners in the event that trees “on or near the[ir] premises” were found to be infested.  One form, labeled a “tree removal” order, notified the owner that “[t]he . . . trees that have been previously marked with red paint (indicating an infested tree) on the above-referenced Premises are to be cut, removed and destroyed.”  With regard to blue-marked trees, the individual orders stated that such trees “may need to be removed and destroyed [and that] [i]f such a determination is made by USDA or DCR, notice will be provided in advance that such additional hardwood trees are subject to this Order.”

The individual tree removal orders also warned property owners that “[f]ailure to permit authorized contractors to perform the removal actions at the Premises, and any failure to otherwise comply with this Order, will result in the DCR seeking enforcement of this Order in Superior Court.”  By statute,

“[w]hoever knowingly resists or obstructs the [DCR] commissioner, any local superintendent or employee or authorized agent of any of them, while any of those persons is engaged in suppressing or eradicating the Asian longhorned beetle . . . shall be subject to a civil penalty of not more than $ 25,000 for each violation.”

G. L. c. 132, § 12, as amended through St. 2008, c. 493, § 2.

5.  Permission forms.  When DCR mailed individual tree removal orders to property owners, it enclosed a separate “acknowledgement and permission” form for property owners to sign.  Property owners signing that form would thereby be acknowledging that they had received the tree removal order and that they were granting permission to have trees “previously marked with red paint” destroyed.[8]  The form specifically informed property owners that blue-marked trees “are not required to be cut and removed at this time.”  However, property owners also were told they could opt to have their blue-marked trees cut, without cost to them.  Thus, property owners were presented with three options:  (1) they could give permission to have only red-marked trees on their property cut, (2) they could give permission to have both red-marked and blue-marked trees there cut, or (3) they could decline to sign the form (signifying that they had not given permission for the removal of any trees).

In the event that a property owner refused to sign the permission form, DCR escalated its efforts to persuade the owner to do so, and if necessary, DCR referred the matter to the Attorney General for enforcement.  At least on the record before us, there were only two occasions where DCR had to refer the matter to the Attorney General (both involving red-marked trees).  In both cases, DCR ultimately was able to obtain the owner’s permission without the need for a court order.

6.  Mapping of property owner consent.  The relevant officials used various geographic information system maps to track the extent to which property owners had permitted the removal of host trees from their property.  The properties for which owners had given permission to have only red-marked trees cut were shown in red (or pink), those who had given permission to have all marked host trees cut were shown in blue, and those who had not given permission were marked in white.

7.  The contracts.  DCR solicited bids for private contractors to do the actual tree removal work.[9]  Through that process, DCR awarded a bid to defendant Mayer Tree Service, Inc. (Mayer), who in turn awarded a subcontract to Marquis with DCR’s approval.  It is uncontested that the bid specifications were incorporated into Mayer’s contractual obligations with DCR, as set forth in the “notice to proceed.”  It is also uncontested that Marquis agreed to abide by those contractual obligations in its subcontract with Mayer.

The bid specifications to which Mayer and Marquis agreed required Mayer to “ensure that it performs its work in such a manner to ensure no damage to private and personal property contiguous to tree cutting activities, including those public and private trees designated to remain.”  Under the bid specifications, Mayer was prohibited from entering private property if it was not “in receipt” of written permission.[10]  Where a private party had given such written permission for Mayer to enter, Mayer agreed to hold that property owner harmless for any contractual breaches by it and for any negligent acts by it or its officers, employees, agents, or subcontractors.  Mayer was also required to carry significant amounts of comprehensive general liability insurance coverage for potential third-party personal injury and property damage claims.

8.  The cutting of Evans’s trees.  Various tree surveys were conducted of Evans’s property in 2008, including through the use of United States Forestry Service employees known as “smoke jumpers” who climbed the trees.  A total of thirty-six host trees were discovered there, including twenty-five Norway maples, nine Japanese maples, an American elm, and a white ash.  At least prior to February 9, 2009 (the first date that Evans alleges trees were cut on his property), no infested trees had been found there, and therefore none of Evans’s trees had been marked in red.  Ten of the thirty-six host trees, all Norway maples, were marked with blue paint as a result of the 2008 inspections.  No explanation appears in the record as to why the other host trees were not marked in blue at that time.

It is undisputed that Evans never signed a written permission form permitting the cutting of any trees on his property.  Nevertheless, Crystal Franciosi, the USDA inspector who was overseeing tree removal that day, mistakenly believed that Evans had granted permission to cut all host trees there.[11]  Franciosi directed Marquis to enter Evans’s property on February 10 and 11, 2009, and to destroy twenty-one Norway maples there.[12]  Ten days after his trees were cut, Evans received a removal notice and order in the mail, together with the permission form.[13]  These documents apprised Evans that he had the option of not having blue-marked trees removed at this time, and that such trees would be removed only if he so desired.

9.  APHIS investigation.  After Evans complained about the destruction of his trees, Christine Markham, the director for APHIS’s national ALH beetle eradication program, looked into the matter.  Her review confirmed that Evans had never granted written permission to have his trees destroyed.  She also personally apologized to him both privately and publicly.  In her words, the apology was for “the mistake made by USDA in the removal of his host trees.”[14]

10.  Total host removal area.  In the course of discovery, Evans deposed Kenneth Gooch, a DCR official.  According to Gooch’s testimony, government officials had decided that in a two and one-half square mile area that included Evans’s property, actual infestation was so widespread that all host trees in that area would have to be removed, regardless of whether they showed current signs of infestation, and regardless of whether property owners were willing to give their permission.  For convenience, we will refer to such an area by the same name used by the motion judge, the “total host removal area.”

11.  The summary judgment record.  On July 30, 2012, Evans served on the defendants a motion for partial summary judgment as to liability, supported by his verified complaint and a separate affidavit.  With discovery not having been completed, the defendants obtained a stay of their obligation to respond to Evans’s motion.  After discovery had been completed, the defendants served their own summary judgment motions, with Mayer filing the lead motion.  Although Evans’s motion was first in time, the defendants did not treat their own motions as cross motions to the one Evans had already served, despite Evans’s protests.  Instead, they began the process of creating a second summary judgment record, while separately responding to Evans’s motion.[15]

In their own statement of undisputed material facts, the defendants averred, based on Gooch’s deposition testimony, that State and Federal officials had established a total host removal area and that Evans’s property fell within it.  Evans disputed both points in his written response to the defendants’ statement of material facts, which he served on the defendants.  He also attached a second affidavit and various other documents in support of his responses.  Notwithstanding this, because of a pointed dispute that the attorneys had over “service in electronic form by email,” see Superior Court Rule 9A(b)(5)(i), the defendants did not include Evans’s response to the statement of material facts (including his additional supporting materials) in the summary judgment package that they filed pursuant to Superior Court Rule 9A (rule 9A).[16]  As a result, nothing in the rule 9A package alerted the motion judge to the fact that Evans was purporting to contest the existence and location of any total host removal area.

12.  Summary judgment ruling.  In his summary judgment decision, the judge ruled that based on the “undisputed facts . . . Marquis had license to remove the trees in question from the Property, and thus, the Defendants are not liable as a matter of law under the trespass to trees statute [G. L. c. 242, § 7].”  According to the judge, “[i]t is irrelevant that the DCR sought to obtain permission from property owners, [because] it was not legally required to do so[;] [i]t is clear that the DCR had the authority to enter onto the Property and remove the trees in question, regardless of whether Evans gave permission.”  The judge also accepted as undisputed that Evans’s property was located in a total host removal area, and he relied on this fact in part in his ruling, commenting that this helped show that DCR had “specifically sanctioned the removal of the trees in question.”

13.  Rule 60(b) motion.  After judgment had entered, Evans hired new counsel who filed a motion seeking relief from judgment pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974).  That motion asserted inter alia that Mayer’s lawyer had committed a fraud on the court by not including Evans’s response in the rule 9A package.  It also asserted that the failure by Evans’s former counsel to raise the issue sooner constituted “excusable neglect.”  The same judge who allowed the defendants’ motions for summary judgment denied the rule 60(b) motion.  He ruled that Evans could not reopen the proceedings and add the additional materials to the summary judgment record, because he had not met the standards applicable to rule 60(b) motions.[17]  He added that, in any event, Evans’s claims failed as a matter of law regardless of whether his property fell within any total host removal area.  In the judge’s words,

“even if Evans’[s] trees were not technically in the ‘Total Host Removal Area,’ it does not change the fact that — as Evans concedes — Evans’[s] trees were ‘host’ trees and that Marquis cut Evans’[s] trees after receiving instructions to do so from a USDA representative . . . facts [that,] alone, are sufficient to show that Marquis . . . had a ‘license’ i.e., permission, to cut the trees down.”

Evans filed timely appeals of both the judgment and the denial of his rule 60(b) motion.

Discussion.  1.  Marquis’s liability.  Evans principally sought damages against Mayer and Marquis pursuant to G. L. c. 242, § 7.[18]  That section reads in full as follows:

“A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.”

Before we turn to the statute’s application to this case, a few general observations about its workings are in order.  The statute provides a tort remedy through which property owners can seek damages from “person[s]” who cut down or otherwise destroyed their trees “without license.”  So long as the act of cutting was intentional and the act was without license, liability exists — albeit for single damages only — even where the person cutting the trees had “good reason to believe” he was “lawfully authorized” to do so.  See Moskow v. Smith, 318 Mass. 76, 77-78 (1945).  Thus, liability is not based on fault.  A tree cutter faces no liability under the statute only where he had actual “license” to cut the trees, which the statute equates with being “lawfully authorized” to do so.

The statute dates at least as far back as a Province Law of 1698.  See Province Laws 1698, c. 7, § 2.  As originally enacted, it appears aimed at the problem of people stealing wood from other owners or from the public commons.[19]  However, the statute’s language is not limited to that context.  Thus, the language does not speak of the stealing of trees but instead applies broadly to anyone who without license “cuts down, carries away, girdles or otherwise destroys trees” owned by others.  We therefore have recognized that the statute applies where someone cut down trees not to appropriate their wood, but solely to improve his view.  Glavin v. Eckman, 71 Mass. App. Ct. 313, 316-317 (2008).  We also have recognized that the damages available under the statute are not capped at the timber value of the wood.  Id. at 317-318.

In the case before us, the trees were cut incident to a nuisance eradication program.  Because property may not be used to maintain a public nuisance, States may destroy private property without compensation if necessary to abate such a nuisance.  Mugler v. Kansas, 123 U.S. 623, 668-669 (1887).[20]  It follows that a contractor who had been duly authorized to destroy privately owned trees as part of a statutory nuisance eradication program would have “license” to do so, and therefore could not be liable pursuant to G. L. c. 242, § 7.[21]  Compare Blair v. Forehand, 100 Mass. 136, 144-145 (1868) (owners of unlicensed and uncollared dogs had no action for trespass or trover against town constable who acted within his express statutory authority in killing the dogs).

It is uncontested that Marquis destroyed Evans’s trees at the specific instruction of the government official who was overseeing field operations that implemented a program broadly authorized by the Legislature to eradicate the ALH beetles.  Concluding in effect that this necessarily meant that Marquis was acting with “license,” the judge ruled that Evans’s action failed as a matter of law.  The flaw in this reasoning is that it does not account for the possibility that the agency instructions pursuant to which Marquis cut the trees were invalid and the trees were simply cut by mistake.  See Tower v. Tower, 18 Pick. 262, 263 (1836) (because Legislature had authorized summary killing of unlicensed, uncollared dogs, tort action would not lie against defendant-neighbor except where collared dogs were killed by mistake).

As Evans points out, DCR created a program under which it would provide property owners specific notice of its planned eradication actions.  Whether and when privately owned trees were actually destroyed then turned on the landowner’s providing written permission.[22]  Although DCR reserved the right to seek a court order in the event that a property owner refused consent, no host trees otherwise were to be destroyed absent that consent.  The question is whether, in creating its protocols, DCR thereby limited its broad authority to cut trees without a property owner’s permission.  In our view, that question should not be answered based on the current summary judgment record.

The protocols that DCR developed were not the product of formally promulgated regulations carrying the force of law.  See generally Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 496 (2010).  As a general matter, unpromulgated guidelines setting forth internal agency procedures are not considered binding on an agency.  Id. at 496 n.11.  See Golchin v. Liberty Mutual Ins. Co., 460 Mass. 222, 231 (2011) (“Where the commissioner does not consider bulletins to be binding regulations, we are not inclined to hold otherwise”).  However, the case law also recognizes that in certain contexts, agency pronouncements can be binding on the agency even where they have not formally been promulgated as regulations.  See Macioci v. Commissioner of Rev., 386 Mass. 752, 763 (1982) (Commissioner of Revenue had duty to conform to guidelines issued to public).  The cases have distinguished between guidelines that “concern[] only internal management of State agencies” and those designed to “affect the rights of or procedures available to the public.”  Amato v. District Attorney for the Cape & Islands Dist., 80 Mass. App. Ct. 230, 238 n.15 (2011), citing G. L. c. 30A, § 1(5) (Administrative Procedure Act codifying this distinction).  See  Global NAPs, Inc., supra at 496 n.11.  Where an agency has published guidelines on how it is going to proceed and has implicitly invited affected members of the public to rely on them, such guidelines can be deemed to constrain the agency’s actions.

The summary judgment record before us is not well developed on whether DCR’s policy of obtaining property owners’ written consent should be treated as the sort of pronouncement that constrains agency action.  For example, there is little in the record indicating the extent to which that policy was published to affected members of the public.  At the same time, there are some indications in the record, such as Markham’s public acknowledgement that Evans’s trees were cut by “mistake,” that suggest that the agencies may have intended that members of the public rely on the policy.  Another factor lending potential support to Evans’s position is that the contractual arrangements under which Mayer and Marquis nominally were operating prohibited them from entering private property without an owner’s written permission and otherwise included provisions designed to protect property owner rights.[23]  In our view, determining whether DCR’s authority to instruct Marquis to cut down Evans’s trees was curtailed by its policies regarding written permission needs further factual development.

We recognize that Marquis’s actions were specifically directed by Franciosi, a Federal employee.  This may well provide Marquis “good reason to believe” that it had authority to cut Evans’s trees (thus shielding Marquis from treble damages).[24]  However, Franciosi’s mistaken instructions could not provide actual “license” to cut the trees if such instructions were legally invalid.[25]

In reaching our conclusion, we have assumed, without deciding, that the judge did not abuse his discretion in denying the Mass.R.Civ.P. 60(b) motion.[26]  Thus, we have not relied on those additional factual materials that Evans sought to include in the summary judgment record, and we have assumed arguendo that Evans’s trees fell within a total host removal area.  That Evans’s trees may have been slated for eventual destruction obviously has significant potential ramifications for the amount of damages to which Evans might be entitled.[27]  The defendants might have prevailed on summary judgment if they had shown that Evans in no event could have kept his trees for an appreciable period of time had they not been cut by mistake.  However, on the current record, we cannot reasonably say that Evans has no hope of demonstrating that.  After all, the defendants have not presented a single other example of where any host tree was cut without an owner’s permission, or even any example of where DCR ever sought a judicial order to take down a blue-marked tree against an owner’s wishes.  We further note that Marquis did not destroy Evans’s nine Japanese maples, American elm, and white ash, and from all that appears before us, those host trees remain today.  We leave the import of whether Evans’s trees fell within a total host removal area to further proceedings.

2.  Mayer’s liability.  It is uncontested that Marquis, not Mayer, actually cut Evans’s trees.  However, it is also uncontested that when Marquis cut the trees, it was working as Mayer’s subcontractor, and Evans has alleged that Mayer bears liability pursuant to G. L. c. 242, § 7, as Marquis’s principal.  See Corsetti v. Stone Co., 396 Mass. 1, 10-11 (1985) (contractor is subject to liability for torts of its subcontractor where it retains “sufficient control” over subcontractor’s work).  On appeal, Mayer makes a passing argument that even if Marquis faces liability pursuant to the statute, Mayer itself does not because it did not in fact direct Marquis to destroy these particular trees (even though it had a contractual right to control Marquis’s actions).  That argument was not developed below, and the judge had no occasion to address it.  Especially in light of the current state of the briefing, we decline to reach Mayer’s argument that it could not derivatively be liable as a matter of law.[28]

3.  Liability of the insurer.  In count five of his complaint, Evans alleges that defendant Farm Family Casualty Insurance Company (Farm Family), which insured both Marquis and Mayer, faces its own liability pursuant to G. L. c. 93A, § 9(3), and G. L. c. 176D, § 3(9)(f).  This count is based on the claim that Farm Family failed to make a reasonable offer of settlement after the liability of its insured parties had become reasonably clear.  See Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671, 677-678 (1983).  Although we have concluded that at least Marquis faces potential liability pursuant to G. L. c. 242, § 7, that exposure has up until now not been reasonably clear, and it remains in significant doubt today.  See Clegg v. Butler, 424 Mass. 413, 421 (1997) (reasonably clear liability “encompasses both fault and damages”).  As a result, count five as pleaded is, at a minimum, premature.[29]

4.  Disposition.  The judgment dismissing Evans’s complaint is vacated.  In view of that disposition, the appeal from the order denying Evan’s Mass.R.Civ.P. 60(b) motion has become moot, and we dismiss it as such.  The case is remanded to the Superior Court for further proceedings consistent with this opinion.[30]

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-11903

JOSEPH F. FRAWLEY, JR.  vs.  POLICE COMMISSIONER OF CAMBRIDGE.

Middlesex.     November 5, 2015. – March 4, 2016.

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

Firearms.  Police, Firearms, Retirement.  Public Employment, Police.  Declaratory Relief.  Practice, Civil, Summary judgment, Injunctive relief, Relief in the nature of certiorari.

Civil action commenced in the Superior Court Department on November 13, 2012.

The case was heard by Douglas H. Wilkins, J., on motions for summary judgment.

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

Samuel A. Aylesworth, Assistant City Solicitor, for the defendant.

James F. Lamond (Dennis M. Coyne with him) for the plaintiff.

SPINA, J.  When Joseph F. Frawley, Jr., retired on March 4, 2004, from his position as a sergeant with the Cambridge police department (department), the police commissioner for the city of Cambridge (city) issued him a “retired officer identification card” (ID card) that had no expiration date.  On December 22, 2011, Frawley applied for the issuance of a replacement ID card because the one in his possession had broken.  The successor police commissioner (commissioner) denied the application, stating that Frawley “ha[d] not met the standard set by the Department.”  On November 28, 2012, Frawley filed an amended complaint for declaratory and injunctive relief in the Superior Court.  He sought a declaration that the commissioner had breached his duty under 501 Code Mass. Regs. §§ 13.00 (2008) (regulations), which set forth the standards for identification cards for retired law enforcement officers, by refusing to issue Frawley a replacement ID card.  The ID card, together with a so-called “Law Enforcement Officers Safety Act Training and Certification Card” (training certification card), allows the holder to carry a concealed firearm in accordance with the provisions of the Law Enforcement Officers Safety Act of 2004 (LEOSA), Pub. L. No. 108-277, 118 Stat. 865 (2004), codified insofar as relevant here at 18 U.S.C. § 926C (2012).  See 501 Code Mass. Regs. § 13.04(2)(a).  After determining that Frawley had standing to seek declaratory relief, a judge allowed Frawley’s motion for summary judgment, declaring that he was entitled to receive a replacement ID card because he had retired “in good standing.”  Id. at §§ 13.02, 13.03.  The commissioner appealed, and we transferred the case to this court on our own motion.  We affirm, but for reasons different from those articulated by the judge.

1.  Statutory and regulatory framework.  On July 22, 2004, Congress enacted LEOSA, which permits a “qualified retired law enforcement officer” who possesses the requisite State-issued identification to “carry a concealed firearm that has been shipped or transported in interstate or foreign commerce,” subject to certain enumerated restrictions.  18 U.S.C. § 926C.  Several years later, on January 11, 2008, the Massachusetts Executive Office of Public Safety and Security promulgated “rules and regulations governing the standards for identification cards for retired law enforcement officers to comply with the provisions of [LEOSA].”[1]  501 Code Mass. Regs. § 13.01.  Pursuant to these regulations, “[t]he chief law enforcement officer for a law enforcement agency shall issue an identification card to a qualified retired law enforcement officer, who retired from that law enforcement agency” (emphasis added).  Id. at § 13.03.  A “qualified retired law enforcement officer” is an individual who, among other things, “retired in good standing from service with a law enforcement agency as a law enforcement officer, other than for reasons of mental instability.”[2]^,[3]  Id. at § 13.02.  The regulations do not define what it means to have retired “in good standing.”

The department is a “law enforcement agency” within the meaning of 501 Code Mass. Regs. § 13.02.  The commissioner is its “chief law enforcement officer” under the provisions of § 2.52.010 of the Cambridge Code of Ordinances (Ordinances).  See 501 Code Mass. Regs. § 13.02; Ordinances § 2.52.010 (1990).  The authority of the commissioner includes the power to “organize and administer the Department,” Ordinances § 2.52.030(A) (1989), and to “make suitable regulations governing the Department and the officers thereof, subject to the approval of the City Manager.”  Ordinances § 2.52.010.  Pursuant to this authority, the commissioner issued “Policy and Procedures No. 151″ (Policy 151), entitled “Police Identification Card Program,” on August 6, 2011.  Its stated purpose is “to describe how [the] department will go about issuing police identification cards to sworn members of the Cambridge Police Department, as well as to those members of the department who retire from the Cambridge Police Department.”  Policy 151 § I.  The procedures pertaining to retired police officers state that “[t]he department will issue one police identification card to sworn members of the department who have separated from service from the Cambridge Police Department and qualified to receive said identification card, identifying said members as . . . retired police.”  Policy 151 § IV(F).  A retired police officer is qualified to receive an ID card where, among other criteria, the officer “[s]eparated in good standing, meaning that such officer was not charged with or suspected of criminal activity at the time of retirement or separation from the department, nor was he/she under investigation or facing disciplinary action for an ethical violation of departmental rules, or for any act of dishonesty.”  Policy 151 § IV(F)(1)(a).

2.  Factual and procedural background.  The department hired Frawley on October 14, 1980.  He worked as a full-time patrol officer until April 1, 1990, when he was promoted to the rank of sergeant.  Frawley served in that position until March 4, 2004, the effective date of his retirement.  His tenure with the department was not entirely without incident.

Commencing on February 6, 2001, Frawley was suspended without pay for five days for insubordination toward a superior officer.  Subsequently, on November 19, 2003, Frawley, the city, and the Cambridge Police Superior Officers Association (union) entered into a written memorandum of agreement (agreement) in which they resolved several employment disputes.  Among other matters, Frawley agreed to accept a fifteen-day unpaid suspension in partial resolution of disciplinary charges that the city had brought against him in April, 2002.  These charges followed a department investigation which concluded that on several occasions when Frawley had reported that he was out on sick leave, he actually was conducting private business activities and lying about his location on the days in question.  As to the remaining disciplinary charges from April, 2002, which pertained to Frawley’s failure to be truthful during a grievance hearing, the parties agreed to hold them open, but the city would take no further action unless Frawley was suspended for five or more days in the future, at which point the city could revive the charges.  The agreement did not include any admission of culpability by Frawley, did not mention his eligibility for retirement, and did not limit Frawley’s ability to exercise police powers or to possess a firearm after the service of his fifteen-day suspension.  Once he served his suspension, Frawley returned to unrestricted duties as a police sergeant and continued to work in that capacity until he retired.

At around the time of Frawley’s retirement, the Cambridge city council adopted a resolution “expressing its appreciation to Joseph F. Frawley, Jr., for his twenty-nine [sic] years of dedicated service to the citizens and to the City of Cambridge and wish[ing] him much happiness in his retirement.”  The commissioner’s predecessor then issued Frawley an ID card,[4] even though the department was in the midst of investigating a citizen complaint that had been filed against Frawley on September 29, 2003.  The citizen alleged that, approximately one year earlier, Frawley had abused his power and made a false arrest in connection with a purported breaking and entering in the nighttime at an apartment building.  The citizen had been employed by Frawley at some unspecified time in the past, and he believed that his arrest was related to this prior employment.  An investigation by an internal affairs division of the department ensued.  Following a review of the circumstances surrounding the incident, it was determined that the arrest was proper and not connected to any past relationship between Frawley and the citizen.  In December, 2004, the department cleared Frawley of the alleged wrongdoing.  During the portion of the investigation that occurred prior to Frawley’s retirement, Frawley’s law enforcement duties and responsibilities were not restricted in any manner.

On December 22, 2011, Frawley applied for the issuance of a replacement ID card because the one in his possession had broken.  He attested on his application that, among other factors, he “separated from service with the department in good standing as a police officer, meaning that [he] was not charged with or suspected of criminal activity at the time of separation, nor was [he] under investigation or facing disciplinary action for an ethical violation of departmental rules, or for any act of dishonesty.”  See Policy 151 § IV(F)(1)(a).  Following a professional standards review, Frawley’s application was deemed “not recommended.”  By letter dated February 6, 2012, the commissioner informed Frawley that the department would not be issuing him a replacement ID card because Frawley had not met “the standard set by the Department.”

In his amended complaint, Frawley sought a declaration that the commissioner had breached his legal duty under 501 Code Mass. Regs. § 13.03 to issue Frawley an ID card based on his status as a “qualified retired law enforcement officer.”  Frawley claimed that he had been “materially disadvantaged” by the commissioner’s denial of his application.  In his answer to the amended complaint, the commissioner denied that Frawley had retired from the department in good standing and should be deemed a “qualified retired law enforcement officer” within the meaning of 501 Code Mass. Regs. § 13.02.  The commissioner also raised several affirmative defenses, including lack of standing to bring an action for declaratory judgment.

Frawley subsequently filed a motion for summary judgment.  The commissioner filed a cross motion for summary judgment, together with an affidavit explaining his rationale for denying Frawley’s application for a replacement ID card.  The commissioner stated in his affidavit that, at the time of Frawley’s retirement, “open charges remained relating to [Frawley’s] fail[ure] to tell the truth during a [department] investigation,” and Frawley was “under investigation for a claim made by a member of the public that [he] had engaged in a false arrest.”  The commissioner also pointed out that Frawley had been suspended for insubordination toward a superior officer, and for misconduct arising from his abuse of sick leave.  Finally, the commissioner stated that after giving the matter serious consideration, he exercised his discretion as commissioner, based on his knowledge of Frawley’s history with the department, and concluded that Frawley would not be issued a replacement ID card.

By decision dated September 22, 2014, the judge allowed Frawley’s motion for summary judgment and declared that he was entitled to receive a replacement ID card from the commissioner in accordance with the regulations.  The judge concluded that where Frawley had alleged that the commissioner violated his duty under 501 Code Mass. Regs. § 13.03, and where, as a consequence, Frawley was denied the benefits conferred under LEOSA, Frawley had standing to seek declaratory relief.  The judge further concluded that Frawley had retired in good standing as a matter of “historical fact,” and that the commissioner did not have the power to reconsider his predecessor’s decision.  The present appeal ensued.

3.  Complaint for declaratory judgment.  The commissioner contends that the judge erred in concluding that Frawley had standing to bring a cause of action for declaratory relief predicated on the commissioner’s failure to issue him a replacement ID card in accordance with the mandate of 501 Code Mass. Regs. § 13.03.  The commissioner maintains that the regulations do not permit, either expressly or by implication, a private cause of action to compel the chief law enforcement officer for a law enforcement agency to issue an ID card.  Further, he continues, the enabling statute on which the regulations are based, G. L. c. 140, § 131 (r), does not suggest any legislative intent to create an enforceable right.  We conclude that a complaint for declaratory judgment is not the appropriate means to challenge a chief law enforcement officer’s decision to deny the issuance of an ID card.  Rather, the proper avenue for relief is a civil action in the nature of certiorari pursuant to G. L. c. 249, § 4.

It is undisputed that the regulations do not provide, in express terms, a private right of action for an aggrieved party to challenge the denial of an ID card.  Contrast, e.g., 118 Code Mass. Regs. § 14.03(5) (2005) (individual wanting to challenge decision by executive director of Disabled Persons Protection Commission regarding personal data may seek judicial review pursuant to G. L. c. 214, § 3B); 961 Code Mass. Regs. § 4.03(5) (1993) (aggrieved party may obtain judicial review of denial of permit to conduct raffle or bazaar by filing petition for review in District Court).  The inquiry therefore becomes whether a private right of action can be inferred from the regulations.  We conclude that it cannot.

In Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 546 (1998), this court held that “a private cause of action cannot be inferred solely from an agency regulation.”  See Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 38 (2006) (regulations governing asbestos removal did not provide right of action to enforce compliance with mandates); Hudson v. Commissioner of Correction, 46 Mass. App. Ct. 538, 548 n.18 (1999), S.C., 431 Mass. 1 (2000) (violation of health regulations applicable to correctional facilities did not create private right of action for affected inmates).  As we explained in Loffredo, “a judicial inference of a private cause of action solely from an agency regulation requires a twofold stretch:  the judiciary infers a cause of action not to supplement a statute enacted by the Legislature, but to supplement a rule enacted by the executive, which itself supplements the statute.”  Loffredo, supra at 545.  By “inferring a private cause of action from an agency regulation alone, we run the risk of joining with the executive to revise and go substantially beyond the will of the Legislature.”  Id. at 546.

General Laws c. 140, § 131 (r), and 18 U.S.C. § 926C are the enabling statutes pursuant to which the Secretary of the Executive Office of Public Safety and Security promulgated the regulations governing ID cards for qualified retired law enforcement officers.  See 501 Code Mass. Regs. §§ 13.00.  Section 131 governs licenses to carry firearms, and subsection (r) authorizes the Secretary to promulgate regulations to carry out the purposes of § 131.  Neither § 131, in general, nor subsection (r), in particular, addresses ID cards, either explicitly or implicitly.  Section 131 does, however, include a private right of action for a party aggrieved by the denial of a license to carry a firearm.  It states that “[a]ny applicant or holder aggrieved by a denial, revocation or suspension of a license [to carry] . . . may . . . file a petition to obtain judicial review in the district court having jurisdiction in the city or town wherein the applicant filed for, or was issued, such license.”  G. L. c. 140, § 131 (f).  A license to carry a firearm is substantively different from an ID card.  Nothing in § 131 suggests that the Legislature intended to confer a private right of action on a retired law enforcement officer who has been denied an ID card.  Similarly, at least one Federal court has held that Congress did not intend, either explicitly or implicitly, to create a private cause of action under 18 U.S.C. § 926C for retired law enforcement officers who have been denied a State-issued photographic identification.  See Johnson v. New York State Dep’t of Correctional Servs., 709 F. Supp. 2d 178, 183-186 (N.D.N.Y. 2010).  On the basis of both State and Federal law, we conclude that Frawley cannot assert a private cause of action to compel the commissioner to issue him a replacement ID card.

Apparently recognizing the absence of a private right of action, Frawley proceeded by filing a complaint for declaratory and injunctive relief.  The purpose of the declaratory judgment statute, G. L. c. 231A, is “to remove, and to afford relief from, uncertainty and insecurity with respect to rights, duties, status and other legal relations.”  G. L. c. 231A, § 9.  Among other controversies to which the declaratory judgment procedure is appropriate, it may be used to resolve disputes concerning the interpretation of an administrative regulation.  See G. L. c. 231A, § 2; Ciszewski v. Industrial Acc. Bd., 367 Mass. 135, 140 (1975).  Generally speaking, however, “a party may not seek declaratory relief to effect an ‘end run’ around the absence of a private right of action where the Legislature intended to foreclose certain remedies.”  Service Employees Int’l Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 336 (2014) (SEIU).[5]  See Boston Med. Ctr. Corp. v. Secretary of the Executive Office of Health & Human Servs., 463 Mass. 447, 470-471 (2012) (provider of medical care could not seek declaratory judgment as to reasonableness of rate determinations absent private right of action).  Not only has the Legislature foreclosed a private right of action with respect to the denial of an ID card, but, more fundamentally, the nature of the dispute here is not one that is appropriate for declaratory judgment.[6]

“[A] complaint for declaratory relief is an appropriate way of testing the validity of regulations or the propriety of practices involving violations of rights, which are consistent and repeated in nature.”  Nelson v. Commissioner of Correction, 390 Mass. 379, 388 n.12 (1983), citing G. L. c. 231A, § 2.  However, we have said that declaratory judgment is not “an appropriate remedy where the validity of an adjudication . . . in an individual case is being challenged.  There relief in the nature of certiorari is to be sought.”  Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass. 12, 30 (2015), quoting Averett v. Commissioner of Correction, 25 Mass. App. Ct. 280, 287 (1988), S.C., Averett, petitioner, 404 Mass. 28 (1989) (action for declaratory relief not appropriate form of judicial review of parole board decision denying initial parole to juvenile homicide offender).  See SEIU, 469 Mass. at 337 n.12.  See also Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 131, 135-136 (2013) (inmate appeal challenging Department of Correction determination in official disciplinary proceeding governed by certiorari statute).

In his amended complaint, Frawley states that the parties have a genuine dispute over the commissioner’s legal obligation under 501 Code Mass. Regs. § 13.03 to issue Frawley a replacement ID card.[7]  Although Frawley appears to characterize his action to fit within the scope of G. L. c. 231A, we do not agree with his description of the nature of the controversy.  The meaning of § 13.03, and the right conferred thereunder, is not uncertain or ambiguous such that it requires judicial interpretation.  The duty of the commissioner is clear.  Once an individual satisfies the criteria set forth in 501 Code Mass. Regs. § 13.02 for being deemed a “qualified retired law enforcement officer,” the commissioner “shall issue” an ID card.  Conversely, the commissioner has no legal obligation under the regulations to issue an ID card to an individual who is not a “qualified retired law enforcement officer.”  The dispute between the parties is not about the meaning or scope of the commissioner’s obligation under § 13.03, but, more accurately, whether the commissioner’s decision to deny Frawley’s application for a replacement ID card was improper.  Given the substance of Frawley’s complaint, and the absence of a private right of action under the regulations or enabling legislation, the appropriate avenue of relief for Frawley was a civil action in the nature of certiorari pursuant to G. L. c. 249, § 4.

The purpose of a civil action in the nature of certiorari is “to relieve aggrieved parties from the injustice arising from errors of law committed in proceedings affecting their justiciable rights when no other means of relief are open.”  Figgs v. Boston Hous. Auth., 469 Mass. 354, 361 (2014), quoting Swan v. Justices of the Superior Court, 222 Mass. 542, 544 (1916).  See G. L. c. 249, § 4.  “Certiorari also has been described as ‘a limited procedure reserved for correction of substantial errors of law apparent on the record created before a judicial or quasi-judicial tribunal.’”  Figgs, supra, quoting School Comm. of Hudson v. Board of Educ., 448 Mass. 565, 575-576 (2007).  See Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth, 430 Mass. 783, 790-791 (2000); Gloucester v. Civil Serv. Comm’n, 408 Mass. 292, 297 (1990).  “To obtain certiorari review of an administrative decision, the following three elements must be present:  (1) a judicial or quasi judicial proceeding, (2) from which there is no other reasonably adequate remedy, and (3) a substantial injury or injustice arising from the proceeding under review.”  Indeck v. Clients’ Sec. Bd., 450 Mass. 379, 385 (2008).  See Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 83 (1968).  We conclude that the commissioner’s decision satisfies the necessary elements for certiorari review.

As to the first element of the Indeck test, when assessing whether a proceeding is quasi judicial, “we have looked to the form of the proceeding . . . and the extent to which that proceeding resembles judicial action.”  Hoffer v. Board of Registration in Med., 461 Mass. 451, 457 (2012).  Here, Frawley completed an application for a replacement ID card in which he attested that he satisfied the necessary criteria to be deemed a “qualified retired law enforcement officer.”  Then, a “professional standards review” was conducted.  Based on the results of that investigation, the commissioner determined that Frawley had not met “the standard set by the Department” and, therefore, was not entitled to receive a replacement ID card.  This was not a legislative or regulatory proceeding, characterized by interested persons advocating or disapproving a proposed policy to be implemented by a local licensing board.  See id.  See also School Comm. of Hudson, 448 Mass. at 576; Pronghorn, Inc. v. Licensing Bd. of Peabody, 13 Mass. App. Ct. 70, 72-73 (1982).  Rather, notwithstanding the absence of an adjudicatory hearing, Frawley was required to attest to certain facts, the department conducted an investigation into the veracity of those facts, and the commissioner made an individualized determination concerning Frawley’s entitlement to a replacement ID card.  This proceeding, conducted under the framework of the regulations, was quasi judicial.  See, e.g., Roslindale Motor Sales, Inc. v. Police Comm’r of Boston, 405 Mass. 79, 83-84 (1989) (statute giving police commissioner authority to grant licenses to sell used motor vehicles conferred quasi judicial authority on commissioner to determine facts and decide each application).

With respect to the second element of the Indeck test, absent a civil action in the nature of certiorari, there is no other remedy available to Frawley, as we have discussed, supra.  Finally, the commissioner’s denial of a replacement ID card constitutes a substantial injury or injustice.  See Indeck, 450 Mass. at 385.  “The injury requirement has been interpreted as requiring (1) a justiciable injury, (2) that is particular to the plaintiff[] rather than common to the public or a segment thereof, and (3) that is more than ‘hypothetical.’”  Hoffer, 461 Mass. at 457 n.8, quoting Fiske v. Selectmen of Hopkinton, 354 Mass. 269, 271 (1968).  The ID card, together with a training certification card, would allow Frawley to carry a concealed firearm across State lines in accordance with the provisions of LEOSA.  See 501 Code Mass. Regs. § 13.04(2)(a).  See also 18 U.S.C. § 926C.  By denying Frawley a replacement ID card, the commissioner has rendered him ineligible to exercise this Federal right.  Such injury is sufficient to satisfy the third element of the Indeck test.

Our conclusion that a civil action in the nature of certiorari is the appropriate avenue of relief for Frawley is consistent with the relief that is afforded to an individual who is denied a license to carry firearms under G. L. c. 140, § 131.  Judicial review of a firearms licensing decision is available first by way of “a petition to obtain judicial review in the district court,” G. L. c. 140, § 131 (f), and then “by way of an action in the nature of certiorari pursuant to G. L. c. 249, § 4.”  Firearms Records Bur. v. Simkin, 466 Mass. 168, 179-180 (2013).  See Chardin v. Police Comm’r of Boston, 465 Mass. 314, 317, cert. denied sub nom. Chardin v. Davis, 134 S. Ct. 525 (2013).  “On certiorari review, the Superior Court’s role is to examine the record of the District Court and to ‘correct substantial errors of law apparent on the record adversely affecting material rights.’”  Simkin, supra at 180, quoting Cambridge Hous. Auth. v. Civil Serv. Comm’n, 7 Mass. App. Ct. 586, 587 (1979).  Although a license to carry a firearm is substantively different from an ID card, both are components of a licensing scheme that allows a qualified retired law enforcement officer to carry a firearm in Massachusetts and across State lines.  See G. L. c. 140, § 131; 501 Code Mass. Regs. §§ 13.00.  See also 18 U.S.C. § 926C.  It is appropriate that the denial of an ID card be subject to the same form of judicial review as the denial of a license to carry.  See Bermant v. Selectmen of Belchertown, 425 Mass. 400, 404 (1997) (“a civil action in the nature of certiorari is the sole relief available to a party aggrieved by a discretionary decision of a local licensing authority”).

Having ascertained the proper form of judicial review of the commissioner’s decision, we now consider the separate matter of the standard of review to be applied to such decision.  See Diatchenko, 471 Mass. at 31.  “It is well established that ‘the standard of review [under G. L. c. 249, § 4,] may vary according to the nature of the action for which review is sought.’”  Figgs, 469 Mass. at 361, quoting Garrity v. Conservation Comm’n of Hingham, 462 Mass. 779, 792 (2012).  We have yet to decide the appropriate standard of review of a police commissioner’s decision to deny the issuance of an ID card to a retired law enforcement officer.  Although the commissioner “shall issue” an ID card where an applicant has satisfied the enumerated criteria for being deemed a “qualified retired law enforcement officer,” 501 Code Mass. Regs. § 13.03, whether in fact an applicant has satisfied such criteria is a discretionary decision.  We recognize that the majority of the criteria are objective.  See note 2, supra.  Significantly, however, the commissioner must determine whether the applicant retired “in good standing.”  501 Code Mass. Regs. § 13.02.  Because the commissioner may use his judgment in making this determination, his decision will be construed as an exercise of administrative discretion.  A reviewing court will examine whether the commissioner’s decision was arbitrary and capricious such that it constituted an abuse of his discretion.  See Diatchenko, supra (abuse of discretion standard appropriate to review decision whether to grant parole to particular juvenile homicide offender); Garrity, supra; Forsyth Sch. for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211, 217 (1989).

Employing an abuse of discretion standard for reviewing the denial of an ID card is consistent with the standard of review under the license to carry statute.  General Laws c. 140, § 131 (f), provides that a judge “may direct that a license be issued or reinstated . . . if [the judge] finds that there was no reasonable ground for denying, suspending or revoking such license and that the petitioner is not prohibited by law from possessing same” (emphasis added).  “To warrant a finding that a chief of police had no reasonable ground for refusing to issue a license [to carry firearms,] it must be shown that the refusal was arbitrary, capricious, or an abuse of discretion.”  Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543, 546 (1983).  See Simkin, 466 Mass. at 179.

When reviewing the commissioner’s decision in this case, the inquiry is twofold.  First, it must be determined whether the commissioner erred in reopening Frawley’s case, given that the prior police commissioner had issued Frawley an ID card.  Second, it must be determined whether the commissioner abused his discretion in deciding that Frawley had not met “the standard set by the Department” and, therefore, was not entitled to a replacement ID card.  See 501 Code Mass. Regs. § 13.03.  A decision is arbitrary or capricious such that it constitutes an abuse of discretion where it “lacks any rational explanation that reasonable persons might support.”  Doe v. Superintendent of Schs. of Stoughton, 437 Mass. 1, 6 (2002), quoting Fire Chief of E. Bridgewater v. Plymouth County Retirement Bd., 47 Mass. App. Ct. 66, 69 (1999).  See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (abuse of discretion occurs when there has been clear error of judgment in weighing relevant factors such that decision falls outside range of reasonable alternatives).  “It is not the place of a reviewing court to substitute its own opinion” for that of the commissioner.  Doe, supra.

Judicial review of the commissioner’s decision proceeds under the same standard whether conducted by this court or remanded to the Superior Court for reconsideration.  The decision by a reviewing court is a ruling of law that does not require findings of fact, determinations of credibility, or the application of administrative expertise.  See Doe, 437 Mass. at 5-6 & n.6; Northboro Inn, LLC v. Treatment Plant Bd. of Westborough, 58 Mass. App. Ct. 670, 673-674 (2003).  Instead, the reviewing court simply must determine whether the commissioner, on the basis of the evidence before him, abused his discretion in a manner that adversely affected Frawley’s material rights.  See Simkin, 466 Mass. at 179-180; Gloucester, 408 Mass. at 297.  We stand in the same position as the judge below in making that determination.  Moreover, this court has concurrent jurisdiction with the Superior Court to entertain an action in the nature of certiorari under G. L. c. 249, § 4.  That being the case, and in light of the limited review afforded a certiorari action, we proceed to decide the commissioner’s appeal in the interests of judicial economy and efficiency.[8]  See, e.g., Murphy v. Superintendent, Mass. Correctional Inst., Cedar Junction, 396 Mass. 830, 833 (1986) (treating complaint for declaratory and injunctive relief as action in nature of certiorari); McLellan v. Commissioner of Correction, 29 Mass. App. Ct. 933, 934 (1990) (same).

4.  Entitlement to replacement ID card.  We begin by considering whether the commissioner erred in reopening Frawley’s case.  Once Frawley submitted an application to obtain a replacement ID card, the commissioner was required to issue the card, provided that Frawley was a “qualified retired law enforcement officer,” which meant that, among other things, he had retired “in good standing.”  501 Code Mass. Regs. §§ 13.02, 13.03.  The commissioner argues on appeal that it was not a “historical fact” that Frawley had satisfied this criterion.  Therefore, the commissioner continues, he was compelled to reopen Frawley’s case to ascertain whether, in fact, Frawley had retired in good standing.  We agree.

The commissioner’s predecessor issued Frawley an ID card at around the time of Frawley’s retirement on March 4, 2004.  The regulations setting forth the standards for the issuance of an ID card were not promulgated until January 11, 2008.  501 Code Mass. Regs. § 13.01 (2008).  When the commissioner received Frawley’s application for a replacement ID card in December, 2011, he would not have known what criteria, if any, his predecessor had considered prior to giving Frawley his original ID card.  That being the case, the commissioner would have had no basis for knowing whether Frawley was a “qualified retired law enforcement officer” to whom the commissioner was obligated to issue a replacement ID card.  Contrary to Frawley’s contention, the mere fact that Frawley obtained an ID card in 2004 does not mean that he retired “in good standing,” given the absence of articulated standards and criteria at that time for the issuance of an ID card.

The commissioner is vested with the authority to “organize and administer the Department.”  Ordinances § 2.52.030(A).  This authority encompasses the issuance of an ID card to a “qualified retired law enforcement officer.”  To the extent that there was any question as to Frawley’s classification as such, it was well within the commissioner’s discretion to reexamine Frawley’s status.  Cf. Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 395 (2013), and cases cited (“An administrative agency, in the absence of statutory limitations, generally has the inherent authority to reconsider a decision or reopen a proceeding to prevent or mitigate a miscarriage of justice”).  We conclude that the commissioner did not err in reopening Frawley’s case.

We now consider whether the commissioner abused his discretion in deciding that Frawley had not met “the standard set by the Department” and, therefore, was not entitled to a replacement ID card.  As we have mentioned, when the Executive Office of Public Safety and Security promulgated the regulations, it did not define what it meant to retire “in good standing.”  501 Code Mass. Regs. § 13.02.  Consequently, the commissioner described the meaning of this phrase when he issued Policy 151, in accordance with his authority under Ordinances § 2.52.010.  Policy 151 § IV(F)(1)(a).  Given that Policy 151 was issued four months before Frawley applied for a replacement ID card, the commissioner could use the definition therein to assess whether Frawley should be deemed a “qualified retired law enforcement officer.”  There is no evidence that the Executive Office of Public Safety and Security intended to deny the city, or the commissioner acting in conformity with the Ordinances, the right to enact policies and procedures that would be consistent with the regulations.  A municipality enjoys “considerable latitude” in legislating on matters of local concern, including the authority and duties of its police department.  Bloom v. Worcester, 363 Mass. 136, 154 (1973).  See art. 89, § 6, of the Amendments to the Massachusetts Constitution (Home Rule Amendment).  See also Ordinances c. 2.52.  We have said that there must be a “sharp conflict” between a local law and a State law before the local law will be invalidated.  Easthampton Sav. Bank v. Springfield, 470 Mass. 284, 288-289 (2014), quoting Bloom, supra.  Here, the commissioner did not modify the regulations.  He merely described the department’s procedures for issuing ID cards and explained an undefined criterion.  In so doing, the commissioner acted within his purview, and the description set forth in Policy 151 of what it means to retire “in good standing” governed the evaluation of Frawley’s application.

In his affidavit, the commissioner cited several reasons why Frawley did not meet “the standard set by the Department.”  First, the commissioner stated that Frawley, at the time of his retirement, was “under investigation for a claim made by a member of the public that [he] had engaged in a false arrest.”  Pursuant to Policy 151, a police officer has not retired “in good standing” where, at the time of retirement, the officer was “under investigation or facing disciplinary action for an ethical violation of departmental rules, or for any act of dishonesty.”  Policy 151 § IV(F)(1)(a).  We acknowledge that the citizen complaint would appear to disqualify Frawley from receipt of a replacement ID card.  However, at the time the commissioner evaluated Frawley’s application in 2012, he would have known that the department had cleared Frawley of any purported wrongdoing with respect to the citizen complaint.  The commissioner could not ignore this information where it plainly removed an impediment to Frawley being deemed an officer who retired “in good standing.”[9]

Second, the commissioner stated that, at the time of Frawley’s retirement, “open charges remained relating to [Frawley’s] fail[ure] to tell the truth during a [department] investigation.”  Pursuant to the November 19, 2003, agreement, however, the city agreed to take no action on such charges unless Frawley was suspended for five or more days in the future, at which point the city could revive the charges.  During the remainder of Frawley’s tenure with the department, the city did not revive the charges, and, on the effective date of Frawley’s retirement, the charges effectively were closed because Frawley had not engaged in any conduct that would warrant a suspension.  That being the case, this matter did not disqualify Frawley from having retired “in good standing.”  See Policy 151 § IV(F)(1)(a).

Finally, the commissioner pointed out that Frawley had been suspended for insubordination toward a superior officer, and for misconduct arising from his abuse of sick leave.  Neither of these incidents was pending “at the time of retirement.”  Policy 151 § IV(F)(1)(a).  As a consequence, they could not serve as a basis for the commissioner’s determination that Frawley had not retired “in good standing.”

5.  Conclusion.  The commissioner abused his discretion in deciding that Frawley had not met “the standard set by the Department.”  Accordingly, Frawley is entitled to receive a replacement ID card.  We vacate the declaratory judgment and remand the case to the Superior Court for entry of a judgment directing the commissioner to issue a replacement ID card to Frawley.

So ordered.

Full-text Opinions

CORDY, J. (concurring, with whom Lenk, J., joins).  I concur in the court’s conclusion that in this case the Probate and Family Court may undertake to make findings necessary to enable the plaintiff to apply for special immigrant status under 8 U.S.C. § 1101(a)(27)(J) (2012).  I do so because of our strong State policies aimed at protecting children from the effects of abuse and neglect, and the apparent gap between the ordinary jurisdiction of the Probate and Family Court and the benefits available under Federal law for immigrant children (between the ages of eighteen and twenty-one) who can establish that they have been abused, neglected, or abandoned by one or both of their parents in their native countries.  I do so reluctantly, however, because this opinion stretches our equity jurisprudence to its outer edge, beyond what the court majority concluded was appropriate in Eccleston v. Bankosky, 438 Mass. 428 (2003), a markedly different case.[11]

In my view, it would have been far preferable if the Legislature had, as other State Legislatures have, acted on legislation that would have explicitly provided for expanded State court jurisdiction to address claims like that of the plaintiff.  Without such legislation, the court is left to engage in gymnastics of logic and circular reasoning to conclude that the plaintiff is “dependent” on the court solely because she needs the court to declare that she is “dependent” on the court in order to meet one of the requirements of the Federal statute, and in no other respect.

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-11897

INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA  vs.  GREAT NORTHERN INSURANCE COMPANY.

Suffolk.     November 2, 2015. – March 7, 2016.

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

Workers’ Compensation Act, Insurer, Coverage, Election of remedies.  Insurance, Workers’ compensation insurance, Contribution among insurers, Insurer’s obligation to defend.  Contribution.  Tender.  Election of Remedies.

Certification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts.

Barbara I. Michaelides, of Illinois (Aaron S. Bayer, of Connecticut, with her) for the plaintiff.

Jennifer C. Sheehan (Richard J. Shea with her) for the defendant.

Laura Meyer Gregory, for Massachusetts Defense Lawyers Association, amicus curiae, submitted a brief.

GANTS, C.J.  The United States Court of Appeals for the First Circuit certified the following question to this court, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981):

“Where two workers’ compensation insurance policies provide coverage for the same loss, may an insured elect which of its insurers is to defend and indemnify the claim by intentionally tendering its defense to that insurer and not the other and thereby foreclose the insurer to which tender is made from obtaining contribution from the insurer to which no tender is made?”

We answer “no” to the question.  Where, as here, two primary workers’ compensation insurance policies provide coverage for the same loss arising from injury to an employee, the insurance company that pays the loss has a right of equitable contribution to ensure that the coinsurer pays its fair share of the loss.  The employer of the injured employee may not prevent the insurance company that pays the loss from exercising its right of equitable contribution by intentionally giving notice of the injury only to that insurer.[1]

Background.  We set forth below the relevant background and procedural history of the case contained in the certification order from the First Circuit, occasionally supplemented by undisputed information in the record.  In January, 2010, an employee of Progression, Inc. (Progression), was severely injured in an automobile accident while traveling abroad on a business trip.  Progression had purchased two workers’ compensation policies from two different insurers, one providing compulsory workers’ compensation coverage from the Insurance Company of the State of Pennsylvania (ISOP), and a second providing workers’ compensation coverage for employees traveling outside the United States and Canada from Great Northern Insurance Company (Great Northern).  Both policies provided primary coverage; neither was an excess policy.[2]  The employee gave timely notice of his injury to Progression and pursued a workers’ compensation claim before the Department of Industrial Accidents (department).  Progression gave notice of the claim only to ISOP; it did not notify Great Northern.  ISOP immediately began making payments pursuant to the policy and defended the claim before the department.

ISOP later learned that Progression also had workers’ compensation coverage under its Great Northern policy and, on October 3, 2011, sent a letter to Great Northern that gave notice of the claim and requested contribution.  In a letter dated March 15, 2012, Great Northern declined “the attempted tender” of the claim.  It informed ISOP that it had learned from Progression that Progression had intended to tender the claim only to ISOP and had not authorized ISOP to report or tender the claim to Great Northern.

On November 7, 2013, ISOP filed a complaint against Great Northern in the United States District Court for the District of Massachusetts, seeking a judgment declaring that the doctrine of equitable contribution required Great Northern to pay one-half of the past and future defense costs and indemnity payments related to Progression’s claim.  On August 25, 2014, a judge of the District Court allowed Great Northern’s motion for summary judgment.  Insurance Co. of Pa. v. Great N. Ins. Co., 43 F. Supp. 3d 76, 82-83 (D. Mass. 2014).  The judge concluded, “in the absence of binding precedent on this point,” that Great Northern was correct “that any obligation of a co-insurer for equitable contribution to the other insurer does not arise until a claim for defense or indemnity is tendered by the insured or one authorized to act on behalf of the insured.”  ISOP timely appealed and, on May 29, 2015, the First Circuit certified the question before us.

Discussion.  1.  Equitable contribution.  Under the doctrine of equitable contribution, where multiple insurers provide coverage for a loss of an insured, an insurer who pays more than its share of the costs of defense and indemnity may require a proportionate contribution from the other coinsurers.  See Truck Ins. Exch. v. Unigard Ins. Co., 79 Cal. App. 4th 966, 974 (2000) (“Equitable contribution permits reimbursement to the insurer that paid on the loss for the excess it paid over its proportionate share of the obligation . . .”).  See generally S.M. Seaman & J.R. Schulze, Allocation of Losses in Complex Insurance Coverage Claims § 5:2 (3d ed. 2014) (Seaman & Schulze) (“Equitable contribution applies to insurers that share the same type of obligation on the same risk with respect to the same insured”).  “The right of equitable contribution does not depend on an express agreement between the parties to indemnify each other, but, rather, rests upon equitable principles that imply an obligation to contribute ratably toward the payment of a common obligation.”  Lexington Ins. Co. v. General Acc. Ins. Co. of Am., 338 F.3d 42, 49-50 (1st Cir. 2003).  See Seaman & Schulze, supra (“The doctrine is based on principles of equity, not contract”).  Because it does not derive from contract, equitable contribution, unlike subrogation, is a right of the insurer and exists independently of the rights of the insured.  Fireman’s Fund Ins. Co. v. Maryland Cas. Co., 65 Cal. App. 4th 1279, 1294- 1295 (1998).

Equitable contribution is designed to prevent the potential unfair result that the company that pays first is left to cover the entire loss.  See id. at 1295.  ”[W]here multiple insurers or indemnitors share equal contractual liability for the primary indemnification of a loss or the discharge of an obligation, the selection of which indemnitor is to bear the loss should not be left to the often arbitrary choice of the loss claimant.”  Id.  The underlying principle is that “each [insurer] pays its fair share and one does not profit at the expense of the others.”  Id. at 1296.  The doctrine recognizes that an insured who expects to be paid in full by one insurance company may have no incentive to ask the other insurance company covering the same risk to pay its share.  See Truck Ins. Exch., 79 Cal. App. 4th at 974.  And the doctrine aims to deprive an insurer of “any incentive to avoid paying a just claim in the hope the claimant will obtain full payment from another coindemnitor.”  Fireman’s Fund Ins. Co., supra at 1295.  Apart from ensuring fairness, equitable contribution furthers the basic risk-spreading purpose of insurance by allowing insurers to distribute the costs of a claim equally among all insurers with coverage obligations.  See S. Plitt, D. Maldonado, & J.D. Rogers, Couch on Insurance 3d § 1:9 (Supp. 2015).

For these reasons, the majority of jurisdictions recognize the equitable contribution doctrine.  See Seaman & Schulze, supra at § 5:2 (citing cases from jurisdictions recognizing equitable contribution and noting that only a “minority of states” do not allow it).  We are among the majority of States that have recognized the right of an insurer to seek equitable contribution from coinsurers who cover the same risk.  See Mission Ins. Co. v. United States Fire Ins. Co., 401 Mass. 492, 498-500 (1988) (where two policies create “umbrella-type excess insurance,” both insurers must “contribute equally until the policy with the lower limit is exhausted”); Travelers Ins. Co. v. Aetna Ins. Co., 359 Mass. 743 (1971) (affirming order requiring coinsurer to provide contribution to insurer that paid settlement amount for jointly covered claim).  See also Rubenstein v. Royal Ins. Co. of Am., 44 Mass. App. Ct. 842, 852 (1998), S.C., 429 Mass. 355 (1999) (“Of course, there is no bar against an insurer obtaining a share of indemnification or defense costs from other insurers under the doctrine of equitable contribution”).   Cf. Boston Gas Co. v. Century Indem. Co., 454 Mass. 337, 347-348, 365-366 (2009) (where various insurers provided coverage for environmental damage over many years, pro rata allocation produces most equitable result for “long-tail claims” because it avoids saddling one insurer with full loss and “promotes judicial efficiency, engenders stability and predictability in the insurance market, provides incentive for responsible commercial behavior, and produces an equitable result”).  We have recognized the right of equitable contribution in past cases, and now clearly declare that we adopt the doctrine.

2.  Selective tender.  Great Northern does not challenge the wisdom of the equitable contribution doctrine but contends that it does not apply in this case because Progression purposely tendered the workers’ compensation claim only to ISOP.  It argues that “there is no support in the case law of any jurisdiction for the proposition that, in the absence of exceptional circumstances, the doctrine of equitable contribution can override explicit, unambiguous policy language.”  Lexington Ins. Co., 338 F.3d at 50.  And it notes that, under its workers’ compensation insurance policy with Progression, it had no duty to provide coverage unless Progression “fully complied with all of the terms and conditions of the policy.”  One of those terms required Progression to give notice to Great Northern “at once if injury occurs that may be covered” by the policy.  Because Progression purposely gave no such notice, Great Northern claims that it had no duty to provide coverage for the losses suffered by Progression’s injured employee.  It also claims that, because it had no duty to provide coverage, there can be no equitable contribution, which is predicated on multiple insurers providing coverage for the same risk.

Although it does not use the term, Great Northern essentially asks us to recognize the “selective tender” exception to the doctrine of equitable contribution, which provides that, “where an insured has not tendered a claim to an insurer, that insurer is excused from its duty to contribute to a settlement of the claim.”  Mutual of Enumclaw Ins. Co. v. USF Ins. Co., 164 Wash. 2d 411, 421 (2008).  The exception has been recognized by only “a minority of jurisdictions.”  R. Segalla, Couch on Insurance 3d § 200:37 (2005).  See, e.g., John Burns Constr. Co. v. Indiana Ins. Co., 189 Ill. 2d 570, 574 (2000); Mutual of Enumclaw Ins. Co., supra at 421-422.  The Supreme Court of Washington adopted the “selective tender” exception, reasoning:

“Equity provides no right for an insurer to seek contribution from another insurer who has no obligation to the insured. . . .  The duties to defend and indemnify do not become legal obligations until a claim for defense or indemnity is tendered.  Further, the insurer who seeks contribution does not sit in the place of the insured and cannot tender a claim to the other insurer.  Thus, if the insured has not tendered a claim to an insurer prior to settlement or the end of trial, other insurers cannot recover in equitable contribution against that insurer” (emphasis in original; footnote omitted).

Mutual of Enumclaw Inc. Co., supra at 420-421.  As this excerpt makes clear, the underlying premise of the selective tender exception is that, if the insured chose not to tender a claim to an insurer, the insurer has no obligation to defend or indemnify that claim and therefore has no obligation to contribute towards the defense or indemnification.  That premise is incorrect with respect to workers’ compensation insurance under Massachusetts law.

Workers’ compensation insurance is a creature of statute, and all workers’ compensation insurance policies must be interpreted to comply with applicable statutes and regulations governing workers’ compensation.  See generally G. L. c. 152, §§ 26, 44; Darcy v. Hartford Ins. Co., 407 Mass. 481, 485 (1990) (notice provision in workers’ compensation insurance policy interpreted in accordance with applicable statute).  General Laws c. 152, § 26, provides that when an employee is injured in the course of his or her employment, that employee “shall be paid compensation by the insurer or self-insurer.”  Therefore, under Massachusetts law, although the employer purchases the workers’ compensation policy, a workers’ compensation insurer is directly liable to an injured employee for the workers’ compensation benefits provided by law; the insurer does not reimburse the employer for its payment of these benefits.

Under Massachusetts workers’ compensation insurance law, an injured employee presents a claim for compensation by providing notice of the injury in writing “to the insurer or insured [i.e., the employer] as soon as practicable” after the incident causing the injury, stating the time, place, and cause of the injury (emphasis added).  G. L. c. 152, §§ 41, 42.  The employer is required to give notice of the injury to the department and its workers’ compensation insurer within seven days, but the failure to do so results only in a nominal fine to the employer;[3] it does not bar the employee from obtaining compensation from the workers’ compensation insurer.  The employee is barred from receiving workers’ compensation benefits under G. L. c. 152, § 44, only if the insurer, the insured (i.e., the employer), and their agent had no knowledge of the injury and the insurer was prejudiced by the absence of notice.  See G. L. c. 152, § 44.  By giving notice of the injury to the employer alone, an employee preserves his or her entitlement to workers’ compensation benefits.

In light of these statutory provisions, Great Northern’s obligation to defend and indemnify the claim was triggered by the notice given to Progression by its injured employee, regardless of whether Progression gave notice of the injury to Great Northern.  Therefore, as applied to workers’ compensation benefits, the language in Great Northern’s policy providing that its duty of coverage is contingent on the employer providing notice of the injury is contrary to Massachusetts law, and null and void with respect to a Massachusetts employee.

The Supreme Court of Utah considered whether to adopt the selective tender exception where multiple insurers provided overlapping workers’ compensation coverage and rejected it for the same reasons we do.  Workers Compensation Fund v. Utah Business Ins. Co., 296 P.3d 734, 739 (Utah 2013).  The court explained that Utah’s workers’ compensation statute (like ours) provides that insurers are liable for injuries reported by employees regardless of whether employers notify or formally tender claims to insurers.  Id.  Because “[a]ll insurers . . . are automatically liable for claims reported to employers,” the court held that “[t]he statutory scheme . . . precludes [it] from adopting the [selective] tender doctrine in the context of workers compensation.”  Id.

The selective tender exception also does not accord with Massachusetts law governing general liability insurance.  Under Massachusetts law, an insurer’s coverage obligation is triggered by notice regardless of the timing or the source of such notice; late notice or notice from a third party does not preclude coverage unless the insurer is prejudiced.  See G. L. c. 175, § 112; Boyle v. Zurich Am. Ins. Co., 472 Mass. 649, 655-659 (2015).  Specifically, pursuant to G. L. c. 175, § 112, “[a]n insurance company shall not deny insurance coverage to an insured because of failure of an insured to seasonably notify an insurance company of an occurrence . . . which may give rise to liability insured against unless the insurance company has been prejudiced thereby.”  See Johnson Controls, Inc. v. Bowes, 381 Mass. 278, 282 (1980) (insurance company seeking relief from coverage obligations under liability insurance policy because of untimely notice must show both breach of notice provision and prejudice arising from breach).  In Boyle, supra at 658, where a third party notified the insurer of the complaint, we held that the insured’s failure to give notice did not excuse the insurer from its duty to defend unless it could demonstrate that the insured’s breach of its notice obligation caused prejudice by depriving the insurer of the opportunity to mount an effective defense.  Therefore, in Massachusetts, an insured’s failure to tender a claim by giving timely notice does not protect the insurance company from liability on the claim, even if the failure were intentional, unless the insurance company was prejudiced by the untimeliness of the notice.  Because the premise of the selective tender doctrine is that an insurer is not liable on a claim where the insured fails to give timely notice, adoption of the selective tender exception would be in conflict with our statutory and case law governing liability insurance.

Its adoption would also be contrary to sound public policy because it would reward insurers that try to ignore their coverage obligations at the expense of those that conscientiously honor them.  Under the selective tender exception, an insured that has two insurers of the same risk might choose to tender the claim to the insurance company that will promptly honor and pay the claim with minimum inconvenience and paperwork, and avoid tendering the claim to the insurance company that would delay payment of the claim and maximize the inconvenience and paperwork involved in obtaining payment.  Selective tender would prevent the conscientious insurer from seeking equitable contribution from its less conscientious coinsurer.  It would reward the “bad” insurer, who would be spared paying its fair share of the claim, and punish the “good” insurer, who would be required to pay the entirety of the claim alone.  Insurers should be encouraged to promptly accept their coverage obligations and begin defending claims; they should not be rewarded for failing to do.  See Fireman’s Fund Ins. Co., 65 Cal. App. 4th at 1295.

Selective tender would also burden the Massachusetts Insurers Insolvency Fund, which, among other things, covers claims of insureds where the insurer has become insolvent.  See G. L. c. 175D, § 5.  If an employer with two workers’ compensation insurers could negate an insurance company’s workers’ compensation coverage by electing not to notify that insurer of the injury, then the full burden of coverage would fall on the notified insurer and, if that insurer were to become insolvent, on the Fund.  See id.  See also G. L. c. 175D, § 2.

Conclusion.  We answer “no” to the certified question.  Under Massachusetts law, where two workers’ compensation insurance policies issued by different companies provide coverage for the same loss, an employer, by electing to provide notice of the claim only to one insurer, does not foreclose that insurer from obtaining equitable contribution from the other insurer.

The Reporter of Decisions is to furnish attested copies of this opinion to the clerk of this court.  The clerk in turn will transmit one copy, under the seal of the court, to the clerk of the United States Court of Appeals for the First Circuit, as the answer to the question certified, and will also transmit a copy to each party.

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-1902                                       Appeals Court

COMMONWEALTH  vs.  TITUS T. ROYAL.

No. 14-P-1902.

Suffolk.     December 1, 2015. – March 7, 2016.

Present:  Rubin, Maldonado, & Massing, JJ.

Motor Vehicle, License to operate.  License.  Registrar of Motor Vehicles, Records.  Evidence, Hearsay, Business record. Notice.  Practice, Criminal, Hearsay.

Complaint received and sworn to in the Charlestown Division of the Boston Municipal Court Department on December 11, 2013.

The case was heard by Lawrence E. McCormick, J.

Rachel T. Rose for the defendant.
Priscilla Guerrero (Cailin M. Campbell, Assistant District Attorney, with her) for the Commonwealth.

     MASSING, J.  The defendant, Titus T. Royal, appeals from his conviction, after a bench trial in the Charlestown Division of the Boston Municipal Court Department, of driving with a suspended license in violation of G. L. c. 90, § 23.  He claims that the Commonwealth relied on inadmissible hearsay evidence to prove the element of license suspension, that the Commonwealth failed to prove that the registry of motor vehicles (registry) mailed him notice of its intent to suspend his license, and that the evidence was insufficient to sustain his conviction.  Because the Commonwealth’s evidence of license suspension — an officer’s testimony that he “ran . . . the [defendant’s driver’s] license number through the Registry of Motor Vehicles” and it “came with a status of suspended” — was inadmissible hearsay, we reverse the conviction.

Background.  On the morning of November 4, 2013, State Trooper Jeffrey Morrill, who was the only witness to testify at trial, stopped the car the defendant was driving for having an expired registration decal.  Using the laptop computer in his cruiser, Morrill “activated C[J]IS”[1] and ran the car’s registration and the defendant’s driver’s license through the registry database.  Over the defendant’s objection that the testimony was hearsay, Morrill stated, “The registration came back as status expired, non-renewable.  And the Massachusetts license came with a status of suspended.”

In addition, the Commonwealth introduced in evidence four certified registry documents.  These included two notices of the registry’s intent to suspend the defendant’s license, both dated August 5, 2013, addressed to the defendant.  The first notice informed the defendant that on the basis of “3 Surchargeable Events,” the registry would suspend his license on November 3, 2013, unless he timely completed a driver retraining program.[2]  The second notice informed him that his license would be suspended on September 4, 2013, if he failed to pay $ 300 owed for delinquent citations and fines.

Each notice was accompanied by a corresponding registry document entitled “USPS Mailing Confirmation.”  Each mailing confirmation record included the printed statement, “CREATED BY RMV ON:  08/05/2013″ — the same date as the notices.  The confirmation associated with the first notice further indicated, “RECEIVED BY USPS:  08/06/2013 21:03, AT POST OFFICE:  02205.”  The second mailing confirmation similarly indicated that it was “received” by “USPS” on “08/07/2013 19:59″ at the same post office.

The four documents were certified by the registrar of motor vehicles (registrar) under G. L. c. 90, § 22, as being “true copy(s) of the driving history and notice(s) of suspension/revocation as appearing in the registrar’s records.”  The registrar further attested, “I hereby certify that on 01/09/14 his/her license or right to operate was reinstated in the Commonwealth of Massachusetts.”

Discussion.  1.  License suspension.  To prove the crime of operating a motor vehicle after license revocation or suspension, the Commonwealth must prove beyond a reasonable doubt that (1) the defendant operated a motor vehicle, (2) that at the time of operation the defendant’s license had been revoked or suspended, and (3) that the defendant received notice that his license had been suspended or revoked.[3]  See G. L. c. 90, § 23; Instruction 5.2 of the Criminal Model Jury Instructions for Use in the District Court (2013).[4]  The defendant argues that the Commonwealth’s evidence of the second element — that the defendant’s license was suspended — was inadmissible hearsay.  We agree.

“Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Commonwealth v. Randall, 50 Mass. App. Ct. 26, 27 (2000).  See Mass. G. Evid. § 801(c) (2015).  In Randall, supra, to prove that the defendant was the driver of a van that was involved in a gas station burglary, a police officer testified “that a registry check of the license plate on the van indicated that the van belonged to the defendant.”  We held that the substantive use of this testimony to prove ownership of the van was improper and warranted reversal of the conviction.  Id. at 28.  Morrill’s testimony that a registry check of the defendant’s license indicated that the license had been suspended, used to prove that very fact, is indistinguishable from the hearsay testimony held to be impermissible in Randall.

The Commonwealth contends that Morrill’s testimony regarding the result of his registry record check was not hearsay “because it was not a statement made by a person; it was a record.”  This contention has some support in our recent cases.  See Commonwealth v. Thissell, 457 Mass. 191, 197 n.13 (2010); Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 326-327 (2009) (computerized mapping tool’s measurement of distance does not constitute “statement”); Commonwealth v. Perez, 89 Mass. App. Ct. 51, 56 (2016), quoting from Mass. G. Evid. § 801(a), at 260 (2015) (“‘Statement’ means a person’s oral assertion, written assertion, or nonverbal conduct” [emphasis added]).[5]

When considering the potential hearsay implications of computer records, courts have drawn a distinction between “computer-generated” and “computer-stored” records.  See, e.g., Thissell, supra; People v. Holowko, 109 Ill. 2d 187, 191-192 (1985); State v. Armstead, 432 So. 2d 837, 839-840 (La. 1983); State v. Kandutsch, 336 Wis. 2d 478, 501-506 (2011).  Computer-generated records “are those that represent the self-generated record of a computer’s operations resulting from the computer’s programming.”  Kandutsch, supra at 503-504.  “Because computer-generated records, by definition, do not contain a statement from a person, they do not necessarily implicate hearsay concerns.”  Thissell, supra.  Computer-stored records, by contrast, “constitute hearsay because they merely store or maintain the statements and assertions of a human being.”  Kandutsch, supra at 503.

The distinction between computer-stored and computer-generated records depends on the manner in which the content was created — by a person or by a machine.  Computer-generated records are the result of computer programs that follow designated algorithms when processing input and do not require human participation.  See Kerr, Computer Records and the Federal Rules of Evidence, 49 U.S. Attorneys’ Bull. 25, 26 (Mar. 2001).  Examples include automated teller machine receipts, log-in records from Internet service providers, and telephone records. Ibid.  Computer-stored records generally refer to documents that contain writings of a person or persons that have been reduced to electronic form, such as electronic mail messages, online posts, and word processing files.  Ibid.

Although not using the term “computer-generated,” the United States Court of Appeals for the Ninth Circuit has held that assertions made by a machine “without any human intervention” are not hearsay because “there’s no statement as defined by the hearsay rule.”  United States v. Lizarraga-Tirado, 789 F.3d 1107, 1110 (9th Cir. 2015).  Accordingly, the court held that a “tack” placed on a map and automatically labeled with global positioning system coordinates by Google Earth was not hearsay.  Id. at 1109-1110.  The court further observed that concerns regarding the accuracy and reliability of “machine statements” “are addressed by the rules of authentication, not hearsay.”  Id. at 1110.

Some computer records may be classified as hybrids, “containing both computer-stored records and ‘human statements,’ as well as computer-generated data.”  Thissell, supra.  Hybrid documents present both hearsay and authentication concerns.  Ibid.

In this case, the discussion of the defendant’s hearsay objection at trial did not include details explaining how registry records are created, or how police officers gain access to these records electronically through CJIS.  In our view, Morrill’s computer check underlying his testimony that the defendant’s license “came with a status of suspended” is unlike the introduction in evidence of automated bank records, see Perez, supra, or computer-generated mapping information from electronic monitoring devices, see Thissell, supra at 196-197; Kandutsch, supra at 501-506, in that human action was required both to create and retrieve this computer-stored information.[6]  The Commonwealth has not persuaded us that Randall, 50 Mass. App. Ct. 27-28, was wrongly decided because registry records are computer-generated and free from hearsay concerns.

We note that the Commonwealth could have proven the element of license suspension without implicating the hearsay rules if it had introduced a properly certified copy of a registry driving history record showing that the defendant’s license had been suspended.  “[Registry] records are maintained independent of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records under G. L. c. 233, § 78, as well as pursuant to G. L. c. 233, § 76.”  Commonwealth v. Ellis, 79 Mass. App. Ct. 330, 335 (2011), quoting from Commonwealth v. Martinez-Guzman, 76 Mass. App. Ct. 167, 171 n.3 (2010).  See G. L. c. 90, § 30 (providing for admissibility of certified copies of registry records).

The use of Morrill’s hearsay testimony was prejudicial error warranting reversal of the conviction.  We review for prejudicial error because, contrary to the defendant’s suggestion, the introduction of the registry records through Morrill did not rise to the level of constitutional error.  Registry records of driver history are not “testimonial” and do not raise Sixth Amendment to the United States Constitution confrontation clause concerns.  Commonwealth v. Ellis, supra at 335-336, citing Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 904 (2010).

Nonetheless, the improperly admitted hearsay was the only direct evidence that the Commonwealth offered as proof of an essential element of the crime, and it served as a crucial foundation for the guilty finding.[7]  We cannot say that the evidence “did not influence the jury, or had but very slight effect.”  Randall, supra at 28, quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).[8]

2.  Notice of suspension.  Because the issue may recur at any retrial, we address the defendant’s additional contention that the registry’s mailing confirmation documents were inadmissible under Commonwealth v. Parenteau, 460 Mass. 1 (2011).

In Parenteau, to prove the element that the defendant received notice that his license was suspended or revoked, the Commonwealth introduced a copy of the notice of suspension accompanied by the registrar’s attestation that the notice had been mailed on the date shown on the notice.  Id. at 4.[9]  Observing that the registrar’s certification was “a solemn declaration made by the registrar for the purpose of establishing the fact that notice of license revocation was mailed to the defendant . . . , and, by inference was received by him,” id. at 8, the court held that the certification was testimonial hearsay and violated the defendant’s Sixth Amendment right to confrontation in the absence of live testimony from a registry witness.  Id. at 8-9.

The court noted that a contemporaneous business record showing that the notice had been mailed would not have raised the same concerns.  “If such a record had been created at the time the notice was mailed and preserved by the registry as part of the administration of its regular business affairs, then it would have been admissible at trial.”  Id. at 10.  The mailing confirmation records introduced in this case appear to be such contemporaneous business records, now maintained by the registry in response to the Parenteau decision.  They were properly admitted as evidence that the registry mailed, and prima facie evidence that the defendant received, the notices of intent to suspend his license.

Thus, the Commonwealth offered specific proof that the notices were mailed to the defendant; it did not rely on evidence of the registry’s “regular practice.”  Contrast Commonwealth v. Oyewole, 470 Mass. 1015, 1016 (2014).  The defendant points to certain apparent discrepancies in the mailing confirmation records, for example, that they attempt “to memorialize actions that had not yet occurred — both documents were created before” the post office “received” them — but such cavils go to weight rather than admissibility.[10]  As the mailing confirmation records permit, but do not require, the trier of fact to find that the defendant received notice, he is entitled to introduce relevant evidence and argument calling his receipt of notice into question.  See Commonwealth v. Crosscup, 369 Mass. 228, 242 (1975); Parenteau, supra at 6 n.8.

Judgment reversed.

Finding set aside.

Full-text Opinions