NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11902

KATZ, NANNIS & SOLOMON, P.C., & others[1]  vs.  BRUCE C. LEVINE & another.[2]

Norfolk.     December 10, 2015. – March 9, 2016.

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

Massachusetts Arbitration Act.  Arbitration, Judicial review, Scope of arbitration, Confirmation of award, Authority of arbitrator, Damages, Attorney’s fees.  Contract, Arbitration.  Practice, Civil, Attorney’s fees, Costs.  Damages, Attorney’s fees.

Civil action commenced in the Superior Court Department on February 27, 2013.

A motion to confirm an arbitration award was heard by Patrick F. Brady, J.; a motion for attorney’s fees and costs was heard by him; and entry of separate and final judgments was ordered by him.

The Supreme Judicial Court granted an application for direct appellate review.

Thomas J. Carey, Jr. (Daniel J. Cloherty & Victoria L. Steinberg with him) for Bruce C. Levine.
Warren D. Hutchison (Nancy M. Reimer with him) for the plaintiffs.

Joseph S.U. Bodoff, for Levine, Caufield, Martin & Goldberg, P.C., was present but did not argue.

BOTSFORD, J.  The central question presented in this appeal is whether parties to a commercial arbitration agreement may alter by contract the scope or grounds of judicial review of an arbitration award that are set out in the Massachusetts Uniform Arbitration Act for Commercial Disputes (MAA), G. L. c. 251.  We decide that the grounds of judicial review are limited to those delineated in G. L. c. 251, §§ 12 and 13.

Background.  The defendant Bruce C. Levine and the plaintiffs Allen G. Katz, Lawrence S. Nannis, and Jeffery D. Solomon were members of an accounting firm known as Levine, Katz, Nannis & Solomon, P.C. (LKNS or firm).  They were each a shareholder in the firm, and a party to a stockholder agreement dated October 1, 1998 (agreement), that governed their professional association and relationship.[3]  In 2011, Katz, Nannis, and Solomon, purporting to act pursuant to the agreement, voted to require the withdrawal of Levine as a director and stockholder in LKNS; Levine disagreed that the termination of his stockholder interest and position was in accordance with the agreement’s terms, and the arbitration at issue in this case concerned that dispute.  We summarize the relevant provisions of the agreement, the parties’ dispute leading to arbitration, and the arbitration award, followed by a summary of the proceedings in the Superior Court that led to this appeal.

The agreement.  The agreement provides that a stockholder may withdraw voluntarily or be required to withdraw involuntarily.  Two provisions in the agreement relate to involuntary withdrawal:

“4(e)  Involuntary Withdrawal.  A Stockholder may be required to withdraw from the Corporation, for any reason, upon the affirmative vote of the holders of at least 75% of the issued and outstanding Shares, excluding the Shares of the subject Stockholder.

“4(f)  For Cause Withdrawal.  A Stockholder may be required to withdraw from the Corporation for ‘Cause.’  ’Cause’ shall be deemed to exist upon the occurrence of any of the following:

“(i)  Commission of an act of fraud, dishonesty or the like involving the Corporation or any of its clients.”[4]

Under section 5(a)(i) of the agreement a voluntarily withdrawing stockholder is entitled to the redemption of his shares at “an amount equal to the accrual basis book value of the [firm]” multiplied by the percentage of shares issued and outstanding held by the withdrawing stockholder.  Section 5(a)(i) also provides that a stockholder subject to an involuntary withdrawal, but not “for cause,” is also generally entitled to redemption.  However, section 5(a)(iii) provides:

“If the withdrawal is for Cause (as defined in Section 4[f]) or as described in Section 8(a)(iii) [i.e., where there is involuntary withdrawal and stockholder competes with the firm], the subject Stockholder shall forfeit his Shares . . . and the Redemption Price shall be $ zero.”

In addition to the redemption of shares, under section 8(a)(i), in certain circumstances, a withdrawing stockholder is entitled to the payment of deferred compensation.  However, under section 8(a)(v), a stockholder whose withdrawal is for cause receives no deferred compensation.  In addition, under section 8(a)(iii), if a stockholder’s withdrawal is an “involuntary withdrawal pursuant to Section 4(e)” and the stockholder competes with the firm within three years after his withdrawal, he receives no deferred compensation and must compensate the firm pursuant to a stipulated formula.  A stockholder who withdraws and within three months employs an employee of the firm also must pay liquidated damages to the firm, under section 8(a)(vii).

Section 13(i) provides that the agreement is to “be subject to and governed by the laws of the Commonwealth of Massachusetts pertaining to agreements executed in and to be performed in the Commonwealth of Massachusetts.”  Section 13(j) contains an arbitration clause that provides in relevant part:

“Binding Arbitration.  In the event of any dispute concerning any aspect of this Agreement, the parties agree to submit the matter to binding arbitration before a single arbitrator appointed by the American Arbitration Association . . . .  The decision of the arbitrator shall be final; provided, however, solely in the event of a material, gross and flagrant error by the arbitrator, such decision shall be subject to review in court. . . .  [T]he party against which final, adverse judgment is entered [shall be] responsible for (in addition to its own) the other party’s(ies’) costs and expenses, including reasonable attorneys’ fees.”

The dispute.  The arbitration at issue here arose out of a dispute between Levine and the other three shareholders of LKNS, relating to work Levine had performed for a firm client, Levine’s cousin Linda Sallop and her company (collectively, Sallop).  Sallop sustained tax losses in the amount of $ 750,000 when the Internal Revenue Service (IRS) refused to grant capital gains treatment for an employee stock ownership plan in 2002 because the IRS did not receive the necessary documentation.  In 2004, Levine knew that these events created “problems with Sallop’s [2002] tax return.”  In April, 2007, Sallop threatened to sue Levine and LKNS.  Five months later, Levine submitted a professional liability insurance renewal application on behalf of the firm that did not mention the lawsuit threatened by Sallop.  Sallop sued Levine and LKNS in September, 2008, and Levine retained counsel to represent himself and LKNS in defending against the suit and the threatened attachment of LKNS’s assets.  Levine did not inform Katz, Nannis, or Solomon of the lawsuit, of Levine’s retention of legal counsel on behalf of the firm, or of Sallop’s motion to attach LKNS’s assets at the time that the lawsuit and motion were filed.  Instead, he did so for the first time during a stockholder meeting in February, 2009, just before his deposition in the case.  In March, 2010, Levine informed the three that LKNS’s insurance coverage was rescinded because Levine had failed to disclose Sallop’s threatened lawsuit in a renewal application.

At a special meeting held August 10, 2011, Katz, Nannis, and Solomon voted to terminate Levine’s employment and to remove him as an officer and director of the firm, which then changed its name to Katz, Nannis & Solomon, P.C. (KNS).  Soon after his termination, Levine opened his own accounting firm, Levine, Caufield, Martin & Goldberg, P.C. (LCMG), and a number of employees of LKNS left that firm and joined Levine at LCMG.  The nature and terms of Levine’s withdrawal from the firm and his subsequent competition with KNS were the bases of the dispute between Levine and the other LKNS stockholders, and became the subject of the arbitration proceeding at issue here.

The arbitration and award.  Pursuant to the terms of the agreement’s arbitration clause, the dispute was submitted to binding arbitration before a single arbitrator appointed by the American Arbitration Association.  The arbitrator heard from eleven witnesses over nine days.  On December 19, 2012, the arbitrator issued a partial final award in which he concluded that Levine had been validly terminated or “withdraw[n]” involuntarily as a stockholder in accordance with the agreement, that there was sufficient evidence to require Levine’s withdrawal “for cause,” and that he had been terminated for cause.  The arbitrator concluded, however, that it did not make any difference whether Levine’s involuntary withdrawal or termination was “for cause” pursuant to section 4(f) of the agreement or “for any reason” pursuant to section 4(e), because, following his termination, Levine competed with KNS.  The arbitrator further found that because Levine was terminated for cause, he forfeited his shares and was not entitled to receive deferred compensation.  With respect to damages, the arbitrator determined that Levine would be liable to KNS for, among other things, amounts paid by former clients of LKNS to Levine after his termination for work performed before his termination, liquidated damages for competing with KNS following his termination, as well as liquidated damages on account of employees who left KNS to join Levine.  The arbitrator denied both parties’ requests for attorney’s fees.  After a hearing on damages, the arbitrator issued the final award, ruling that KNS was to receive $ 1,749,293.20,[5] plus statutory interest.

Confirmation of the arbitration award.  On February, 2013, KNS filed the present action in the Superior Court seeking confirmation of the arbitration award and also asserting claims to ensure payment of the arbitration award and prevent Levine from diverting money to LCMG.[6]  Levine filed an answer, an opposition to KNS’s motion to confirm the award, and a cross motion to vacate or modify the arbitration award.  A Superior Court judge (motion judge) allowed KNS’s motion to confirm the award and denied Levine’s cross motion to vacate or modify it.  KNS moved for an award of attorney’s fees, and the judge allowed the motion.  With a stipulation by the parties in place that secured any judgment that would enter against Levine, KNS moved to dismiss the remaining claims against Levine and all claims against LCMG.  In February, 2014, judgment entered confirming the arbitration award, dismissing the remaining claims, and granting KNS attorney’s fees and costs.  Levine thereafter filed a motion for a new trial, to amend or alter the judgment, or for relief from judgment, which the motion judge denied.  Levine filed a timely appeal from both the judgment and the denial of his postjudgment motion.  We granted the defendants’ application for direct appellate review.

Discussion.  1.  Scope of judicial review of arbitrator’s decision.  The parties’ agreement to arbitrate is governed by the MAA, G. L. c. 251.  See G. L. c. 251, § 1.[7]  The role of courts with respect to confirming, vacating, and modifying an arbitration award is outlined in §§ 11 through 13 of the MAA.  Section 11 provides that “[u]pon application of a party, the court shall confirm” an arbitration award unless “grounds are urged for vacating or modifying or correcting the award” as provided in §§ 12 and 13.  G. L. c. 251, § 11.  Section 12 sets forth the available grounds for vacating an arbitration award.[8]  As is relevant here, under § 12, the court shall vacate an award if it “was procured by corruption, fraud or other undue means,” or “the arbitrators exceeded their powers.”  G. L. c. 251, § 12 (a) (1), (3).[9]  Otherwise, a court is “strictly bound by an arbitrator’s findings and legal conclusions, even if they appear erroneous, inconsistent, or unsupported by the record at the arbitration hearing.”  Lynn v. Thompson, 435 Mass. 54, 61 (2001), cert. denied, 534 U.S. 1131 (2002).  An error of law or fact will not be reviewed by a court unless there is fraud; even a grossly erroneous decision is binding in the absence of fraud.  Trustees of the Boston & Me. Corp. v. Massachusetts Bay Transp. Auth., 363 Mass. 386, 390 (1973).

At the core of Levine’s challenge to the arbitrator’s award — and to the motion judge’s confirmation of the award — is the claim that the arbitrator fundamentally misinterpreted the agreement.  Contrary to that interpretation, Levine argues that an involuntary withdrawal under section 4(e) of the agreement is a wholly separate and distinct type of withdrawal from a withdrawal for cause under section 4(f), and that, insofar as the arbitrator found that Levine’s withdrawal was “for cause” under section 4(f), Levine cannot be made subject to any prohibition against competition, because, in his view, the penalty for competing with the firm only applies if the shareholder is terminated “involuntarily” under section 4(e).  Levine acknowledges that the arbitration agreement is governed by G. L. c. 251.  He argues, however, that to the extent his objection to the award is a claim that the arbitrator committed an error of law, Levine is entitled to have a court consider the merits of his claim because in the arbitration clause of the agreement, the parties specifically provided for judicial review of an award to determine whether there was a “material, gross and flagrant error” by the arbitrator.[10]  He reasons that arbitration is strictly a creature of contract, that the aim of the MAA is to enforce the parties’ contractual agreement to arbitrate, and that, therefore, the parties’ agreed-upon standard of judicial review should be enforced.

Although arbitration is a matter of contract, Commonwealth v. Philip Morris Inc., 448 Mass. 836, 843 (2007), we disagree that parties, through contract, may modify the scope of judicial review that is set out in §§ 12 and 13 of the MAA.  As previously stated, the directive of G. L. c. 251, § 11, is that a court “shall confirm” an award unless grounds for vacating it pursuant to §§ 12 and 13 are shown; this statutory language “carries no hint of flexibility.”  See Hall St. Assocs., L.L.C. v. Matell, Inc., 552 U.S. 576, 587 (2008) (Hall St.).

In Hall St., the United States Supreme Court considered whether the grounds stated in the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et seq. (2012), for vacating or modifying an arbitration award were the exclusive grounds, or whether parties could expand the grounds — and thereby expand the scope of judicial review — by the terms of their agreement.  See 552 U.S. at 578, 586.  The Court held that under the FAA the statutory grounds are the exclusive grounds for judicial review and parties are unable to contract otherwise.  Id. at 586.  However, the Court also made clear that States are free to reach a different result on grounds of State statutory law or common law.  Id. at 590 (“The FAA is not the only way into court for parties wanting review of arbitration awards:  they may contemplate enforcement under state statutory or common law, for example, where judicial review of different scope is arguable”).[11]  Nonetheless, the Court’s analysis of the FAA in Hall St. remains instructive and we reach the same result in relation to the MAA.

The provisions of the MAA governing judicial review of an arbitration award are substantively (and often linguistically) identical to the analogous provisions in the FAA.[12]  The Court in Hall St. ruled that “the statutory text gives [the Court] no business to expand the statutory ground.”  Id. at 589.  We are not persuaded that there is any reason to read the corresponding provisions of the MAA differently.  See Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass. 390, 394 (2009) (“the language of the FAA and the MAA providing for enforcement of arbitration provisions are similar, and we have interpreted the cognate provisions in the same manner”).

As the Court in Hall St., 552 U.S. at 586, recognized with respect to the FAA, the legislative intent behind the MAA becomes more clear when the language of its provisions governing judicial review is compared to other provisions in which the Legislature explicitly endorsed the parties’ right to contract.  For example, G. L. c. 251, § 3, directs that the parties’ contractual provisions for appointing an arbitrator are to be followed in the first instance, and sets up a default method of appointment if a contractually defined method is not available:

“If the arbitration agreement provides a method of appointment of arbitrators, such method shall be followed.  In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or if an arbitrator appointed fails or is unable to act and his successor has not been duly appointed, the court on application of a party shall appoint an arbitrator.”

In contrast, G. L. c. 251, §§ 11 through 13, are not default provisions.  Section 11 commands that “the court shall confirm an award” (emphasis added) except in the circumstances described in §§ 12 and 13; the language of the statute leaves no room for parties to contract otherwise.

Our reading of G. L. c. 251, §§ 11 through 13, to mean that a court will review an arbitrator’s award to determine only whether one of the statutory grounds for vacating, modifying, or correcting the award has been met accords with this court’s interpretation of the MAA since its enactment in 1960.  See Beacon Towers Condominium Trust v. Alex, 473 Mass. 472, 474 (2016) (“[A]n arbitration award is subject to a narrow scope of review. . . .  We do not review an arbitration award for errors of law or errors of fact” [quotation and citation omitted]); Lynn, 435 Mass. at 62 n.13 (“The Legislature has identified the extremely limited grounds on which courts may vacate or modify arbitration awards”); Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990) (Plymouth-Carver) (“Courts inquire into an arbitration award only to determine if the arbitrator has exceeded the scope of his authority, or decided the matter based on ‘fraud, arbitrary conduct, or procedural irregularity in the hearings’” [citation omitted]); Floors, Inc. v. B.G. Danis of New England, Inc., 380 Mass. 91, 96 (1980) (“[T]he court should not interject itself or its practice into arbitrations unless required to do so by statutory provision or necessity” [citation omitted]); Trustees of the Boston & Me. Corp., 363 Mass. at 390 (judicial review is based on grounds stated in G. L. c. 251, §§ 12 and 13); Grobert File Co. of Am. v. RTC Sys., Inc., 26 Mass. App. Ct. 132, 135 (1998) (“Once in the arena of arbitration, the powers of the arbitrator concerning the issue are wide and the scope of judicial review of the arbitration proceedings is narrow.  Short of fraud, arbitrary conduct, or significant procedural irregularity, the arbitrator’s resolution of matters of fact or law is binding. . . .  See also other statutory grounds for vacating an arbitration award contained in G. L. c. 251, § 12″ [citations omitted]).  The pertinent language of §§ 11 through 13 of the MAA has not changed since the statute’s enactment, and we continue to adhere to our longstanding reading of it.[13]

In addition to the language of the MAA, there are strong policy considerations that support limiting the scope of judicial review to the statutorily defined “egregious departures from the parties’ agreed-upon arbitration,” Hall St., 552 U.S. at 586, that are listed in G. L. c. 251, §§ 12 and 13.  Allowing parties to expand the grounds for judicial review would “undermine the predictability, certainty, and effectiveness of the arbitral forum that has been voluntarily chosen by the parties” (citation omitted).  Plymouth-Carver, 407 Mass. at 1007.  See Hall St., supra at 588 (purpose of arbitration is to provide efficient alternative to parties seeking finality, not “a prelude to a more cumbersome and time-consuming judicial review process” [citation omitted]).  If parties were able to redefine by contract language the scope of what a court was to review with respect to every arbitration award, it would spawn potentially complex and lengthy case-within-a-case litigation devoted to determining what the parties intended by the contractual language they chose.  This is fundamentally contrary to the intent and purpose of our arbitration statute.  See Lawrence v. Falzarano, 380 Mass. 18, 28 (1980) (“The purpose of G. L. c. 251 governing arbitration is to provide further speedy resolution of disputes by a method which is not subject to delay and obstruction in the courts” [quotation and citation omitted]).[14]  The policy of limited judicial review preserves arbitration as an expeditious and reliable alternative to litigation for commercial disputes.  See Plymouth-Carver, supra.[15]

2.  Vacatur under G. L. c. 251, § 12.  In recognizing that this court may decide that the scope of judicial review is restricted to the grounds set out in G. L. c. 251, § 12, Levine recasts his challenges to the award to fit within the provisions of G. L. c. 251, § 12 (a) (3) (arbitrators exceeded their authority), or § 12 (a) (1) (award was procured by fraud).  The repackaging effort fails.

Levine contends that the arbitrator exceeded his authority in awarding KNS $ 480,412 in liquidated damages on account of Levine’s competing with KNS within three years following Levine’s withdrawal;[16] and $ 1,068,403.70 to compensate for (1) amounts allegedly paid to Levine after his termination from the firm by former firm clients for work that Levine had earlier completed and that had earlier been billed to the clients (accounts receivable); and (2) amounts allegedly paid to Levine after his termination for work that was still in progress at the time Levine left LKNS (work in progress).  An arbitrator exceeds his or her authority by granting relief that is beyond the scope of the arbitration agreement, beyond that to which the parties bound themselves, or prohibited by law.  Superadio Ltd. Partnership v. Winstar Radio Prods., LLC, 446 Mass. 330, 334 (2006), quoting Plymouth-Carver, 407 Mass. at 1007.  ”If the arbitrators in assessing damages commit an error of law or fact, but do not overstep the limits of the issues submitted to them, a court may not substitute its judgment on the matter.”  Lawrence, 380 Mass. at 28-29.  The issues of whether a stockholder’s withdrawal or termination pursuant to section 4(e) or section 4(f) of the agreement (or both) gives rise to damages, and if so, what those damages may be, fall squarely within the broad arbitration clause in the agreement:  ”In the event of any dispute concerning any aspect of this Agreement, the parties agree to submit the matter to binding arbitration.”  Levine asks us to substitute our interpretation of the contract for that of the arbitrator.[17]  Interpreting the agreement is the role of the arbitrator, not this court.  See Plymouth-Carver, 407 Mass. at 1007 (reversing Superior Court’s judgment vacating award where question was one of interpretation of agreement); Greene v. Mari & Sons Flooring Co., 362 Mass. 560, 563 (1972) (“courts have no business overruling [the arbitrator] because their interpretation of the contract is different from his” [citation omitted]).

Levine also argues that the portion of the damages award for payments collected from former KNS clients for accounts receivable and work in progress was procured by fraud.  He contends that KNS misrepresented the amounts that were collected by Levine and his new firm, and the arbitrator erroneously relied on conclusory evidence of LKNS’s historical rate or percentage of collection on billings for Levine’s work to determine damages related to accounts receivable and work in progress while ignoring the evidence that Levine presented.[18]  We agree with the motion judge, who concluded that “the arbitrator’s approach was reasonable and more than fair to Levine” and the arbitrator was under no obligation to credit Levine’s testimony.  There is nothing to show that the arbitrator reached his conclusion on the basis of fraud or undue means, “that is, in an underhanded, conniving, or unlawful manner.”  Superadio Ltd. Partnership, 446 Mass. at 337.  Levine presents nothing more than a dispute over a question of fact that is not reviewable by this court.

1.      3.  Remaining claims.  Levine presents two additional claims:  (1) the motion judge erred in dismissing the remaining counts of KNS’s complaint — that is, the counts that followed the first count for confirmation of the arbitration award; and (2) the judge also erred in awarding KNS attorney’s fees and costs associated with the dismissed claims.

     These claims lack merit.  First, the motion judge did not abuse his discretion in dismissing the remaining counts against Levine and his firm.  After the parties stipulated to a form of security for any judgment that might enter against Levine, the remaining counts of KNS’s complaint — each of which was aimed at securing any potential judgment confirming the arbitration award — all became moot, and the judge was warranted in allowing KNS’s motion to dismiss them.  Second, the judge did not err in awarding attorney’s fees and costs in connection with the dismissed claims.  The agreement provided that “the cost of enforcing any judgment entered by the arbitrator (including reasonable attorney’s fees) shall be borne by the party against whom such award was made and/or judgment entered.”  The claims that supplemented KNS’s request to confirm the award were within the purview of enforcing the judgment and sufficiently interconnected to the confirmation of the award.  Fabre v. Walton, 441 Mass. 9, 10 (2004), Peckham v. Continental Cas. Ins. Co., 895 F.2d 830, 841 (1st Cir. 1990).

1.      Conclusion.  The judgments of the Superior Court confirming the arbitrator’s award and dismissing the additional claims are affirmed, as is the judgment granting attorney’s fees and costs.  The plaintiffs may apply to this court for attorney’s fees and costs in accordance with the procedure set forth in Fabre, 441 Mass. at 10-11.

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-11899

MARIE ESLER  vs.  MARY SYLVIA-REARDON & another.^[1]

Suffolk.     November 3, 2015. – March 9, 2016.

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

Family & Medical Leave Act.  Employment, Retaliation, Termination.

Civil action commenced in the Superior Court Department on March 11, 2010.

The case was tried before Linda E. Giles, J., and a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was heard by her.

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

Herbert L. Holtz (Thomas A. Reed with him) for the defendants.

Jonathan J. Margolis for the plaintiff.

Meghan Hayes Slack & Chetan Tiwari, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief.

BOTSFORD, J.  Only one count of the plaintiff Marie Esler’s eight-count complaint against her former employer, defendant Massachusetts General Hospital (hospital), and her former supervisor, defendant Mary Sylvia-Reardon, survived for purposes of trial.^[2]  In answer to special questions, a jury returned a verdict in Esler’s favor on her claim that the hospital terminated her employment in retaliation for her exercise of the right to take medical leave under the Federal Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq. (2012), and awarded her damages consisting of $ 567,500 in back pay and $ 672,686 in front pay.  The defendants thereafter filed a motion for judgment notwithstanding the verdict (judgment n.o.v.)^[3] or, in the alternative, for a new trial.  See Mass. R. Civ. P. 50 (b), as amended, 428 Mass. 1402 (1998).  The trial judge allowed the motion for judgment n.o.v. but took no specific action on the defendants’ alternative request for a new trial.[4]  The judge also ruled that the issue of front pay should not have been submitted to the jury, and she concluded that there was insufficient evidence to provide for such an award in this case.  In a decision issued pursuant to its rule 1:28, the Appeals Court reversed the entry of judgment for the defendants on the motion for judgment n.o.v. and affirmed the judge’s order with respect to front pay.  The case is now before us for further appellate review.  Like the Appeals Court, we reverse the allowance of the defendants’ motion for judgment n.o.v. and affirm the judge’s order with respect to front pay.  We remand the case to the Superior Court for consideration of the defendants’ alternative request for a new trial.

Factual background.  We summarize facts the jury could have found at trial, viewing the evidence in the light most favorable to Esler and disregarding evidence favorable to the defendants.  See O’Brien v. Pearson, 449 Mass. 377, 383 (2007).  Esler began working as an acute hemodialysis nurse in 1997.  In March, 2003, she was hired by the hospital as a registered nurse in the hemodialysis unit.  Sylvia-Reardon was the nursing director of the unit, and became Esler’s supervisor in approximately 2006.

Six nurses on the unit, including Sylvia-Reardon, have taken FMLA leave.  In November, 2008, Esler made a first request for FMLA leave on account of symptoms, relating in part to a blood disorder, including anxiety and fatigue.  The hospital approved Esler’s request on or about December 2, 2008; the approved leave period was from November 14 to December 15, 2008.  During this leave, and consistent with advice provided by her doctor, who suggested that she engage in pleasurable activities and light exercise to relieve stress, Esler went to New York City to visit friends.  While ice skating in New York, Esler fell and injured her wrist.  On December 5, Esler received a “curt” or “rather nasty” telephone call from Sylvia-Reardon stating that Esler’s FMLA paperwork had not been received and that “your job is in jeopardy and I don’t need to hold your position.”[5]  Esler informed Sylvia-Reardon that she was in New York and could not follow up that day with her physician, to which Sylvia-Reardon responded, “What?  You’re on FMLA leave and you’re in New York [C]ity vacationing?”  When Esler told Sylvia-Reardon about her wrist injury, Sylvia-Reardon responded, “Well, Marie, I need to have you back here next week or I can’t hold your job.”

Soon after this conversation, Esler learned that she had fractured her wrist and injured a tendon in her thumb, and that she needed hand surgery.  She submitted a second request for FMLA leave, which the hospital approved beginning on December 8, 2008, and ending on February 6, 2009, twelve weeks from the start of her initial FMLA leave on November 14, 2008.

Ultimately, Esler was required to wear a cast for six weeks, and she began occupational therapy on January 14, 2009, after the cast was removed.  On January 21, she asked Sylvia-Reardon for permission to delay her return to work by ten days, to February 16, and Sylvia-Reardon agreed.  A letter signed by Esler’s physician and dated January 27 approved her return to work on February 16, with a single restriction:  “No lifting with left hand more than 5 lbs.”  Esler communicated the lifting restriction to the hospital, and she also informed the defendants that she needed to wear a splint or brace.  Sylvia-Reardon responded that she could not accommodate the lifting restriction or the need to wear a splint.  By that point in time, late January, 2009, Esler only needed to wear the brace intermittently, was able to drive, and could do her household chores.  In a telephone conversation on or about January 28, Esler explained these facts to Sylvia-Reardon and added that she was “making good progress so things could be very different by” the date of Esler’s return to work, February 16, more than two weeks away.  Although the dialysis machines and beds were on wheels, and none of the equipment that a hemodialysis nurse would have to lift weighs more than five pounds, in the telephone conversation, Sylvia-Reardon instructed Esler to cancel an occupational health assessment, which was part of the hospital’s return to work process.  Sylvia-Reardon never inquired further about Esler’s medical progress or when the restrictions would be lifted.  At that point, the hospital transitioned Esler to inactive status because, it stated, her job could not be performed with those restrictions.

In December, 2008, Sylvia-Reardon had hired an additional registered nurse, Darlene Crisileo, to work in the hemodialysis unit on a part-time basis.  Sylvia-Reardon did so to cover certain staffing shortfalls, including Esler’s absence on FMLA leave, and she was required to seek permission to exceed the hemodialysis unit’s budget in order to make the hire.  On February 5, 2009, one day before Esler’s twelve-week FMLA leave formally expired and eleven days before the end of extended absence she had approved, Sylvia-Reardon informed all the staff of the unit that Crisileo would replace Esler.  Although Crisileo was being trained to perform dialysis at that time, she would not complete her training or be able to perform fully the job of a hemodialysis nurse until at least April 6, 2009 — a date that was after Esler would have been able to perform all her nursing duties without any medical restrictions.

Discussion.  1.  Family Medical Leave Act.  The FMLA entitles eligible employees to take up to twelve weeks of leave during a twelve-month period because “of a serious health condition that makes the employee unable to perform the functions of the position of such employee.”  29 U.S.C. § 2612(a)(1)(D) (2012).  On return from that leave, the FMLA requires (with exceptions not applicable here) that the employee be restored to the same or an equivalent position.  29 U.S.C. § 2614(a) (2012).  See 29 C.F.R. § 825.214 (2015).  See also Henry v. United Bank, 686 F.3d 50, 55 (1st Cir. 2012).  To safeguard these substantive entitlements, the FMLA contains proscriptive provisions to protect employees from retaliation or discrimination based on the exercise of the FMLA’s substantive rights.^[6]  See 29 U.S.C. § 2615(a)(1) (2012) (“unlawful for any employer to interfere with, restrain, or deny the exercise of . . . any right provided” by act).  See also 29 U.S.C. § 2615(a)(2) (2012); 29 C.F.R. § 825.220 (2015).  An employer may not, for example, “use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.”  29 C.F.R. § 825.220(c).  See Henry, supra.

The FMLA’s proscriptive provisions are at issue here.  It is undisputed that Esler was unable to perform completely the work of a hemodialysis nurse when her twelve weeks of FMLA leave were exhausted on February 6, 2009 — or by February 16, 2009, the date she was scheduled to return to work at the hospital.  Esler does not contend that she had a substantive FMLA right to reinstatement or that her substantive FMLA rights otherwise were violated.  See 29 C.F.R. § 825.216(c) (2015) (employee not entitled to reinstatement “[i]f the employee is unable to perform an essential function of the position because of . . . the continuation of a serious health condition”).  Instead, her claim is that the FMLA’s proscriptive provisions were abridged because the hospital’s decision not to reinstate her to her former position after the FMLA leave period was exhausted was made in retaliation for her initial exercise of rights under the FMLA.  See Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 327 (1st Cir. 2005) (“claim for retaliatory discharge from employment is not extinguished by a finding that the plaintiff was unable to return to work at the expiration of his [twelve]-week period of FMLA leave”).

2.  Judgment n.o.v.  In reviewing the allowance of a motion for judgment n.o.v., we view the evidence in the light most favorable to the plaintiff, and we “consider whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the nonmoving party” (quotation and citation omitted).  Phelan v. May Dep’t Stores Co., 443 Mass. 52, 55 (2004).  The jury heard and considered all the evidence under instructions that neither party questions, and the jury found in favor of Esler.  See Cahaly v. Benistar Prop. Exch. Trust Co., 451 Mass. 343, 350, cert. denied, 555 U.S. 1047 (2008) (importance of jury to our justice system renders nullifying jury verdict “a matter for the utmost judicial circumspection”).

The employer’s intent or motivation is pivotal to a claim for violation of the FMLA’s proscriptive provisions because, although “an employee may not be penalized for exercising her rights under the statute, an employee may nevertheless be discharged, not promoted, or denied benefits for independent reasons during or after her taking of FMLA leave.”  Carrero-Ojeda v. Autoridad de Energia Eléctrica, 755 F.3d 711, 719 (1st Cir. 2014).[7]  A panel of the Appeals Court reviewed the trial record and determined that the evidence, although circumstantial, was sufficient to support the jury’s implicit determination that the reason advanced by the defendants for Esler’s termination — an inability to perform fully the duties of a hemodialysis nurse — was a pretext for retaliation on account of Esler’s having taken FMLA leave.  We have carefully reviewed the record as well, and although the issue is close, we reach the same conclusion as the Appeals Court.  In particular, a jury could have found that Esler’s medical condition continued to improve after her cast was removed in January, 2009, that by the end of January she had a good range of motion in her left wrist and was strengthening it by using a five-pound weight, that no component of the hemodialysis equipment handled by the hemodialysis nurses weighed more than five pounds, and that there was no meaningful restriction on Esler’s ability to perform the essential aspects of a hemodialysis nurse’s job.  Moreover, Esler was an experienced hemodialysis nurse, and the injury was not to her dominant hand.  Finally, although Esler may not have been able to perform fully all of the functions of her nursing job immediately on the day she was to return to work from FMLA leave, she was progressing well in her recovery; nonetheless, the defendants hired a nurse to fill her position before her FMLA leave had officially ended — a nurse whose training would not be complete until April, 2009, and who would not have been able to perform all the duties of a hemodialysis nurse for a longer period of time than was likely to be true of Esler.  This evidence, combined with Sylvia-Reardon’s negative comments about Esler using her FMLA leave as a “vacation”[8] and the close relationship in time between Esler’s FMLA leave and the date of her termination, was sufficient, even if far from compelling, to permit a jury to conclude that Esler was terminated in retaliation for having taken that leave, and not because of a splint and a lifting restriction.

3.  Motion for a new trial.  In addition to moving for judgment n.o.v., the defendants requested, in the alternative, a new trial.  Although the judge’s order allowed the consolidated “motion” and her memorandum of decision explains her reason for entering judgment n.o.v., as mentioned, the judge did not make specific reference to the alternative request for a new trial, nor did she “specify the grounds for granting or denying the motion,” as Mass. R. Civ. P. 50 (c), 365 Mass. 814 (1974), requires.  On the record before us, we cannot know whether the judge intended to conditionally allow (or, perhaps, deny) the motion for a new trial, or even to reserve ruling on it.  In the exercise of our discretion, we therefore remand the case to the Superior Court for further proceedings concerning the defendants’ alternative request for a new trial.  Cf. Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 128 (1992) (reversing conditional grant of new trial where inadequate reasons were specified).

4.  Front pay.  We briefly address the question whether an award of front pay under the FMLA should be determined by the court rather than a jury.  See 29 U.S.C. § 2617(a)(1)(B) (2012) (“Any employer who violates [§] 2615 of this title shall be liable to any eligible employee affected . . . for such equitable relief as may be appropriate, including employment, reinstatement, and promotion”).  Although the Federal courts may not be entirely unanimous on the topic, compare Traxler v. Multnomah County, 596 F.3d 1007, 1014 (9th Cir. 2010) (availability and amount of front pay award reserved for court), with Arban v. West Publ. Corp., 345 F.3d 390, 406 (6th Cir. 2003) (jury determines amount of front pay award), several of the Federal Circuit Courts of Appeals treat front pay as an equitable remedy appropriate for a judge’s determination.  See Traxler, supra at 1011, and cases cited.  See also Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 379-380 (1st Cir. 2004).  Because “under the FMLA, front pay is an equitable remedy,” Traxler, supra at 1011, and because we see no reason to reach a result different from that which many of the Federal Courts do on a point of Federal law, we conclude that front pay under the FMLA is appropriate for a judge’s consideration.

The trial judge in the present case submitted the issue of front pay to the jury, but in deciding the defendants’ motion for judgment n.o.v. or a new trial, the judge ruled that the issue was one for her to decide.  Considering the merits herself, the judge concluded that Esler had not established the requisite factual basis to warrant an award of front pay.  The judge’s decision on this issue is supported by the record and will be affirmed.

Conclusion.  Applying the standard that considers whether, “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the [nonmovant]” (citation omitted), O’Brien, 449 Mass. at 383, we conclude that the evidence at trial was sufficient to support the jury’s verdict that the defendants retaliated against Esler because she exercised her right to twelve weeks of FMLA leave.  We further conclude that the issue of front pay in an FMLA retaliation case should be reserved for the judge, and that the judge did not abuse her discretion or otherwise err in determining that the evidence at trial was insufficient to support an award of front pay.  Accordingly, we reverse in part and affirm in part the entry of judgment for the defendants on the defendants’ motion for judgment n.o.v.  We remand the case to the Superior Court for further proceedings with respect to the defendants’ alternative request for a new trial.

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-11836

COMMONWEALTH  vs.  KRISTEN A. LaBRIE.

Essex.     November 2, 2015. – March 9, 2016.

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

Attempt.  Homicide.  Assault and Battery.  Reckless Endangerment of a Child.  Intent.  Evidence, Intent.  Practice, Criminal, Assistance of counsel.

Indictments found and returned in the Superior Court Department on July 3, 2009.

The cases were tried before Richard E. Welch, III, J., and a motion for a new trial, filed on June 6, 2013, was heard by him.

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

Michelle Menken for the defendant.

Marcia H. Slingerland, Assistant District Attorney (Kate Berrigan MacDougall, Assistant District Attorney, with her) for the Commonwealth.

BOTSFORD, J.  The defendant, Kristin LaBrie, was charged with the attempted murder of her young son and related assault and battery and child endangerment crimes.  The Commonwealth contends that the defendant, with the intent to kill her son, did not give him prescribed chemotherapy and other medications designed to treat the cancer from which he suffered and ultimately died.  At a trial before an Essex County jury, the defendant was convicted on these charges; before us is her appeal from these convictions and also from the denial of her motion for a new trial.  The defendant claims that her conviction of attempted murder must be reversed because the Commonwealth was required, and failed, to prove that the substantive crime of murder was not achieved, and because the judge’s instructions to the jury on this crime were erroneous.  She further claims that the evidence also was insufficient to permit convictions of the two assault and battery charges, and again that the judge’s instructions were legally incorrect.  Finally, the defendant argues that the judge erred in denying her motion for a new trial and in particular in rejecting her claims concerning the ineffective assistance provided by trial counsel.  For the reasons discussed below, we affirm the defendant’s conviction of reckless endangerment of a child under G. L. c. 265, § 13L; reverse the judgments on both assault and battery charges and order judgment for the defendant on those charges; and reverse the order denying the defendant’s motion for a new trial on the charge of attempted murder.

Background.  1.  Factual background.  The jury could have found the following facts.  The defendant had a son, Peter,[1] the victim, who in 2006 was seven years old and presented with significant medical and physical concerns.[2]  In October, 2006, Peter was brought to the Massachusetts General Hospital (hospital) on an emergency basis and diagnosed with lymphoblastic lymphoma, a cancer of the lymph nodes.[3]  At the time of the diagnosis, the defendant was separated from Eric Fraser, her former husband and Peter’s father, and the defendant was Peter’s primary caretaker.[4]

Dr. Alison Friedmann, a pediatric hematologist-oncologist at the hospital, led the treatment team for the cancer from the point of Peter’s first admission and became Peter’s primary physician throughout treatment.  When Peter was first diagnosed, Friedmann explained to the defendant the diagnosis, the survival rate, and an overview of the proposed treatment plan for Peter.  The plan consisted of five phases over two years, combining in-hospital and at-home treatment.  It included a complicated chemotherapy regimen that used many different medications in differing schedules and required heavy parental involvement.  With treatment pursuant to that plan, the long-term survival rate for children with lymphoblastic lymphoma is about eighty-five to ninety per cent.^[5]

In the first phase of the treatment (“induction” phase), in which the goal was to put the cancer into remission, Peter was hospitalized for two weeks and then treated at home for the next two weeks.  During the home treatment portion of this phase, the defendant was responsible for giving Peter an oral medication, dexamethasone, a steroid that is an important part of the treatment.  The defendant was to administer dexamethasone beginning in approximately November of 2006.  Pharmacy records indicate that this prescription was not filled until April, 2007.[6]  It appears that Peter achieved remission of the cancer by the end of this first phase.

In phases two (“consolidation” phase) and three (“inner maintenance” or “delayed intensification” phase) of the treatment, Friedmann prescribed another oral chemotherapy agent, 6-mercaptopurine (6-MP).  The defendant was responsible for giving Peter 6-MP every night beginning in or about early December, 2006, and was to continue for three or four months.  Pharmacy records indicate that this prescription was not filled until June 28, 2007.  Nonetheless, in the winter or early spring of 2007, the defendant told Friedmann she was having a hard time giving Peter the 6-MP, and the doctor changed the prescription to a liquid form.  The third phase required planned hospital stays to receive chemotherapy as an inpatient, along with continued at-home administration of 6-MP.

Throughout the first three phases of Peter’s treatment, a home care nurse from the hospital visited the defendant and Peter on a regular basis.  During the first month of treatment the nurse traveled to the defendant’s home once or twice per week and thereafter visited when blood tests were needed.  During these visits, the home care nurse reviewed the plan of care and answered any questions the defendant had about administering the medications.  During the fall of 2006 into the winter of 2007, the home care nurse asked the defendant if she had given Peter the medications and the defendant reported that Peter was taking his medications.  The defendant also reported to Friedmann that generally “things seemed to be going okay,” and aside from letting Friedmann know she was having trouble giving Peter the 6-MP, she never indicated there were any difficulties giving Peter the medications.

The fourth phase (“reinduction” phase), which started in the spring of 2007, involved intravenous medications in the clinic and oral steroids.  Peter had weekly visits with Friedmann during which the doctor checked his blood, reviewed the medications with the defendant, and discussed how Peter was doing.  During this phase, the entirety of the chemotherapy was administered at the hospital and, according to the pharmacy records, the oral medication prescription was filled.

The final phase of treatment (“maintenance” phase) began at the end of June, 2007, and was intended to continue for sixteen months.  This phase involved three medications, including 6-MP, that were to be given to Peter by the defendant at home and one medication that was to be administered intravenously during a monthly visit to the hospital.  Although the 6-MP prescription was supposed to be refilled every month and administered nightly during this final phase, the monthly prescription was only filled on June 28, 2007; September 5, 2007; and January 30, 2008.  In August, 2007, the defendant told the home care nurse that “the medications were going good,” Peter was tolerating them, and she had no concerns.  Although she never filled the prescription for the liquid form of 6-MP, the defendant further reported to the home care nurse that Peter was taking the liquid form of 6-MP, and “it was going better.”[7]

During a clinic visit in February, 2008, Peter had a bad cough and fever and his platelet count was lower; he was diagnosed with influenza and the respiratory syncytial virus.  Friedmann was worried about a relapse, instructed the defendant to stop his chemotherapy medicine, and prescribed an antiviral medication to treat influenza.  The defendant told the home care nurse that she was not giving Peter the antiviral medication because she did not want to make him sick.  The nurse attempted to schedule an appointment for the end of that week to draw Peter’s blood, but the defendant was unavailable.  Because it struck Friedmann as “odd” that the hospital was unable to obtain the blood test, she telephoned the pharmacy to determine whether Peter’s prescriptions had been filled as prescribed.  The records revealed that the defendant had not filled multiple medications prescribed to Peter throughout the treatment period.[8]  The doctor telephoned the defendant and told her they “really needed to get some lab tests done.”  When the defendant brought Peter to the hospital the next day, the doctor discovered that Peter had suffered a relapse, meaning that the cancer had returned.[9]  Friedmann asked the defendant about the missed prescriptions, but the defendant insisted that the pharmacy must have made a mistake.  After the pharmacy confirmed that no mistake had been made, Friedmann and a social worker at the hospital filed a report of child abuse or neglect with the Department of Children and Families (DCF) pursuant to G. L. c. 119, § 51A.

During a meeting with a DCF social worker after that report had been filed, the defendant claimed that she had administered all of the medications prescribed, and at some point stated to the social worker that she knew withholding Peter’s medicine would be “like pushing him in front of a car.”  At the end of March, 2008, Fraser obtained custody of Peter, and in April the defendant signed a stipulation rescinding her visitation rights with Peter and agreeing to give Fraser full custody of him.  After it was confirmed that Peter had relapsed, Friedmann explained to the defendant and Fraser that the cancer could not be treated with the original treatment because the cancer was now resistant to that treatment; the only viable treatment was a bone marrow transplant, a complicated procedure with a low chance of survival.  Peter’s parents decided against the bone marrow transplant, and it became clear that continued treatment would only control the cancer but could not cure it; thereafter, chemotherapy was suspended.  Peter died on March 30, 2009, of respiratory failure secondary to acute lymphoblastic leukemia.

The Commonwealth’s theory was that the defendant understood that not giving Peter the prescribed medications would create a substantial risk of death, that she made an intentional decision to withhold the medications from Peter because she wanted to kill him, and that she repeatedly lied in order to conceal her ongoing efforts to kill her son.  It was not possible to determine — according to Friedmann — whether the defendant’s noncompliance with the medication protocol caused Peter’s cancer to return (and therefore his death), but the defendant’s noncompliance created a significant risk that the cancer would do so.

The theory of the defense was that the defendant’s failure to administer Peter’s medications[10] was done without any intent to kill her son.  Rather, the short-term effect of the chemotherapy treatment was simply too burdensome for a single caretaker such as the defendant, and she was so fatigued by the end of the treatment that her judgment waned.  The defendant testified to this effect, as did Dr. Frederick Krell, a forensic psychologist who testified as an expert witness for the defense.  Krell opined that the defendant was overwhelmed with having to cope with an impaired child who had a life-threatening illness, and she was unable to keep in mind the long-range goal of the treatment.  In response, the Commonwealth called Dr. Martin Kelly, a psychiatrist, who testified that the defendant did “not have any mental disorder or psychological condition that would affect her capacity to premeditate, to weigh the pros and cons, to intend to do the acts that she did.”

2.  Procedural background.  In July, 2009, the defendant was indicted on charges of attempted murder, G. L. c. 265, § 16; wantonly or recklessly permitting substantial bodily injury to a child under the age of fourteen, G. L. c. 265, § 13J (b); wantonly or recklessly permitting serious bodily injury to a disabled person, G. L. c. 265, § 13K (e); and wantonly or recklessly endangering a child, G. L. c. 265, § 13L.  In April, 2011, at the end of trial, a jury found the defendant guilty of all four charges.[11]  The defendant filed a timely notice of appeal and, represented by her present appellate counsel, subsequently filed a motion for a new trial that included claims of ineffective assistance of trial counsel.  The trial judge held an evidentiary hearing on the ineffective assistance claims at which three witnesses testified.  Following the hearing, the judgedenied the defendant’s motion for a new trial.  On November 27, 2013, the defendant filed a notice of appeal from this denial, and the appeals were consolidated.  We transferred the case to this court on our own motion.

Discussion.  1.  Attempted murder:  nonachievement.  The defendant challenges the sufficiency of the evidence for her conviction of attempted murder.  She argues that the crime of attempted murder, like the crime of general attempt, has three elements:  (1) a specific intent to kill, (2) an overt act, and (3) nonaccomplishment or nonachievement of the completed crime.  In her view, the Commonwealth was required to prove all three of these elements beyond a reasonable doubt and argues that because the Commonwealth, by its own admission, was unable to prove nonachievement, her motion for a required finding of not guilty should have been allowed.[12]  Alternatively, she contends that even if the trial evidence were sufficient to preclude a required finding on the element of nonachievement, the judge’s failure to include any instruction on this element meant that the jury did not consider whether the Commonwealth presented sufficient evidence, creating a substantial risk of a miscarriage of justice.  We disagree.  For the reasons next discussed, we conclude that specific intent and commission of an overt act are the required elements of the crime of attempt or, here, attempted murder, but that nonachievement of the murder, while clearly relevant, is not itself an element that the Commonwealth must prove beyond a reasonable doubt.

The crime of attempted murder is defined in G. L. c. 265, § 16,[13] and is distinct from the crime of general attempt, G. L. c. 274, § 6.[14]  Notwithstanding the differences in the language, our cases have tended to treat the elements of attempt as the same under both statutes.  See Commonwealth v. Peaslee, 177 Mass. 267 (1901) (attempt to burn building); Commonwealth v. Kennedy, 170 Mass. 18 (1897) (attempted murder).  It is also the case that attempted murder may be prosecuted as an attempt under c. 274, § 6, rather than c. 265, § 16.  See, e.g., Commonwealth v. Dixon, 34 Mass. App. Ct. 653, 655 (1993).

This case appears to be the first in which this court has considered directly whether nonachievement is an element of attempted murder, or more generally, attempt.  Unquestionably, the defendant’s argument that nonachievement is an element of attempt crimes is not without support:  a number of cases arising under the general attempt statute have included nonachievement as an element of attempt.  See, e.g., Commonwealth v. Marzilli, 457 Mass. 64, 66 (2010) (attempted indecent assault and battery); Commonwealth v. Bell, 455 Mass. 408, 412 (2009) (attempted rape).  And the Appeals Court has recognized a form of nonachievement — “failure or interruption” — as an element of attempted murder under G. L. c. 265, § 16.  See, e.g., Commonwealth v. Murray, 51 Mass. App. Ct. 57, 61 (2001); Dixon, 34 Mass. App. Ct. at 655.  In contrast to this case, however, in all of the cited cases the question whether the substantive crime was completed was not at issue — there was no disagreement that it had not been achieved — and the element of nonachievement was not substantively discussed.  Moreover, a number of other cases decided by this court and the Appeals Court suggest that the elements of attempt are limited to the requisite intent and an overt act.  See, e.g., Commonwealth v. Rivera, 460 Mass. 139, 142 (2011); Commonwealth v. Ortiz, 408 Mass. 463, 470 (1990); Commonwealth v. Gosselin, 365 Mass. 116, 120-121 (1974); Commonwealth v. Cline, 213 Mass. 225, 225 (1913); Commonwealth v. Sullivan, 84 Mass. App. Ct. 26, 28-30 (2013), S.C., 469 Mass. 621 (2014).

This court’s jurisprudence on attempt dates back to Kennedy, 170 Mass. 18, a decision authored by then Justice Holmes, that considered a case of attempted murder brought under an earlier version of G. L. c. 265, § 16; and Peaslee, 177 Mass. 267, authored by then Chief Justice Holmes, concerning an attempt to burn a building under an earlier version of G. L. c. 274, § 6.  In Kennedy, supra, the defendant was charged with attempted murder by placing deadly poison on the victim’s cup with the intent that the victim drink from the cup, ingest the poison, and die.  Id. at 20.  Although it is clear from the opinion that the victim did not die as a result of the defendant’s acts, see id. at 23, the fact is of little significance in the court’s discussion of the nature of the crime.  Rather, the court focused principally on the nature of the overt act or acts taken by the defendant toward accomplishment of the intended murder.[15]  With respect to the overt acts, Justice Holmes emphasized that not all acts leading toward the substantive crime are subject to punishment as a criminal attempt, but only those that come “near enough to the result,” i.e., accomplishment of the substantive crime:

“[W]e assume that an act may be done which is expected and intended to accomplish a crime, which is not near enough to the result to constitute an attempt to commit it, as in the classic instance of shooting at a post supposed to be a man.  As the aim of the law is not to punish sins, but is to prevent certain external results, the act done must come pretty near to accomplishing that result before the law will notice it.”

Id. at 20.  See id. at 22 (“Every question of proximity must be determined by its own circumstances . . .”).  See also Peaslee, 177 Mass. at 271 (“The question on the evidence, . . . precisely stated, is whether the defendant’s acts come near enough to the accomplishment of the substantive offence to be punishable”).[16]

Kennedy and Peaslee explain and illustrate that the essence of the crime of attempt is to punish the defendant’s substantial acts toward the accomplishment of an intended substantive offense.  See Commonwealth v. Burns, 8 Mass. App. Ct. 194, 196 (1979).  See also R.M. Perkins, Criminal Law, at 552 (2d ed. 1969).  The substantive crime is clearly both relevant and important, because what the crime of attempt aims to punish are acts that bear a proximate relation to that crime; put another way, the substantive crime helps to define and delimit what acts may have the requisite proximity.  But the acts stand on their own, and whether a particular act qualifies as an overt act that, combined with proof of the requisite intent, constitutes a criminal attempt does not depend on whether the substantive crime has or has not been accomplished.[17]

In contending that nonaccomplishment is an element of attempt that the Commonwealth must prove, the defendant relies principally on cases such as Marzilli, 457 Mass. at 66, and Bell, 455 Mass. at 412.[18]  In these decisions, as previously mentioned, the court listed nonachievement as an element of attempt, but did not otherwise discuss it.  Both these cases involved the general attempt statute, G. L. c. 274, § 6, which contains language that focuses specifically on failing to accomplish, or being prevented from accomplishing, the substantive crime.[19]  On reflection, we consider this language to represent not a separate element of the crime of attempt but “a further refinement of the definition of the overt act.”  Commonwealth v. Aldrich (No. 1), 88 Mass. App. Ct. 113, 118 (2015).  That is, the language helps to clarify and reinforce the point that attempt is a crime separate and distinct from the substantive offense to which it is connected, one that focuses on, and punishes, acts that threaten the accomplishment of the substantive offense, not the substantive offense itself.  Accordingly, to the extent that our decisions such as Marzilli and Bell indicate that proof of nonachievement of the substantive crime is an element of attempt, we no longer follow them.[20]  The elements of attempt, whether general attempt or attempted murder, are (1) the specific intent to commit the substantive crime at issue, and (2) an overt act toward completion of the substantive crime.[21]

Here, the Commonwealth is not able to prove beyond a reasonable doubt either that the defendant murdered Peter or that the defendant failed to murder him.  We agree, as does the Commonwealth, that in these circumstances, the defendant cannot be convicted of murder.  But “requiring the government to prove failure as an element of attempt would lead to the anomalous result that, if there were a reasonable doubt concerning whether or not a crime had been completed, a jury could find the defendant guilty neither of a completed offense nor of an attempt.”  United States v. York, 578 F.2d 1036, 1039 (5th Cir.), 439 U.S. 1005 (1978).  See Gosselin, 365 Mass. at 120 (stating, in dictum, that requiring proof beyond reasonable doubt that attempt failed would mean that “if there were a reasonable doubt whether the attempt succeeded, the defendant could not be convicted either of the completed crime or of the attempt.  We have rejected such requirements”).  See also United States v. Rivera-Relle, 333 F.3d 914, 919-921 (9th Cir.), cert. denied, 540 U.S. 977 (2003) (failure to complete entry into United States was not element of offense of attempting to reenter United States without consent of Attorney General; discussing Federal and State decisions on whether nonachievement must be proved as element of attempt); Lightfoot v. State, 278 Md. 231, 238 (1976) (where no joint venture theory existed, robbery was complete, but uncertainty existed about whether defendant himself had completed robbery, defendant charged with attempted robbery because “failure to consummate the crime is not an indispensable element of criminal attempt”).

Our conclusion that nonachievement of murder is not an element of attempted murder essentially disposes of the defendant’s challenge to the judge’s instructions on this crime.  The judge instructed the jury that the Commonwealth “[does not] have to prove that the defendant caused the death of [Peter].  It’s instead attempted murder, that is she had the intent with malice and then she makes some overt act toward the murder . . . .  Attempted murder only exists if there’s not an actual murder, of course.”  The judge further instructed the jury on the element of an overt act, stating that they must find “some actual outward physical action as opposed to mere talk or plans. . . .  [A]n act . . . that is reasonably expected to bring about the crime [of murder].”  We conclude that the judge’s instructions correctly explained the elements of attempted murder.

2.  Assault and battery charges.  The defendant challenges her convictions of assault and battery upon a child, in violation of G. L. c. 265, § 13J (b), fourth par. (§ 13J [b], fourth par.); and of assault and battery upon a person with a disability, in violation of G. L. c. 265, § 13K (e) (§ 13K [e]).  Section 13J (b), fourth par., punishes a caretaker of a child who “wantonly or recklessly permits substantial bodily injury” to the child,[22] and § 13K (e) punishes a caretaker of a person with a disability who “wantonly or recklessly permits serious bodily injury” to the person with a disability.[23]^,[24]  The defendant contends that although the Commonwealth may have presented sufficient evidence to prove that the defendant caused a substantial risk of death to Peter by not giving him the prescribed chemotherapy and related medications, it did not present evidence sufficient to prove “substantial bodily injury.”  She further argues that the judge’s instructions to the jury incorrectly defined the meaning of substantial bodily injury.[25]  We agree with the defendant on both points.

The term “[b]odily injury” is defined in G. L. c. 265, § 13J (a), as a

“substantial impairment of the physical condition including any burn, fracture of any bone, subdural hematoma, injury to any internal organ, any injury which occurs as the result of repeated harm to any bodily function or organ including human skin or any physical condition which substantially imperils a child’s health or welfare.”

The term “[s]ubstantial bodily injury” is defined in the same section to mean “bodily injury which creates a permanent disfigurement, protracted loss or impairment of a function of a body member, limb or organ, or substantial risk of death.”  We previously have stated, in discussing § 13J (b), fourth par., that

“[the term ‘bodily injury’] defines the bodily injuries the Legislature intended to be punishable under the statute, i.e., burns, fractures, injuries to internal organs, and perilous physical conditions, while [‘substantial bodily injury’] lays the foundation for greater sanctions based on the gravity and consequences of the bodily injury sustained.  Read together, . . . a substantial bodily injury includes any substantial impairment of the physical condition that causes a protracted impairment of the function of an internal organ or a substantial risk of death.  As it appears in the context of the statute, death is not an injury, but one risk of injury.”

Commonwealth v. Chapman, 433 Mass. 481, 484 (2001).  See Commonwealth v. Roderiques, 462 Mass. 415, 423 (2012) (“substantial bodily injury” under § 13J [b], fourth par., requires risk of injury to “come to fruition in the form of an actual injury”).

The evidence at trial permitted the jury to find, based on Friedmann’s testimony, that the defendant’s failure or refusal to give Peter the medications that were part of his treatment plan caused an increased risk of death for Peter.  However, if death itself does not qualify as a “bodily injury” or “serious bodily injury” under the statute, see Chapman, 433 Mass. at 484, neither does an increased risk of death.  The Commonwealth asserts, however, that the defendant’s withholding of medications led to Peter’s cancer returning in a more virulent and treatment-resistant form, and that this more potent illness was itself a “bodily injury” that, in the words of § 13J (b), fourth par., the defendant wantonly or recklessly permitted to occur.[26]

The Commonwealth’s argument fails.  Although the presence of a stronger, more treatment-resistant form of cancermay qualify as a “bodily injury” under the statutory definition, see G. L. c. 265, § 13J (a) (“bodily injury” defined to include “any physical condition which substantially imperils a child’s health or welfare”), an opinion that a particular result is “likely” does not appear to be sufficient to permit a finding that the defendant’s actions actually caused the more treatment-resistant form of cancer to occur.[27]  Given that, according to the evidence, even with full treatment ten to fifteen per cent of children still succumb to the cancer, just as the Commonwealth admittedly could not prove beyond a reasonable doubt that the defendant’s actions caused Peter’s death from cancer, so it appears that the Commonwealth would not be able to prove that the defendant’s actions caused him to relapse and become ill with a more treatment-resistant form of cancer.

We thus conclude that the trial evidence was insufficient to support the defendant’s assault and battery convictions under §§ 13J (b), fourth par., and 13K (e), and those convictions must be vacated.[28]  The defendant also was convicted of reckless endangerment of a child in violation of G. L. c. 265, § 13L.[29]  She challenged that conviction as duplicative in light of her conviction under § 13J (b), fourth par., see Roderiques, 462 Mass. at 424, but agrees that if the conviction under § 13J (b), fourth par., is vacated or reversed, the conviction under § 13L may stand.

3.  Motion for new trial:  ineffective assistance of counsel.  Finally, the defendant claims that the judge abused his discretion by denying the defendant’s motion for a new trial on the ground of ineffective assistance of counsel.  She argues that counsel was ineffective in three ways:  (1) failing to consult an independent oncologist;  (2) agreeing to order his expert witness, Krell, to turn over his records to the Commonwealth’s expert, Kelly;[30] and (3) failing to present evidence concerning the defendant’s history with DCF.[31]  We conclude that counsel’s failure to consult an independent oncologist fell measurably below the standard of “an ordinary fallible lawyer.”  Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).  In the circumstances of this case, this failure deprived the defendant of “an otherwise available, substantial ground of defense” to the charge of attempted murder.  Id.

a.  Background.  Represented by new counsel on appeal — her present counsel — the defendant filed a motion for a new trial on June 6, 2013.  The trial judge held an evidentiary hearing on the motion, at which three witnesses testified on behalf of the defendant:  Kevin James, the defendant’s trial counsel; Dr. Paul Pitel, a board-certified pediatric hematologist-oncologist; and Krell.  In addition, the affidavits of trial counsel and Pitel that had been filed in support of the motion for a new trial were introduced in evidence as motion exhibits.

At the motion hearing, James testified that he sought funds to retain an independent oncologist in order to rebut the testimony of Friedmann, a key witness for the Commonwealth’s case, but later decided not to consult an oncologist on the grounds that (1) an effort to establish that the failure to medicate was harmless would be unsuccessful, especially with the Commonwealth’s opportunity to cross-examine the expert; and (2) seeking to belittle Friedmann’s testimony would reflect poorly on the defendant.  At the motion hearing, Pitel, chair of the department of pediatrics at Nemours Children’s Clinic in Jacksonville, Florida, testified that he has treated children with lymphoblastic lymphoma since 1978.

Consistent with his affidavit,[32] Pitel testified at the motion hearing that the professional literature makes clear that the adherence rates[33] for many long-term drug therapies are no more than forty or fifty per cent.  Noncompliance with cancer treatment protocols is lowest when the patient is an adolescent, but a major concern with pediatric populations generally; adherence is a considerable issue with drugs that are used to treat an asymptomatic illness or to prevent illness.  Based on his experience, Pitel offered several reasons parents do not adhere to the treatment protocol:  the immediate side effects of the medications are much more obvious than any benefits; noncompliance often has no visible detrimental effect, and thus parents do not fully appreciate the consequences; when the child appears healthy parents often stop complying, especially when the child resists the medications; and parents may not believe the treatment will work and do what they think will work.  Pitel opined that, in this case, the defendant’s personal circumstances signaled a higher risk of noncompliance, and the defendant likely did not understand that her lapses in compliance could be lethal, especially given that, according to his medical records, Peter achieved remission early on and his doctor ordered repeated holds on chemotherapy and told the defendant that Peter was doing well throughout the treatment.

In denying the defendant’s motion for a new trial, the judge concluded that defense counsel “chose the best possible defense and presented it well at trial.”  The judge dismissed the importance of Pitel’s testimony, reasoning that Pitel agreed with Friedmann’s treatment plan and Friedman’s stated opinion that compliance is critically important.  The judge noted that Pitel would be unable to opine about the defendant’s own intent or state of mind.  Although recognizing that the literature exploring reasons for noncompliance with similar chemotherapy protocols could have been instructive to trial counsel, the judge concluded that such “general education would not have accomplished ‘something material to the defense.’”

b.  Standard of review.  When evaluating an ineffective assistance of counsel claim, we consider “whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.”  Saferian, 366 Mass. at 96.  “In cases where tactical or strategic decisions of the defendant’s counsel are at issue, we conduct our review with some deference to avoid characterizing as unreasonable a defense that was merely unsuccessful” and ask whether the decision was manifestly unreasonable when made (citation omitted).  Commonwealth v. Kolenovic, 471 Mass. 664, 673-674 (2015).  Strategic choices made before a complete investigation are reasonable “[only] to the extent that reasonable professional judgments support the limitation on investigation” (citation omitted).  Commonwealth v. Lang, 473 Mass. 1, 14 (2015).  With respect to our review of the denial of a motion for a new trial, we recognize that the decision to allow or deny such a motion rests within the sound discretion of the motion judge, and we give deference to the factual findings of that judge, particularly when he or she was also the trial judge.  See Commonwealth v. Pillai, 445 Mass. 175, 185 (2005).

c.  Discussion.  Trial counsel’s decision not to consult with an independent oncologist appears to have been a strategic decision.  However, given the salient and essentially undisputed facts about Peter’s life-threatening cancer, his excellent prognosis with continued treatment, and the defendant’s failure to give the prescribed medications over a long period of time, it was clear that the defendant’s intent would be the key issue at trial.  The Commonwealth’s theory was that, unlike other parents, the defendant failed to administer life-saving medications to her son, and she lied about her noncompliance; the only explanation for this behavior was that she intended to kill her son.  In the circumstances, it was patently unreasonable for the defendant’s counsel not to consult with a qualified pediatric oncologist to explore the disease, its treatment, and in particular whether experience dealing with other caretaking parents might help to identify explanations other than an intent to kill the child for a parent’s decision not to give medications.  See Commonwealth v. Haggerty, 400 Mass. 437, 442-443 (1987).

The information provided by Pitel in his affidavit and his testimony at the motion hearing concerning the noncompliant behavior of parents with children suffering from cancer show that parental noncompliance is not uncommon.  Many parents do not adhere to the treatment protocol for a number of reasons other than an intent to kill the patient, including a patient’s healthy appearance during remission, a parent not wanting to make the child sicker, and the absence of apparent adverse effects resulting from noncompliance.  Such evidence would have been significant in the defendant’s case, offering an explanation for the defendant’s conduct that placed her squarely within a group of parents of children similarly situated with Peter, and thereby offering an explanation for her conduct that was understandable and within some available norm of parental behavior — and not, as the Commonwealth argued, the actions of a woman who “seethed” with anger at her former husband and intending to kill her son as an act of retaliation against the father.  As such, this evidence had the potential of raising a reasonable doubt about the existence of the defendant’s criminal intent.[34]^,[35]  See Commonwealth v. Martin, 427 Mass. 816, 822 (1998) (affirming allowance of motion for new trial on grounds of ineffective assistance where defendant’s trial counsel failed to call expert to challenge Commonwealth’s vulnerable cause-of-death theory; new evidence on cause of death “could have raised a reasonable doubt in the minds of the jury”).  See also Commonwealth v. Roberio, 428 Mass. 278, 281-282 (1998), S.C., 440 Mass. 245 (2003) (defendant’s trial counsel’s failure to investigate defendant’s lack of criminal responsibility and call expert witness constituted ineffective assistance of counsel; defendant’s motion for new trial should have been allowed).  And quite apart from testifying at trial, an expert such as Pitel could have educated and informed the defendant’s counsel about the disease, the treatments, and what the medical literature teaches concerning treatment compliance by parents — information that would have greatly aided defense counsel in his cross-examination of Friedmann and other medical personnel from the hospital.

In rejecting the potential value and significance of Pitel’s testimony, the judge focused particularly on the fact that Pitel agreed with Friedmann’s treatment protocol,[36] that Pitel could not testify to the defendant’s own state of mind, and that the defendant repeatedly had lied.  These reasons are not persuasive.  With respect to the lying, Pitel’s motion testimony suggests he would have been able to offer noncriminal reasons why a person in the defendant’s circumstances might lie about withholding medications.  And although Pitel certainly could not testify about the defendant’s own state of mind, he could explain, based on his own professional knowledge and experience, the common patterns of behavior of parents who fail to comply in cancer treatment and whether the defendant’s reported behavior was consistent with those patterns.  See, e.g., Commonwealth v. Dockham, 405 Mass. 618, 628 (1989) (expert testimony concerning general patterns of behavior of sexually abused children).  See also Commonwealth v. Pike, 431 Mass. 212, 221-222 (2000) (expert testimony on battered woman syndrome).

In sum, we conclude that trial counsel’s decision to forgo any consultation with an oncologist was manifestly unreasonable, and likely deprived the defendant of a substantial ground of defense on the central disputed issue in the case, namely, the defendant’s intent.  To deny her motion for a new trial would be unjust.  The defendant is entitled to a new trial on the charge of attempted murder.[37]

Conclusion.  The judgment of conviction on the indictment charging a violation of G. L. c. 265, § 13L, is affirmed.  The judgments of conviction on the indictments charging violations of G. L. c. 265, § 13J (b), and G. L. c. 265, § 13K (e), are vacated, and judgment is to enter for the defendant on each indictment.  The order denying the defendant’s motion for a new trial on the indictment charging a violation of G. L. c. 265, § 16, is vacated.  The case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

Full-text Opinions

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

14-P-1637                                       Appeals Court

NEW ENGLAND PRECISION GRINDING, INC.  vs.  SIMPLY SURGICAL, LLC[1] & another.[2]

No. 14-P-1637.

Worcester.     November 2, 2015. – March 9, 2016.

Present:  Milkey, Carhart, & Massing, JJ.

Uniform Commercial Code, Acceptance of goods, Revocation of acceptance.  Indemnity.  Judgment, Interest.  Practice, Civil, Instructions to jury, Judgment notwithstanding verdict, Verdict.

Civil action commenced in the Superior Court Department on August 7, 2006.

The case was tried before Richard T. Tucker, J., and motions for the entry of separate and final judgment and to reach the proceeds of the judgment were heard by him.

Barry A. Bachrach for the plaintiff.

Matthew R. Johnson for Simply Surgical, LLC.

Dale C. Kerester for Iscon Surgicals, Ltd.

CARHART, J.  This Superior Court contract action stems from the sale by defendant Simply Surgical, LLC (Simply Surgical) to plaintiff New England Precision Grinding, Inc. (NEPG) of medical device parts manufactured by defendant Iscon Surgicals, Ltd. (Iscon).  All three parties appeal from an amended judgment entered on January 8, 2013, in favor of Simply Surgical; Iscon also appeals from an order entered on January 18, 2013, denying its motion for entry of a separate and final judgment and to reach the proceeds of the judgment due to Simply Surgical from NEPG.[3]

On appeal, NEPG argues that the judge wrongly declined to instruct the jury that, under the Uniform Commercial Code   (U.C.C.), codified in Massachusetts at G. L. c. 106, NEPG had the right to revoke its acceptance of parts once they were rejected by its customer Kyphon, Inc. (Kyphon).  It also complains that the jury’s verdict was against the weight of the evidence and its award excessive.  Simply Surgical argues that the judge erroneously prevented it from presenting its claim for common-law indemnification against Iscon.  Iscon contends that the judge should have corrected the amount of the damages awarded by the jury to include the total unpaid balance sought by Iscon on its account stated.

We affirm the amended judgment, and the order entered January 18, 2013, denying Iscon’s motion.

Background.  We summarize the trial evidence.  NEPG is a Massachusetts-based manufacturer of precision medical components.  In or around 2004, NEPG contracted with Kyphon and agreed to supply Kyphon with medical device parts referred to as stylets and nozzles.[4]  In 2005, Kyphon ordered six lots from NEPG, with each lot containing 25,000 pieces of each component.  Because NEPG could not manufacture the parts at the price point that Kyphon requested, it contracted with Robert Longo, the owner of Simply Surgical, to obtain the parts from Indian manufacturer Iscon.  Iscon shipped the initial order directly to NEPG, but shipped subsequent orders to Longo at Simply Surgical.  The parts were shipped by lot, and Iscon would certify that the parts conformed to the plans and specifications provided by NEPG.

Upon receiving the parts from Iscon or Simply Surgical, NEPG would conduct its own inspection using a process that was approved by Kyphon and which accorded with industry standards for medical devices.  If NEPG approved of the parts, it would certify that they conformed to Kyphon’s plans and specifications and would ship them to Kyphon.  Kyphon would then do its own inspection before accepting or rejecting NEPG’s shipment.  The purchase orders from NEPG to Simply Surgical neither mentioned Kyphon nor required that the parts ultimately be accepted by Kyphon;[5] rather, the terms were listed as “Net 30 days.”  The “[d]escription” of the products ordered included “[c]ertifications [r]equired,” and the purchase orders contained a directive that the parts are not to be shipped “UNTIL INSPECTION DATA HAS BEEN REVIEW [sic] AND APPROVED BY NEPG.”

Early on, NEPG brought to Longo’s attention conformity issues that Simply Surgical and Iscon worked to correct.  At one point, in order to keep the project moving, Simply Surgical gave NEPG approximately $ 20,000 in credits.  Later, on two occasions after Kyphon rejected lots 4 and 5, which NEPG had certified were conforming, Longo agreed to take the parts back and rework them.[6]  When Longo refused to take them back a third time, NEPG used in-house labor to polish and improve the appearance of the parts to Kyphon’s satisfaction.

NEPG promptly paid Simply Surgical for lots shipped in June and July, 2005.  However, Simply Surgical received no payments from NEPG from August through November, 2005.  From that time through July, 2006, payments from NEPG to Simply Surgical lagged.  Indeed, there was one period of several months when NEPG failed to pay Simply Surgical over $ 100,000, despite having received from Kyphon, during that time, payments totaling $ 188,000.[7]  NEPG’s chief financial officer testified that the lag in payment resulted from a “policy” instituted at NEPG as a result of the “quality issues” with previous shipments, whereby NEPG would not “immediately pay” Simply Surgical for parts until NEPG “received notice from Kyphon that the parts were inspected and deemed good.”  As of January 26, 2006, NEPG owed Simply Surgical $ 163,331.08.  By the spring of 2006, Longo was refusing to ship the remainder of lot 3 until NEPG addressed its outstanding balance with Simply Surgical.  He also demanded upfront payment for lot 6, which was waiting to be shipped from India.  NEPG refused, and, in early August, 2006, Kyphon canceled its contract with NEPG.

NEPG then sued Simply Surgical for breach of contract, breach of the implied warranties of merchantability and of fitness for a particular purpose, and violation of G. L. c. 93A, § 11, alleging that Simply Surgical had supplied defective parts that caused Kyphon to cancel its contract with NEPG.  Simply Surgical counterclaimed for breach of contract, breach of the implied covenant of good faith and fair dealing, quantum meruit, and violation of c. 93A, based upon NEPG’s failure to pay.  After NEPG’s motion to join Iscon was allowed, NEPG amended its complaint to request a judgment declaring that it was not liable to Iscon, and Iscon and Simply Surgical brought claims against each other.  Kyphon was not sued.

A jury trial took place over the course of two weeks, with the judge reserving for himself the cross claims of NEPG and Simply Surgical under c. 93A.  The judge denied Iscon’s motion for a directed verdict at the close of Simply Surgical’s case insofar as it was based upon Simply Surgical’s alleged failure to show an agency relationship; however, he allowed the motion with respect to Simply Surgical’s claim for common-law indemnification.  He denied NEPG’s request for a jury instruction that NEPG had the right under the U.C.C. to revoke its prior acceptance of parts because NEPG did not give “the proper notice to anyone that [it was] revoking [its] previously-made acceptance.”  The judge also denied Simply Surgical’s request that he instruct the jury that if they found that Simply Surgical was an agent of Iscon, then Iscon had a common-law duty to indemnify Simply Surgical for its litigation costs.

The jury found that NEPG committed a breach of its contracts and the implied covenant of good faith and fair dealings with Simply Surgical and was liable to Simply Surgical in quantum meruit, and awarded damages in the amount of $ 125,997.84.  The jury further found that Simply Surgical committed a breach of its contract with Iscon and was liable to Iscon “upon an unpaid balance of account,” and awarded damages in the amount of $ 84,150.  After a hearing and “careful review of the memoranda of the[] parties,” the judge determined that neither Simply Surgical nor NEPG had engaged in an unfair or deceptive act or practice within the meaning of c. 93A.  Judgment entered against NEPG and in favor of Simply Surgical awarding damages in “the sum of $ 125,997.84 plus interest thereon from 03/21/07 through 11/28/2012 in the amount of $ 86,121.14 and . . .  costs of action as provided by law,” and, as to the cross claims, against Simply Surgical and in favor of Iscon awarding damages in “the sum of $ 84,150.00 with interest thereon from 07/15/10 through 11/28/12 in the sum of $ 35,914.88 and . . . costs of action as provided by law.”  The judgment also dismissed NEPG’s and Simply Surgical’s respective c. 93A claims.

After trial, the judge denied NEPG’s motion for judgment notwithstanding the verdict and motion for a new trial and for a remittitur on Simply Surgical’s counterclaim.  He denied Iscon’s motion to correct the amount of the jury award and the calculation of prejudgment interest.  The judge allowed so much of Simply Surgical’s motion to amend the judgment so as to correct a miscalculation of prejudgment interest,[8] but he denied the remainder of the motion, which sought application of a different accrual date and interest rate.  As a result, an amended judgment entered, and the original judgment’s interest award to Iscon was changed to “7/15/10 through 11/28/12 in the sum of $ 23,986.42.”  The judge denied Iscon’s motion for entry of separate and final judgment (against Simply Surgical) and to reach and apply the proceeds of the judgment due to Simply Surgical from NEPG.

Discussion.  1.  Claims by NEPG.  NEPG claims error in the judge’s refusal to instruct the jury that it had the right under the U.C.C. to revoke its acceptance of parts once they were rejected by Kyphon.  There was no error.

The evidence established that the goods provided by Simply Surgical were “conforming” and that NEPG “accepted” them within the meaning of the U.C.C.  See G. L. c. 106, §§ 2-106(2) and 2-606(1).  Specifically, it was undisputed that NEPG ordered parts from Simply Surgical that it knew Iscon would manufacture according to NEPG’s specifications, that Iscon manufactured the parts and certified that they conformed to those specifications, that NEPG did its own inspection before accepting parts, and that NEPG then sent parts to Kyphon with a certification that they conformed to Kyphon’s specifications.  As such, NEPG had no right of revocation.  See G. L. c. 106, § 2-607(2), inserted by St. 1957, c. 765, § 1 (“Acceptance of goods by the buyer precludes rejection of the goods accepted”); G. L. c. 106, § 2-608(1), inserted by St. 1957, c. 765, § 1 (“The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him” [emphasis supplied]).

Even if NEPG did have the right to revoke, there was no evidence that NEPG expressed or communicated to Simply Surgical an intent to do so.  See G. L. c. 106, § 2-608(2) (“Revocation of acceptance [under the U.C.C.] . . . is not effective until the buyer notifies the seller of it”).  NEPG never provided Simply Surgical with “notice” as that term is defined in the U.C.C., see G. L. c. 106, § 1-202, and while any delay in providing notice could have been justified by NEPG’s constant communication with Longo and Longo’s attempts to address NEPG’s complaints, see Fortin v. Ox-Bow Marina, Inc., 408 Mass. 310, 318 (1990), NEPG ultimately bore the burden of “proving the date upon which it revoked its acceptance.”  Jeffco Fibres, Inc. v. Dario Diesel Serv., Inc., 13 Mass. App. Ct. 1029, 1030 (1982).  It offered no evidence on this point.  Instead, the evidence was clear that “neither party treated nonconforming deliveries as substantially impairing the value of the whole contract so as to constitute a breach of the whole.”  Bevel-Fold, Inc. v. Bose, Corp., 9 Mass. App. Ct. 576, 581 (1980).  NEPG continued to demand parts from Simply Surgical after expressing its dissatisfaction with previous shipments of parts, and NEPG continued to ship Simply Surgical’s parts to Kyphon with certifications that they conformed to Kyphon’s specifications.  NEPG provides no authority for its argument that it could accept goods from Simply Surgical, inspect them, certify that they were conforming, and then revoke acceptance when the parts were rejected by Kyphon.  We see no error in the judge’s conclusion that there had been no effective revocation of acceptance under the U.C.C., such that NEPG was entitled to the requested instructions.  See Jeffco Fibres, Inc., supra (“[A]n effective revocation of acceptance may be accomplished by oral notice . . . or by conduct which unequivocally manifests a desire to revoke the sale,” taking into account “the course of dealing between the parties after the sale and prior to the rejection”).[9]

There having been no effective revocation by NEPG, NEPG was obligated under the U.C.C. to pay Simply Surgical.  See G. L. c. 106, §§ 2-301, 2-310(a), and 2-607(1).  Under the terms of its contracts, NEPG was required to do so within thirty days.  See Miller Brewing Co. v. Alcoholic Bevs. Control Commn., 56 Mass. App. Ct. 801, 803 (2002) (credit terms of “net eleven days” meant eleven days within which to pay the seller in full).  Although NEPG “really wanted to tie [its] payments [to Simply Surgical] to the acceptance date by Kyphon,” the judge correctly observed that “the approval and formal acceptance of the goods by NEPG is the determinative factor under the terms of the NEPG/Simply Surgical contracts, not the acceptance by Kyphon.”  The parties “easily could have included language expressly” requiring ultimate approval by Kyphon had they so intended, Merrimack College v. KPMG LLP, 88 Mass. App. Ct. 803, 806 (2016); they did not, and “the contract [must] be enforced according to its terms.”  Mejia v. American Cas. Co., 55 Mass. App. Ct. 461, 465 (2002).  Contrast Bevel-Fold, Inc., supra at 578 (“In the agreement, [the buyer] reserved the right to reject cabinets defective in material or workmanship ‘at anytime’”).

Viewing NEPG’s testimony in the light most favorable to Simply Surgical, see Solimene v. B. Grauel & Co., 399 Mass. 790, 792 (1987), NEPG inspected and accepted parts from Simply Surgical before sending them to Kyphon with a certificate of conformity, but “determined . . . that [it] would not immediately pay” Simply Surgical until it “received notice from Kyphon that the parts were inspected and deemed good.”  The terms of NEPG’s contracts with Simply Surgical were “Net 30 days,” yet NEPG failed to make any payments for at least four months.  Thus, the judge properly denied NEPG’s posttrial motion for judgment notwithstanding the verdict and motion for a new trial and for a remittitur.  See McCarthy v. Waltham, 76 Mass. App. Ct. 554, 560 (2010), quoting from O’Brien v. Pearson, 449 Mass. 377, 383 (2007) (“Review of these motions requires us to . . . evaluate whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the nonmovant”).[10]

The judge did not abuse his discretion in denying NEPG’s motion to reduce the jury verdict, see Solimene v. B. Grauel & Co., supra at 803 (“A challenge to the damages awarded as against the weight of the evidence generally is a matter within the judge’s discretion”), because “the jury could have reached, honestly and fairly, the award that they did based on the” testimony and the documentary evidence at trial.  Ibid.

2.  Claims by Simply Surgical.  The judge correctly denied Simply Surgical’s request to submit its common-law indemnification claim against Iscon to the jury, because such “indemnification [is] available . . . only to a defendant whose liability was vicarious or formal.”  Economy Engr. Co. v. Commonwealth, 413 Mass. 791, 794 (1992).  While NEPG did allege that Simply Surgical provided it with defective parts that Iscon undisputedly manufactured, NEPG did not bring defective manufacturing claims against Simply Surgical or Iscon.  Instead, NEPG alleged that Simply Surgical was in breach of contract “[b]y its conduct,” including a “refus[al] to address the defective product” and wrongfully withholding shipments.  Because Simply Surgical’s allegedly tortious conduct “was independent of” any allegedly defective manufacturing of the products by Iscon, the judge correctly concluded that it “had no common law right of indemnity against [Iscon].”  Id. at 793-794.

Simply Surgical also argues error in the judge’s denial of so much of its motion to amend the judgment that sought application of a contract rate and accrual date other than what was set forth in the original judgment.  Simply Surgical, however, does not challenge the judge’s finding that it failed to establish the contract interest rate or the date of breach.  Interest on damages awarded for breach of contract “shall be added . . . at the contract rate, if established, or at the rate of twelve per cent per annum from the date of the breach or demand” (emphasis added), G. L. c. 231, § 6C, as appearing in St. 1982, c. 183, § 3, and “[i]f the date of the breach or demand is not established, interest shall be added . . . at [the] contractual rate, or at the rate of twelve per cent per annum from the date of the commencement of the action.”  Ibid.  We think the judge properly applied the statutory interest rate as of the date of commencement of the Simply Surgical’s counterclaim.  See Graves v. R.M. Packer Co., 45 Mass. App. Ct. 760, 771 (1998).

3.  Iscon’s claims.[11]  Iscon argues error in the judge’s denial of its motion for judgment notwithstanding the verdict and to amend the jury award, because, it claims, the jury improperly deducted $ 79,589.55 from the nearly $ 140,000 that Iscon claimed to be owed.  We see no abuse of discretion or error of law.  See Bartley v. Phillips, 317 Mass. 35, 43 (1944).

“An account stated does not create a liability where none existed before; it merely determines the amount of a debt where liability already exists.”  Davis v. Arnold, 267 Mass. 103, 110 (1929).  It is “a promise to pay whatever balance is thus acknowledged to be due.”  Rizkalla v. Abusamra, 284 Mass. 303, 307 (1933).  Iscon submitted its account stated claim to the jury.  Accordingly, it was for the jury to decide whether there was an accounting, see Berwin v. Levenson, 311 Mass. 239, 247 (1942), and, if so, for how much.  See Cavanaugh Bros. Horse Co. v. Gaston, 255 Mass. 587, 591 (1926) (“The questions, what was to be believed, and what inferences were proper, were for the jury”).  The judge correctly instructed the jury that it must determine “whether the account balance statement accurately sets forth the amount, if any, due Iscon.”  Iscon did not object to the judge’s instructions, and, as the judge aptly noted, the jury was free to “disbelieve any portion of the account.”  We will not disturb his conclusion that the jury’s verdict should stand.  See Freeman v. Wood, 379 Mass. 777, 781 n.9 (1980).

Amended judgment affirmed.

Order entered January 18,

2013, 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-11723

COMMONWEALTH  vs.  DONOVAN K. SMITH.

Worcester.     November 6, 2015. – March 11, 2016.

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

Homicide.  Robbery.  Attempt.  Felony-Murder Rule.  Constitutional Law, Admissions and confessions, Assistance of counsel.  Evidence, Admissions and confessions, Videotape.  Practice, Criminal, Admissions and confessions, Assistance of counsel, Capital case.

Indictments found and returned in the Superior Court Department on December 7, 2010.

A pretrial motion to suppress evidence was heard by Janet Kenton-Walker, J., and the cases were tried before John S. McCann, J.

Aziz Safar for the defendant.

Susan M. Oftring, Assistant District Attorney, for the Commonwealth.

BOTSFORD, J.  A Superior Court jury found the defendant guilty of the attempted armed robbery and murder in the first degree of Michelle Diaz on theories of extreme atrocity or cruelty and felony-murder.  In this direct appeal from his convictions, the defendant challenges the admission in evidence of his videotaped statement to the police, and the admission of an enhanced recording of a statement made by the defendant while he was left alone during the police interrogation.  He requests relief pursuant to G. L. c. 278, § 33E.  We conclude that the failure of the police to honor the defendant’s right to terminate questioning, a claim the defendant did not raise below, created a substantial likelihood of a miscarriage of justice and requires the reversal of the defendant’s convictions; the defendant is entitled to a new trial.

1.  Background.  From the evidence presented at trial, the jury could have found the following.  On August 24, 2010, at approximately 12:45 P.M., Sara Ventura parked her automobile on Fairfax Road in Worcester.  As she was getting out of the vehicle, she heard a loud scream and looked in the direction of the scream.  She saw nothing, but a few seconds later, she heard what sounded like a gunshot.  She then saw a young African-American man running very quickly down the street.[1]  Around the same time, Carlos Tumer, who was in his apartment on Fairfax Road, heard a “pop” and looked outside the window, where he saw a woman, later identified as the victim, sitting in the driver’s seat of a Lexus automobile with the front passenger’s door open.  Tumer also noticed a dark-skinned man wearing a black shirt and light blue jeans near the front of the vehicle, running away while appearing to adjust the back of his shirt.  Tumer telephoned the police soon thereafter when he noticed that the victim had slumped forward and had blood on her neck.

At approximately 12:47 P.M., Officer Kevin Krusas of the Worcester police department was dispatched to Fairfax Road, where he observed the victim seated in the driver’s seat of her blue Lexus, but leaning across the front passenger seat.  The victim had been shot in the neck but still had a pulse, and fire fighters who arrived at the scene administered cardiopulmonary resuscitation.  The victim was transported to the hospital, where she remained in critical condition for six days until life support measures were withdrawn and she died.

During their investigation, the police learned that Kenneth Cashman, a homeowner on Fairfax Road, had attached to his house a surveillance system consisting of several cameras that generated audio-video recordings of the surrounding areas.  The police viewed the recordings, and although none of the cameras recorded the shooting itself, the recordings showed the victim’s blue Lexus as it arrived on Fairfax Road.  They also showed a male entering the front passenger seat of the Lexus; the Lexus being driven out of the video range of the cameras, but not out of the system’s audio range; and Ventura parking her vehicle on Fairfax Road.

The police retrieved the victim’s cellular telephone and discovered that the last incoming call the victim received came from a telephone registered to William Madison.  Using global positioning information received from Madison’s cellular telephone carrier, the police were able to locate Madison at his apartment on Vernon Street Place in Worcester, where he lived with his mother; his girl friend, Kassie Ago; and her young son.  On August 25, 2010, Detective Sergeant Gary Quitadamo and other Worcester police detectives went to Madison’s home to speak with him regarding the shooting incident.  Madison agreed to go with them to the police station, where he was interviewed.[2]  While Madison was at the police station, police sought, received, and executed a search warrant for Madison’s residence and seized marijuana, a cellular telephone registered to Madison, and a black, long-sleeved T-shirt near a washing machine.  The police had been informed by Madison’s cellular telephone carrier that, within hours of the incident, Ago had contacted the carrier to change the existing telephone number and register the new number under a fictitious name.

The following day, Madison and Ago were each interviewed by the police concerning the August 24 shooting incident, but neither of them provided any substantive information.  One month later, and after further investigation, the police arrested Madison and Ago in connection with the August 24 shooting incident.  On September 29, 2010, Madison and Ago, represented by separate counsel, entered into cooperation agreements with the Commonwealth pursuant to which each agreed to provide information about the shooting incident and to testify against the defendant in exchange for lesser sentences.  On October 7, the police also arrested Kenny Roman, a friend of Ago’s; on January 7, 2012, represented by counsel, Roman entered into a cooperation agreement that called for him to provide information and testify against the defendant regarding the shooting incident in exchange for a lesser sentence.[3]

Madison, Roman, and Ago (collectively, cooperating witnesses) each testified at the defendant’s trial that he or she participated in a plan with the defendant and his older brother, Marcus Young, to rob someone of money and drugs and then split the proceeds.  Roman, who was a friend of the victim and knew her to be a marijuana dealer, suggested the victim as the target.  The plan was for the defendant to actually carry out the robbery.  Because the group believed — based on information supplied by Roman — that the victim might be armed, they agreed that the defendant should carry with him a gun; Madison supplied the gun.

The plan was executed on August 24, 2010.  Ago contacted the victim, arranged for a purchase of marijuana, and told the victim that her friend would be picking it up.  The pickup was to be on Fairfax Road in Worcester.  The defendant, Madison, and Young left Madison’s apartment to walk to Fairfax Road, the defendant walking a few feet ahead of Madison and Young.  When they were approximately 500 feet away from the destination, Madison and Young stopped and the defendant continued walking toward Fairfax Road to meet the victim.  Madison lost sight of the defendant before the defendant reached and entered the victim’s blue Lexus.  The next time Madison saw the defendant, he was running past Madison toward Madison’s apartment.  Madison and Young followed, running behind the defendant.  According to Madison and Ago, once back in the apartment, the defendant stated several times that he had shot the victim.  The defendant returned the gun to Madison, who placed it in Ago’s purse.  Ago and Madison then drove the defendant and Young back to Young’s apartment, where Madison gave the gun to Young, who placed it in a drawer in his bedroom.  According to Ago, Young later disposed of the gun by burying it.[4]

At the crime scene, the police recovered the following:  a can of tire sealant containing a hidden compartment filled with four plastic bags of marijuana from underneath the victim’s Lexus near a rear tire; an envelope containing $ 250 in the driver’s side door of the Lexus; a .380 caliber bullet casing in the driver’s seat; and a spent projectile on the floor inside the vehicle that the Commonwealth’s ballistician identified as being a hollow-point .380 bullet used in a semiautomatic firearm.  The black shirt the police had seized from Madison’s apartment, identified by Ago as belonging to the defendant, was tested for blood and gunshot residue and tested negative for the presence of either.

On October 6, 2010, police arrested the defendant, who was eighteen years old, at a school program and brought him to the Worcester police station for an interrogation in connection with the incident.  Worcester police Detective Michael Tarckini led the interrogation, which lasted approximately one hour and thirty-five minutes and was recorded on audio-video tape.[5]  Detective William Escobar and, briefly, Detective Lieutenant John Towns, both Worcester police officers, also participated in the interrogation.  At the outset, Tarckini administered Miranda warnings to the defendant; the defendant signed a written waiver form and agreed to speak to the police.  The defendant insisted to the detectives for some time that he had had no involvement in the August 24 shooting incident.  However, he later admitted that he participated in a plan devised by Ago and Madison to rob the victim, but that the robbery failed after the victim became aware that he was attempting to rob her.  He repeatedly denied shooting the victim.  He told the police that he got out of the victim’s automobile and ran away after he realized he could not obtain the drugs, that he did not have a gun, and that he heard gunshots as he was running away.[6]

On December 7, 2010, the defendant was indicted for murder in the first degree, G. L. c. 265, § 1, and attempt to commit armed robbery, G. L. c. 274, § 6.  On January 4, 2012, the defendant filed a motion to suppress his statement to the police on the ground that the statement made was involuntary as a result of improper interrogation tactics used by the police in eliciting a confession.[7]  An evidentiary hearing was held before a Superior Court judge at which Tarckini and Quitadamo testified.  That judge denied the motion on June 12, 2012.  The defendant’s trial commenced before a jury and a different judge on September 24, 2012,[8] and on October 2, the jury found the defendant guilty of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, as well as of attempt to commit armed robbery.  He was sentenced to life in prison without the possibility of parole on the murder charge and a concurrent term of from four to five years on the charge of attempt.  The defendant filed a timely notice of appeal to this court.

2.  Discussion.  a.  Admission of the defendant’s statement.  In this appeal, the defendant challenges the admission of his statement to the police on two separate grounds:  (1) during the custodial interrogation[9] the police conducted, the defendant exercised his right to cut off questioning but the police improperly did not honor that exercise; and (2) the statement was induced by falsehoods, trickery, and promises of leniency improperly put forth by the defendant’s police interrogators, and therefore was not voluntary.[10]  Before we consider the defendant’s claims, we set forth additional facts about the interrogation.

i.  Facts.  After administering Miranda warnings to the defendant and obtaining his agreement that he understood the warnings and was willing to talk to the police, Tarckini, with periodic questions or statements inserted by Escobar, told the defendant the following:  the police had video footage of him sitting in the victim’s Lexus and running from that vehicle after the gunshot was heard; there was deoxyribonucleic acid (DNA) and fingerprint evidence belonging to him in the Lexus;[11] people had identified him as the shooter; and the police had recovered his eyeglasses from Madison’s apartment with the defendant’s DNA on them.[12]  For approximately thirty minutes, the defendant’s repeated responses to these assertions by the police were to the effect that he did not know what they were talking about, and he denied knowing the victim or the fact that she had been shot and killed.  Then, the following exchange occurred:

Defendant:  “I’m done.”

Tarckini:  “You’re done with what?”

Defendant:  “I’m done talking.  I don’t wanna talk no more.”

Tarckini:  ”You don’t wanna talk anymore?”

Defendant:  “No.  ‘Cause y’all really don’t believe me.”

Tarckini:  “It’s — We already tried to explain that to you, Donovan.  I don’t think you get it.”

Defendant:  “Yeah, I understand.”

Tarckini:  “It’s not believing.”

Defendant:  “I understand, sir.”

Tarckini:  “It’s not believing.  It’s what we know.”

Defendant:  “Okay.”

Tarckini:  “What the facts are.”

Defendant:  “What the facts show.”

Tarckini:  “Right.”

Defendant:  “Right.”

Tarckini:  “Right?”

Defendant:  “Yes.”

Tarckini:  “We don’t make stuff up.  We don’t make people talk to us.  We don’t make people pick people out.  We don’t put people’s fingerprints inside of a car.  We don’t make up videos.  The facts are the facts.”

When the defendant did not respond, Tarckini continued:

Tarckini:  “When we talk to people, we ask certain questions to gauge your truthfulness, things that I know you’re not gonna lie about like name, address, who you live with, mom, dad, date of birth, stuff like that.  Then when we ask you questions about other things, your body reacts a certain way.  It’s just a natural thing.  You can’t help it.  Everyone does it.  So that’s what I — when you answer my questions and I say you’re lying to me, your body’s telling me that.  Not only your words but your body.  You understand?”

The defendant, who had remained completely silent during Tarckini’s speech, spoke only to answer “yes” to the question whether he understood.  Tarckini again continued:

Tarckini:  “You have the opportunity now to give your side of the story, to maybe lighten the load, get a little bit off yourself.  And you’re being a tough guy, in the sense that you’re just gonna — you’re gonna dig in and sit in a hole and wait out the storm.  And I don’t think you realize all the things that are gonna happen going forward.  We’re trying to give you information so you can process all that.  What are you thinking about?”

Defendant:  “Life.”

Tarckini:  “Think life’s been tough to you?”

(The defendant nods, indicating yes.)

Tarckini:  “Yeah?  Sometimes life isn’t fair, man.  Sometimes we’re in the wrong place at the wrong time.  Sometimes circumstances just put you in a bad way.  I kinda think that’s what happened here.”

Approximately fifty seconds of silence passed, after which the defendant stated:  “I didn’t shoot nobody,” and then he proceeded to make a series of inculpatory responses to questions by the officers.  He described a plan among Ago, Madison, and himself to rob the victim, and detailed what happened after he got into the victim’s automobile, including that he was in it on the day of the shooting.  He stated that the victim picked him up in her automobile, they drove around together before parking on the street, and the victim asked him for the money multiple times, saying that the defendant better not be robbing her; that when he reached for the can containing the marijuana, the victim pulled it away and held it outside the window, out of his reach; that the victim then called out for help; and that when he realized he could not obtain the drugs, he fled and heard gunshots as he ran away.  He consistently denied having a gun, seeing the victim with a gun, and shooting her.

Approximately twenty minutes after the defendant made these statements, the two detectives left the defendant alone in the interrogation room for approximately six minutes; the video and audio recording system were still operating.  The defendant sat in the same chair he had been in for the entire interview, and muttered something to himself to the effect of, “Why’d you shoot her?  You didn’t even shoot the bitch.  You didn’t shoot her.  You didn’t fucking shoot her.”[13]  When the detectives returned, the defendant admitted that after the attempted robbery, he went back to Madison’s house to change his clothes, and the interrogation ended soon thereafter, following the defendant’s request for an attorney.[14]

ii.  The defendant’s claims.  The defendant contends that although he initially waived his Miranda rights, he later invoked his constitutional right to remain silent when he said that he was “done talking,” an invocation that the police did not “scrupulously honor.”  Miranda v. Arizona, 384 U.S. 436, 444-445, 473-474, 478-479 (1966).  See Michigan v. Mosley, 423 U.S. 96, 102-104 (1975).  The argument is framed as one of ineffective assistance of trial counsel for failure to move to suppress the admission of the defendant’s inculpatory responses to the police based on this invocation.  See Commonwealth v. Williams, 453 Mass. 203, 207 (2009), citing Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).  The Commonwealth argues that the defendant’s claim must fail because, even if trial counsel had brought a motion to suppress raising a claim of invocation of the right to remain silent, the motion would not have succeeded.  See Williams, supra.  In the Commonwealth’s view, the defendant’s statement that he was done talking was an ambiguous remark rather than a clear, unequivocal invocation of his right to remain silent, and the fact that the defendant thereafter continued speaking supports the conclusion that he did not intend to invoke the right when he made the remark about being “done.”  We take the same view as the defendant.

“It is clear that a defendant has not only the right to remain silent from the beginning but also a continuing right to cut off, at any time, any questioning that does take place.”  Commonwealth v. Bradshaw, 385 Mass. 244, 265 (1982).  However, if a defendant has waived his or her Miranda warnings and later wishes to remain silent, the invocation of that right “must be clear and unambiguous[], such that ‘a reasonable police officer in the circumstances would understand the statement to be an invocation of the Miranda right.’ . . .  Whether the defendant has met this burden is a fact-specific determination to be made based on the totality of the circumstances” (citation omitted).  Commonwealth v. Howard, 469 Mass. 721, 731 (2014), citing Commonwealth v. Almonte, 444 Mass. 511, 519, cert. denied, 546 U.S. 1040 (2005).

In these circumstances, the defendant’s statement, “I’m done,” by itself, was ambiguous, coming as it did as a nonresponse to a long series of statements by Tarckini and Escobar about what the police already knew.  In this context, Tarckini’s question to the defendant, “You’re done with what?” was an appropriate effort to clarify.  See Commonwealth v. Santos, 463 Mass. 273, 286 (2012).  See also Commonwealth v. Hearns, 467 Mass. 707, 718 (2014).  But the defendant’s immediate and direct answer, “I’m done talking.  I don’t wanna talk no more,” was certainly a clarifying response to Tarckini’s inquiry, one that resolved completely the previous ambiguity, and asserted in no uncertain terms the defendant’s desire and intention to end the interrogation.  See Howard, 469 Mass. at 733 n.13.[15]  However, instead of accepting the defendant’s invocation and terminating the interview, Tarckini, after repeating the defendant’s answer,[16] launched into a lengthy monologue in an apparent effort to convince the defendant to keep talking — an effort that succeeded.  This was not proper.  See Hearns, supra at 719.[17]

We conclude that the defendant has met his burden to establish that he clearly stated his intent to cut off further questioning by the police; “his choice of words fell well within the range of cases where we have found a clear and unequivocal invocation.”  Hearns, 467 Mass. at 718.  See, e.g., id. at 717 (defendant’s postwaiver statement, “Well then, I don’t want to talk.  I haven’t got nothing to say,” was clear invocation).  See also Howard, 469 Mass. at 732-733 (stating, “I would like to stop at that point” sufficient to invoke right to silence); Commonwealth v. Santana, 465 Mass. 270, 277, 282 (2013) (postwaiver statement that defendant could not “say any more” was clear invocation of right to silence); Santos, 463 Mass. at 285 (postwaiver statement that “I’m not going on with this conversation” in itself constituted clear invocation).  The police, however, continued to interrogate the defendant, and the defendant responded to their questions for the next fifty-three minutes, making a number of inculpatory responses.

“[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’”  Mosley, 423 U.S. at 104.  The factors identified in Mosley to evaluate this issue all point to the conclusion that scrupulous honoring of the defendant’s right did not occur here.[18]  That is, the police did not immediately cease questioning the defendant; the questioning continued almost without a pause, and without a fresh set of Miranda warnings; and the scope and subject matter of the interrogation remained the same as before the invocation — the defendant’s involvement in the victim’s death.  See id. at 106-107.  See also Commonwealth v. Taylor, 374 Mass. 426, 433-434 (1978).  In these circumstances, a motion to suppress the defendant’s statement to the police on the ground of invocation of the right to remain silent would have been successful, see, e.g., id. at 433-436, and trial counsel’s failure to raise this ground constituted error.  See Wright, 411 Mass. at 682.

The defendant advances a separate but related claim that what he stated while he was alone in the interrogation room (volunteered statement) should not have been admitted in evidence.  The defendant argues that the volunteered statement was wholly ambiguous and that, in the circumstances, its admission was more prejudicial than probative, and the trial judge abused his discretion in admitting it.[19]  Our plenary review of this case pursuant to G. L. c. 278, § 33E, persuades us that the volunteered statement was not admissible for a reason different from the one or ones advanced by the defendant.  See Commonwealth v. Bell, 460 Mass. 294, 295, 306 (2011), S.C., 473 Mass. 131 (2015); Commonwealth v. Silva-Santiago, 453 Mass. 782, 805-810 (2009).

As discussed, when the defendant invoked his right to terminate questioning, the police were required immediately to end the interview.  At that point, all questioning should have ceased, and it follows that the recording of the interview also should have ceased.  That is not what happened.  Rather, the two detectives continued to interrogate the defendant and the recording equipment continued to operate, including during the time, postinvocation, that the detectives left the defendant sitting for approximately six minutes by himself in the interrogation room, during which time he made the volunteered statement.  The critical question is “whether . . . the evidence to which instant objection is made has been come at by exploitation of [the primary] illegality or instead by means sufficiently distinguishable to be purged of the primary taint” (citation omitted).  Wong Sun v. United States, 371 U.S. 471, 488 (1963).  See Bradshaw, 385 Mass. at 258.  It is clear that without the audio-video recording, there would be no evidence of the defendant’s statement — indeed, as one of the police officers, Quitadamo, testified, the only way the police were able to make out the defendant’s words in the volunteered statement at all was through enhancement of the sound quality of the audio recording by using some technological means to reduce the ambient noise.  The Commonwealth should not be permitted to take advantage of a recording that should not have been made by introducing the recording in evidence.  Cf. G. L. c. 272, § 99 P.  Adherence to the principle that the defendant’s constitutional right to cut off questioning must be “scrupulously honored” leads us to conclude that, in the particular circumstances presented here, all portions of the defendant’s statement procured after he invoked his right to remain silent were inadmissible, including the volunteered statement.[20]

The remaining question is whether the erroneous admission of the defendant’s statement, including the volunteered statement, gave rise to a substantial likelihood of a miscarriage of justice because the statement was likely to have affected the jury’s verdict.  See Wright, 411 Mass. at 682.  We conclude that it did.  The defendant admitted to participating directly in the group plan to rob the victim, and more particularly to being the one who was charged with carrying it out, and although he denied shooting the victim, the jury were certainly free to disbelieve him on that point.  “[A] defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.”[21]  Arizona v. Fulminante, 499 U.S. 279, 296 (1991), quoting Bruton v. United States, 391 U.S. 123, 139-140 (1968) (White, J., dissenting).  It is true that the three cooperating witnesses each described the defendant’s involvement in the plan to rob the victim, and two of them quoted the defendant as saying that he shot the victim, but each of the three was also a direct participant in the robbery plan and had been charged as an accessory to the victim’s murder, and the three witnesses’ testimony was conflicting with respect to the defendant’s role in the scheme:  according to Roman, the idea to rob the victim came entirely from Ago and Madison; Madison testified that the idea was Roman’s; and only Ago testified that the defendant and his brother were the source of the idea.  Moreover, it was undisputed that the gun used in the shooting was Madison’s; that Roman was the direct contact to the victim and the source of the information that she might be armed; and that the idea to carry a gun was not the defendant’s.  The ability of defense counsel to take advantage of these points, however, was impaired because the defendant’s own statement directly corroborated much of the witnesses’ version of events.  Finally, this is not a case in which other types of evidence, independent of the cooperating witnesses’ testimony, pointed convincingly to the defendant’s guilt.  No forensic evidence — for example, DNA or fingerprints — connected the defendant to being inside the victim’s vehicle or being involved in the incident more generally; the murder weapon was never recovered; Ventura and Tumer, the two witnesses who saw a male fleeing the scene, could not identify the defendant as the assailant; and the audio-video recordings taken from Cashman’s home did not enable a viewer to discern the assailant’s identity.  In view of all the circumstances, we conclude that the admission of the defendant’s statement likely influenced the jury’s verdicts, and therefore created a substantial likelihood of a miscarriage of justice.  The defendant’s convictions must be reversed and the case remanded for a new trial.[22]

b.  Review under G. L. c. 278, § 33E.  We address an additional issue raised by our review of this case under G. L. c. 278, § 33E.  The jury found the defendant guilty of murder in the first degree under theories of felony-murder and extreme atrocity or cruelty.[23]  In our view, the trial evidence did not adequately support a guilty finding under the second theory.  The victim was killed by a single gunshot that entered her neck as she sat in her automobile.  Considering the evidence in the light most favorable to the Commonwealth, there was evidence, supplied by the defendant in his statement, that he had been in the victim’s automobile right before she was shot.  In addition, Madison and Ago testified that when the defendant returned to Madison’s apartment from Fairfax Road, he stated that he had shot the victim, and there was evidence that a few seconds before the shot was fired, a yell or scream by a female voice could be heard.  These witnesses also testified that the defendant knew the gun was loaded.  Other than what has just been summarized, however, there was no evidence presented about the actual circumstances of the shooting.[24]  Moreover, although Madison testified that the bullets in the gun were hollow-point bullets, there was no evidence that the defendant knew that the gun contained hollow-point bullets.[25]  Furthermore, the evidence indicated, without dispute, that the gun in question was Madison’s, that Madison himself had loaded it, and that it was the defendant’s brother’s idea for the defendant to bring a gun in response to information supplied by Roman that the victim might be armed.  In terms of the Cunneen factors, see Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983), we conclude that the record contains no evidence from which the jury properly could find that the defendant was indifferent to or took pleasure in the victim’s death, that the victim was conscious after being shot, that she sustained extensive physical injuries apart from the gunshot, that there were multiple blows, that excessive force was used, that the instrument used to kill her was unusual, or that the means that brought about her death were disproportional to the means needed to cause death.  In any retrial, therefore, the Commonwealth may proceed only under the theory of felony-murder.[26]

3.  Conclusion.  The defendant’s convictions are reversed, the verdicts are set aside, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

Full-text Opinions

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

SJC-11841

GEORGE GOE[1]  vs.  COMMISSIONER OF PROBATION & another.[2]

Suffolk.     November 2, 2015. – March 14, 2016.

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

Practice, Criminal, Probation.  Interstate Compact for Adult Offender Supervision.  Global Positioning System Device.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on January 29, 2015.

The case was reported by Cordy, J.

Beth L. Eisenberg, Committee for Public Counsel Services (Lily Lockhart, Committee for Public Counsel Services, & Spencer Lord with her) for the petitioner.

Steven R. Strom, of Connecticut, for the intervener.

Sarah M. Joss, Special Assistant Attorney General, for Commissioner of Probation.

U. Gwyn Williams, Laura Carey, & Charles Stones, for Citizens for Juvenile Justice & another, amici curiae, submitted a brief.

GANTS, C.J.  This case comes to us on a reservation and report from the single justice asking the following questions:

“(1) Whether the Massachusetts courts are the appropriate forum for challenging additional probation conditions imposed on a probationer transferred to Massachusetts pursuant to the Interstate Compact for Adult Offender Supervision; and, if so, what is the proper mechanism for mounting such a challenge?

“(2) Whether a transferee probationer is entitled to actual notice of mandatory [global positioning system (GPS)] monitoring pursuant to G. L. c. 265, § 47[,] from the sentencing judge, or whether such notice is implied or waived by a petitioner’s voluntary transfer to Massachusetts[?]

“(3) Whether mandatory GPS monitoring for crimes committed as a minor constitutes cruel and unusual punishment, where the minor was convicted as an adult in another jurisdiction?

“(4) Whether the Commissioner of Probation’s Policy on the Issuance of Travel Permits is ultra vires; and, if not, whether the application of that policy to the petitioner violated his right to interstate travel?”

In answer to the first question, we conclude that, where a probationer whose supervision is transferred to Massachusetts under the Interstate Compact for Adult Offender Supervision (compact) contends that a special condition of probation that was added by Massachusetts is not mandated by Massachusetts law or is unconstitutional, this determination is appropriately made by a Massachusetts court, and the appropriate mechanism to obtain such a determination is through a complaint for declaratory relief.  We also conclude that the Massachusetts probation department may not add mandatory GPS monitoring under G. L. c. 265, § 47, as a special condition of probation for this probationer.  In light of that conclusion, we decline to answer questions two and three because they are moot.  In answer to question four, regarding the Policy on the Issuance of Travel Permits promulgated by the Massachusetts Commissioner of Probation (commissioner), we conclude that the prohibition on out-of-State travel for probationers being supervised for sex offenses is not an additional condition of probation imposed on a transferred probationer.  We, therefore, reject the contention that the policy is ultra vires as an additional condition.  We decline to answer whether the application of that policy to the petitioner violated his right to interstate travel because the appropriate forum for such a constitutional claim is the sending State, where it may be considered with the petitioner’s nonconstitutional arguments for modification of the sending State’s condition that he not travel out-of-State without permission from his probation officer.[3]

Background.  On April 29, 2013, the petitioner, who was the defendant in criminal proceedings in the Connecticut Superior Court (defendant), pleaded guilty to two crimes that he committed at the age of fourteen against a six year old relative:  sexual assault in the third degree and risk of injury to a minor.  Although he was a juvenile when he committed these crimes and only fifteen years old when he pleaded guilty to their commission, he was convicted as an adult.  After completing a residential treatment program, he was sentenced to a period of incarceration of five years (the execution of which was suspended) and ten years of probation supervision.  The judge ordered a number of special conditions and, as permitted under Connecticut law, Conn. Gen. Stat. § 53a-30(b) (2015), authorized the probation department to add “any other conditions deemed appropriate.”

As a general condition of probation, the defendant was ordered not to leave the State of Connecticut “without permission from the Probation Officer.”  The Connecticut probation department also added twenty-four special conditions, including that the defendant “will submit to electronic monitoring as directed by a Probation Officer.”  The defendant signed the probation form that set forth these conditions and that obliged him to “abide by them,” and his signature was witnessed by his grandmother.

The defendant applied pursuant to the compact to transfer his probation supervision to Massachusetts, where he intended to live with his maternal grandparents.[4]  His application was granted and his supervision was transferred to Massachusetts, where he was assigned to the probation service of the Middlesex County Division of the Juvenile Court Department in Lowell because he was then sixteen years old.

On February 19, 2014, the defendant filed a “Motion to Reopen and Modify Conditions of Probation” in the Superior Court in Connecticut that requested modification of several conditions, claiming they were unnecessary, impossible to comply with, or detrimental to his rehabilitation.  Among the conditions he sought to modify were (1) that he submit to electronic monitoring as directed by a probation officer, and (2) that he not travel out of Massachusetts without the permission of a probation officer.[5]  As to these conditions, the defendant asked the judge to modify or eliminate the requirement of electronic monitoring, and to authorize him, with prior approval of the Connecticut or Massachusetts probation department, to travel with his maternal grandparents to New Hampshire every weekend from May 23 to September 1, 2014.  On April 3, 2014, as to these conditions, the judge granted the defendant’s motion only to the extent that “GPS monitoring will be at [the] discretion of [the State] of Massachusetts Dept. of Probation (Juvenile).”

On June 3, 2014, the defendant’s attorneys wrote a letter to the commissioner asking that the defendant not be subjected to mandatory GPS monitoring, and that he be considered for travel permits to New Hampshire and Florida, “so long as his itinerary and other aspects of his travel meet approval by his Probation Officer.”  On August 22, 2014, the commissioner responded that the probation department considered the defendant’s arguments for relief from the GPS requirement but decided to impose GPS monitoring because of the level of seriousness of the crime, the difference in age between the defendant and the victim, “the nature of the supervision for another state,” the level of risk posed by the above factors, “the fact that he was treated in Connecticut as an adult on a long adult probation order[,] and . . . that Connecticut originally included GPS as a condition and then modified its Order to leave it to Massachusetts’ discretion.”  He added that, “[b]efore Probation can consider any adjustment to the GPS requirement, [the defendant] will have to complete one year of supervision with no violations and with full compliance.”[6]  The commissioner also declared that, once the defendant turned eighteen years of age [which he did in July, 2015], “Probation will continue the GPS as it would for any adult under [G. L. c. 265, § 47].”[7],[8]

The commissioner also wrote that the defendant had not justified an exception to the probation department’s travel policy, dated January 11, 2012, which declared that the “Probation Service shall not authorize travel permits” under various circumstances, including where “[t]he probationer has an order of electronic monitoring . . . as a condition of probation,” where “[t]he probationer is being supervised for a sex offense,” or where the probationer is an “interstate compact sex offender unless the sending state court has approved, and the probationer has produced, a travel permit in writing” (emphasis in original).  The commissioner noted that, although the probation department will not authorize travel permits in these circumstances, “out of state travel is possible where a judge authorizes it.”

On March 13, 2015, the defendant appeared the Superior Court in Connecticut and admitted that he violated conditions of his probation by joining and participating in the Boy Scouts and by accessing a Facebook account without permission.  The judge found the defendant in violation of his probation and placed him on a six-month “watch” during which he would be monitored month-to-month in what the judge described as “intensive sex offender probation.”  If the defendant completed the six-month period with no violations of the conditions of probation, he would be returned to probation with the same termination date and the same conditions as were originally imposed.[9]

In January, 2015, the defendant filed the instant petition in the county court pursuant to G. L. c. 211, § 3, seeking extraordinary relief from what he characterized as the unconstitutional and “otherwise unreviewable” orders of the commissioner to mandate GPS monitoring of the defendant and to forbid him from traveling out of State.  On March 13, 2015, the same day the defendant was found in violation of probation conditions by a Connecticut judge, the single justice reserved and reported the case, along with his four questions.

Discussion.  1.  Interstate Compact for Adult Offender Supervision.  The compact regulates the interstate transfer of supervision of those individuals on probation or parole due to the commission of a criminal offense.  Interstate Commission for Adult Offender Supervision, ICAOS Rules, Rule 1.101, at 6 (effective Mar. 1, 2014) (ICAOS Rules), http://www.interstatecompact.org/Portals/0/library/legal/ICAOS_Rules.pdf [https://perma.cc/SM9H-NQBL]. (defining “[o]ffender” subject to compact).  The compact has been enacted by statute in all fifty States as well as the District of Columbia, Puerto Rico, and the United States Virgin Islands.  Interstate Commission for Adult Offender Supervision, ICAOS Bench Book for Judges and Court Personnel, at 40-41 (2014) (ICAOS Bench Book), http://www.interstatecompact.org/Portals/0/library/publications/Benchbook.pdf [https://perma.cc/3DFZ-RUEQ].  It was enacted in Massachusetts in 2005.  St. 2005, c. 121.  The compact was created to address weaknesses in the earlier Interstate Compact for the Supervision of Parolees and Probationers, which was drafted in 1937.  ICAOS Bench Book, supra at 35, 38.  The compact created the Interstate Commission on Adult Offender Supervision and empowered it to promulgate rules regulating the transfer of offenders that have the force of statutory law in all of the compacting States.  ICAOS Bench Book, supra at 38, 43-44.  See, e.g., G. L. c. 127, § 151E (b).  The compact is the exclusive means to transfer supervision from one State to another for those offenders who are eligible under the compact.  ICAOS Rule 2.110(a), supra at 21.

The application of the rules of the compact can be illustrated by considering the case of the defendant, who sought to transfer probation supervision from Connecticut to Massachusetts.  Once an offender has been convicted and sentenced to some form of supervision in Connecticut, transfer of that supervision to Massachusetts must first be permitted by Connecticut.  ICAOS Rule 3.101, supra at 22.  ICAOS Bench Book, supra at 53.  If approved, the offender must complete an application, which Connecticut must transmit to Massachusetts.  ICAOS Rule 3.102, supra at 28.  In certain situations, such as where the offender is a resident of Massachusetts or where the offender has means of support and family in the Commonwealth who can assist in the offender’s plan of supervision, acceptance of the transfer by Massachusetts is mandatory; in other cases acceptance is discretionary.  ICAOS Rules 3.101, 3.101-2, supra at 22, 26.

Where an offender transfers probation supervision from Connecticut (the sending State) to Massachusetts (the receiving State) pursuant to the compact, Connecticut must inform Massachusetts of the special conditions that it has imposed at the time of sentencing or during the period of probation.  ICAOS Rule 4.103(c), supra at 42 (“A sending state shall inform the receiving state of any special conditions to which the offender is subject at the time the request for transfer is made or at any time thereafter”).  Massachusetts must enforce those conditions unless it is unable to do so, and if it is unable, it must notify Connecticut of its inability to do so at the time the request for transfer of supervision is made.  ICAOS Rule 4.103(d), supra at 42.  See ICAOS Bench Book, supra at 68 (“Although a court may as a condition of probation impose a special condition and require that the condition be met in the receiving state, the receiving state can refuse to enforce the special condition if the receiving state is unable to do so”).  If Massachusetts were to inform Connecticut that it is unable to enforce a special condition of probation, Connecticut has the option of removing the problematic condition or withdrawing the transfer request and requiring the offender to complete supervision in Connecticut.  ICAOS Bench Book, supra.

At the time Massachusetts accepts the probationer or during the term of supervision, Massachusetts may add a special condition, but only “if that special condition would have been imposed on the offender if sentence had been imposed in the receiving state.”  ICAOS Rule 4.103(a), supra at 42.  Because the compact authorizes Massachusetts (the receiving State) to add only those conditions that “would have been imposed” if the offender had been sentenced in Massachusetts, the probation department in Massachusetts may add a special condition only where a judge would have been required by law to impose that special condition on the defendant at sentencing; it may not impose a condition of probation that a sentencing judge simply had the discretion to impose.[10]  If Massachusetts were to add a special condition, it must notify Connecticut of the nature of the special condition and its purpose.  ICAOS Rule 4.103(b), supra at 42.  If Connecticut were to decide not to accept that condition, it may exercise its authority to retake the probationer, thereby revoking the transfer.  See ICAOS Rule 5.101(a), supra at 55.

After a Connecticut probationer is transferred to Massachusetts, the probationer must be supervised in a manner “consistent with the supervision of other similar offenders sentenced in [Massachusetts].”  ICAOS Rule 4.101, supra at 40.  However, Connecticut retains jurisdiction over the probationer and may “retake” him or her at any time for any reason.[11]  ICAOS Rule 5.101(a), supra at 55.  If the probationer were to commit a significant violation of probation, Massachusetts would be required to inform Connecticut of the violation but could not institute proceedings to revoke the offender’s probation.  ICAOS Rule 4.109, supra at 49.  Only Connecticut could initiate revocation proceedings, and such proceedings could only occur in Connecticut, subject only to a hearing in Massachusetts establishing probable cause for the violation.  ICAOS Bench Book, supra at 76.  ICAOS Rule 5.108, supra at 65.  Of course, if a defendant were to violate a probation condition by committing a new crime in Massachusetts, the defendant may be prosecuted for that crime in Massachusetts, but any probation revocation must take place in Connecticut.[12]  ICAOS Bench Book, supra.

With this background regarding the operation of the compact, we turn now to the reported questions.

2.  Question one.  Question one asks “[w]hether the Massachusetts courts are the appropriate forum for challenging additional probation conditions imposed on a probationer transferred to Massachusetts pursuant to [the compact]; and, if so, what is the proper mechanism for mounting such a challenge.”  This question is raised in the context of the commissioner’s somewhat confusing position regarding GPS monitoring of the defendant.  We characterize it as confusing because, after April 3, 2014, when the judge in Connecticut modified the defendant’s special condition of probation to provide that “GPS monitoring will be at [the] discretion” of the Massachusetts probation department– suggesting that the probation department should make an individualized determination whether the defendant should be subject to GPS monitoring — the defendant’s probation officer informed defense counsel on April 23, 2014, that GPS monitoring of the defendant would continue because it was mandated by G. L. c. 265, § 47.  The probation officer stated that, even though the defendant was a juvenile, he had been convicted as an adult in Connecticut, and all adult sex offenders were required by § 47 to be monitored by GPS.  However, as earlier noted, when the commissioner on August 22, 2014, denied the defendant’s request to be relieved of the requirement of GPS monitoring, the commissioner gave individualized reasons for continuing GPS monitoring, but stated that, when the defendant reached the age of eighteen, GPS monitoring would become mandatory under § 47.  We need not dwell on this confusion to determine whether the probation department’s reason for imposing GPS monitoring on the defendant before he turned eighteen was the claimed statutory mandate of § 47 or an individualized determination, because the defendant has turned eighteen and it is clear that the probation department has determined that GPS monitoring of the defendant is now mandated by § 47.  The first question essentially asks whether the Massachusetts courts are the appropriate forum to challenge this determination.  We conclude that they are.

As noted earlier, the Massachusetts probation department under ICAOS Rule 4.103(a), supra at 42, may add a special condition of probation only where that condition is mandated by law in Massachusetts.  Where a probationer contends that the special condition added by Massachusetts is not mandated by Massachusetts law or is unconstitutional, this determination is appropriately made by a Massachusetts court.  Allowing a Massachusetts court to make this determination neither impairs the jurisdiction of the sending State court nor undermines the judgment or conditions of supervision imposed by the sentencing court.  If a Massachusetts court were to find that Massachusetts has improperly added a special condition, Massachusetts probation authorities would merely be precluded from imposing the additional condition.  Because the probation condition may be added by Massachusetts only where it is mandated by Massachusetts law, a Connecticut court could not eliminate the condition of the transferred probationer by modifying the defendant’s probation conditions.  Thus, the courts of the sending State (here, Connecticut) are not the appropriate forum to determine whether Massachusetts law truly mandates a probation condition added by Massachusetts.

In contrast, if a probationer were to challenge whether a probation condition that was imposed by the sending State was prohibited by the statutory or constitutional law of the United States or the sending State, the only appropriate forum to bring such a claim would be a court in the sending State, because only a court in the sending State could modify or eliminate a condition imposed by the sending State.[13]

Having concluded that the defendant is entitled to challenge in a Massachusetts court the probation department’s determination that GPS monitoring of the defendant is mandated by § 47 once the defendant reaches the age of eighteen, we now turn to that issue.  As noted earlier, mandatory GPS monitoring is in conflict with the special condition imposed by the judge, which required the probation department in Massachusetts to exercise its discretion in determining whether to subject the defendant to GPS monitoring and implicitly required an individualized evidence-based determination.  Requiring GPS monitoring for the duration of supervision without giving a probation official the discretion, where appropriate, to discontinue such monitoring constitutes a more restrictive condition of supervision that must be considered an additional condition imposed by Massachusetts under the compact.  See Interstate Commission for Adult Offender Supervision, Advisory Opinion 1-2015, at 3 (Feb. 12, 2015), http://www.interstatecompact.org/Portals/0/library/legal/advisoryopinions/AdvisoryOpinion_1-2015_NC.pdf [https://perma.cc/SZ9Q-7XRM] (North Carolina statute allowing probationers who violate conditions of probation to be confined for up to three days in lieu of revocation proceedings constitutes additional condition imposed by North Carolina when applied to out-of-State offenders transferred to North Carolina under compact).  This additional condition of mandatory GPS monitoring is permissible under the compact only if Massachusetts law, specifically § 47, requires that it be imposed on the defendant.

The commissioner contends that § 47 requires GPS monitoring for “[a]ny person who is placed on probation for any . . . ‘sex offense,’” and that the defendant is subject to that statutory requirement once he becomes eighteen because, even though he committed the sex offense when he was fourteen years old, he was convicted in Connecticut of a sex offense as an adult.

Certainly, if the defendant were an adult when he committed the Connecticut sex offense, GPS monitoring would be required under § 47, because he was placed on probation for a “sex offense,” as defined in G. L. c. 6, § 178C, which includes an indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B, “or a like violation of the laws of another state.”  The defendant’s conviction in Connecticut of sexual assault in the third degree, in violation of Conn. Gen. Stat. § 53a-72a(a) (2015), is a “like violation” of the Massachusetts crime of indecent assault and battery.[14]

The defendant, although convicted as an adult, was not an adult when he committed these sexual offenses; he was fourteen years old.  Because of his age, if these crimes had been committed in Massachusetts, the Commonwealth could not have initiated a criminal proceeding against the defendant as an adult; it could only have proceeded against him as a juvenile.  See G. L. c. 119, § 74.  Therefore, if these crimes had been committed in Massachusetts, the defendant, at worst, would have been adjudicated delinquent in the Juvenile Court.[15]  See id.  If he were adjudicated delinquent and sentenced to probation, he would not be subject to mandatory GPS monitoring pursuant to § 47.  See Commonwealth v. Hanson H., 464 Mass. 807, 816 (2013) (“mandatory GPS monitoring pursuant to § 47 does not apply to juveniles who have been adjudicated delinquent”).  Therefore, if the defendant had committed these crimes in Massachusetts, a Juvenile Court judge in the exercise of discretion could order GPS monitoring as a condition of his probation, but that condition would not be mandated by law.  See id. at 816-817.

Nor, where the crime was committed by a juvenile, would GPS monitoring become a mandatory condition of probation once the juvenile reached the age of eighteen.  Where a judge at sentencing did not order GPS monitoring as a special condition of a juvenile’s probation, a judge in the exercise of discretion could add this special condition if (and only if) a probationer were found in violation of the conditions of probation.  Commonwealth v. Goodwin, 458 Mass. 11, 22-23 (2010).  But the judge could not add this punitive special condition without a probation violation simply because the offender turned eighteen, and § 47 cannot reasonably be interpreted to mandate that result.

Under ICAOS Rule 4.103(a), supra at 42, Massachusetts, as the receiving State, could add GPS monitoring as a special condition of probation only “if that special condition would have been imposed on the offender if sentence had been imposed in the receiving state.”  Because that special condition would not necessarily have been imposed in Massachusetts had the defendant been sentenced in Massachusetts for the crimes he committed when he was fourteen years old, the Massachusetts probation department is prohibited from imposing GPS monitoring as a mandatory condition of probation.  Rather, as required by the judge’s order on April 3, 2014, GPS monitoring may be ordered only at the discretion of the Massachusetts probation department, based on an individualized determination.  We therefore remand this matter to the single justice, who shall direct the commissioner to make an individualized determination in the exercise of his discretion whether to subject the defendant to GPS monitoring.

Having answered the reported question and resolved the underlying issue, we now turn to the second part of that question:  “what is the proper mechanism for mounting such a challenge?”  We conclude that the proper mechanism is a complaint for declaratory judgment.  A declaratory judgment action filed pursuant to G. L. c. 231A and Mass. R. Civ. P. 57, 365 Mass. 826 (1974), will allow a court to determine whether an additional special condition is mandated by Massachusetts law and whether such a condition is constitutional.  In the future, an offender supervised in Massachusetts pursuant to the compact should utilize that procedure to adjudicate his or her challenge; the existence of this alternative procedure forecloses extraordinary relief from this court.  See Hicks v. Commissioner of Correction, 425 Mass. 1014, 1014-1015 (1997).  We addressed the substantive claims raised by the defendant in this case under G. L. c. 211, § 3, because the proper procedure had not been clearly established and the single justice reserved and reported the case to this Court.  See Goodwin, 458 Mass. at 14-15, quoting Martin v. Commonwealth, 451 Mass. 113, 119 (2008) (“[w]here the single justice has, in [her] discretion, reserved and reported the case to the full court, we grant full appellate review of the issues reported”).

3.  Questions two and three.  Questions two and three ask whether a transferee probationer is entitled to actual notice of mandatory GPS monitoring pursuant to § 47 from the sentencing judge, and whether mandatory GPS monitoring for crimes committed as a minor constitutes cruel and unusual punishment, where the minor was convicted as an adult in another jurisdiction.  Because we have concluded that the defendant is not subject to mandatory GPS monitoring in Massachusetts under the compact, these questions are moot, and we decline to answer them.

4.  Question four.  The fourth question asks “[w]hether the [commissioner’s] Policy on the Issuance of Travel Permits [(travel policy)] is ultra vires; and, if not, whether the application of that policy to the petitioner violated his right to interstate travel.”  We examine this question in the context of the circumstances of this case.  As earlier noted, at sentencing, the judge authorized the Connecticut probation department to add any other conditions it deemed appropriate.  It is a general condition of probation in Connecticut that a probationer may not leave the State without permission from a probation officer.[16]  When probation was transferred to Massachusetts, the defendant remained subject to this probation condition that he not leave the State without his probation officer’s permission.

Under ICAOS Rule 4.101, supra at 40, a receiving State (here, Massachusetts) “shall supervise an offender transferred under the [compact] in a manner . . . consistent with the supervision of other similar offenders sentenced in the receiving state.”  Therefore, with respect to granting permission for interstate travel, the Massachusetts probation department must treat a transferred probationer as it would a probationer sentenced in Massachusetts.  The commissioner has given effect to that condition by applying a policy that regulates the exercise of discretion to grant travel permits.  The travel policy issued on January 11, 2012, by the then acting commissioner treats all probationers who are under supervision for sex offenses and all probationers with a special condition of GPS monitoring the same, whether transferred or not:  the probation department shall not authorize the issuance of travel permits to them.[17]  The only way they can obtain a travel permit is to request their sentencing judge or, where that judge is unavailable, another judge in that trial court department, to order the issuance of a travel permit.  For a transferred probationer, that means filing a motion to modify the conditions of probation in the defendant’s criminal case in the sending State.  The defendant sought such relief when he moved to modify the conditions of his probation, but that part of the request was not granted by the judge in his order of April 3, 2014.  Nothing bars the defendant from again seeking such relief in Connecticut, which retains jurisdiction over the defendant.  Such relief may not be sought in Massachusetts.

The defendant contends that the commissioner, by issuing a policy that prohibits certain categories of probationers from being issued a travel permit by a probation officer, has imposed an additional special condition forbidding interstate travel that is not mandated by law and, therefore, is ultra vires.  We disagree for two reasons.  First, the general condition of probation imposed on the defendant in Connecticut provided that he could not “leave the State of Connecticut without permission from the Probation Officer.”  This condition does not appear to prohibit a probation department from issuing a travel policy governing the grant or denial of permission for out-of-State travel.  Thus, the application of the policy in Massachusetts is not inconsistent with the condition imposed in Connecticut.  Second, in the letter from the commissioner to the defendant, the commissioner stated that he “remain[ed] unconvinced that [the defendant] presents a viable justification to make an exception to the [t]ravel [p]olicy in [the defendant’s] case,” which indicates that the commissioner retained the discretion to make an exception from his travel policy where the circumstances warranted.[18]

The defendant further argues that the travel restriction applied by the Massachusetts probation department violates his right to interstate travel.[19]  Where the travel restriction was imposed as a condition of probation by the sending State (here, Connecticut) and was not an additional condition imposed by the receiving State, we conclude that the appropriate forum for such a constitutional claim is Connecticut, where it may be combined with the defendant’s nonconstitutional claims for modification of this probation condition, and where the court, in its discretion, may avoid the constitutional question by modifying the condition.  Therefore, we decline to answer the fourth reported question; the appropriate forum to answer this question is a court in the sending State, Connecticut.

Conclusion.  In summary, we conclude that probationers whose supervision is transferred to Massachusetts pursuant to the compact may challenge a special condition of probation that was added by Massachusetts through a declaratory judgment action in a Massachusetts court, where they may claim that the additional special condition is not mandated by law or is unconstitutional.  We also conclude that the Massachusetts probation department may not add mandatory GPS monitoring as a special condition of probation for this probationer because it is not required by G. L. c. 265, § 47.  Finally, we conclude that the travel restriction applied by the Massachusetts probation department to the defendant was not an additional condition of probation, and that the appropriate forum to challenge the constitutionality of the application of that condition is a Connecticut court, where it may be combined with the defendant’s nonconstitutional claims for modification of this probation condition.  We remand this matter to the single justice for further proceedings consistent with this opinion.

So ordered.

Full-text Opinions

At the evidentiary hearing in this case, the defendant called one witness and submitted several affidavits.  As noted, the Commonwealth chose not to call any witnesses and submitted no affidavits in support of its position opposing the allowance of a new trial.  See Mass. R. Crim. P. 30 (c) (3) (“parties opposing a motion may file and serve affidavits where appropriate in support of their respective positions”).  Following the hearing, the judge weighed all of the evidence before him, and based his decision on the affidavits of the defendant and his plea counsel, as well as on the context in which the defendant had pleaded guilty.  It was not error for the judge to rely on the affidavits in granting the defendant’s motion for a new trial, where, as here, those affidavits provide a sufficient factual basis to support the ruling.  See Commonwealth v. Stewart, 383 Mass. at 259; Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 395 (2012) (evidentiary hearing may not be necessary “if the substantial issue raised is solely a question of law, or if the facts are undisputed in the record”).

Order vacating guilty plea

and granting new trial

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-1483                                       Appeals Court

N-TEK CONSTRUCTION SERVICES, INC.  vs.  HARTFORD FIRE INSURANCE COMPANY.

No. 14-P-1483.

Essex.     November 5, 2015. – March 14, 2016.

Present:  Agnes, Sullivan, & Blake, JJ.

Public Works, Payment bond.  Surety.  Notice.  Bond, Public works, Construction contract bond.  Contract, Public works, Construction contract, Bond, Surety.

Civil action commenced in the Superior Court Department on November 18, 2010.

After transfer within the Superior Court Department, the case was heard by Timothy Q. Feeley, J.

Edward J. Quinlan for the plaintiff.

John W. DiNicola, II, for the defendant.

AGNES, J.  In this case we address the notice provision contained in G. L. c. 149, § 29, as amended by St. 1972, c. 774, § 5 (§ 29),[1] in the context of a $ 23.29 million publicly funded project to repair a bridge in Gloucester (project).  In particular, we decide whether the electronic mail message (e-mail) notice given by the claimant, N-Tek Construction Services, Inc. (N-Tek), to the general contractor, SPS New England, Inc. (SPS), satisfied § 29.  N-Tek contends that the Superior Court judge, who tried this case without a jury, erred in concluding that the e-mail sent to SPS by N-Tek’s principal failed to satisfy the requirements of § 29.  For the reasons that follow, we affirm.

SPS, the general contractor, posted a payment bond from a surety, Hartford Fire Insurance Company (Hartford).  N-Tek filed the underlying action, seeking recovery against SPS’s bond pursuant to G. L. c. 149, § 29, based on its claim that it had not been fully paid for its work furnished to a subcontractor, Seaway Coatings, Inc. (Seaway).  N-Tek sought to reach and apply the payment bond funds to satisfy outstanding invoices.  Hartford denied liability.  After a bench trial, the judge found that N-Tek did not provide sufficient written notice of its bond claim to SPS as required by § 29, and ordered judgment to enter for Hartford.  On appeal, N-Tek argues that the judge misinterpreted § 29 by imposing an added requirement that the notice “include and communicate an intent to assert a claim against the [g]eneral [c]ontractor’s” bond, based on Federal cases construing the Miller Act, 40 U.S.C. §§ 3131-3134 (2002), the Federal analogue to § 29.[2]

Facts.  We summarize the facts found by the judge, supplemented by undisputed parts of the record.

1.  Project.  On August 14, 2008, the Massachusetts Highway Department (department)[3] entered into a contract with SPS to perform repairs to the A. Andrew Piatt Bridge in Gloucester.  Built in 1950, the four-lane deck bridge spans the Annisquam River and is a primary access way to the Cape Ann area.  In turn, SPS engaged Seaway, a Maryland-based painting subcontractor, to install a platform to be used by all trades, and to clean and paint the bridge.  Seaway and SPS executed two subcontracts, which had a total combined value of $ 5,765,360.  At SPS’s request, Seaway posted separate payment and performance bonds,[4] which were issued by its surety, First Sealord Surety, Inc. (First Sealord).[5]

2.  N-Tek’s work for Seaway.  In 2008, Joseph P. Toffoloni formed N-Tek, a Massachusetts firm, to provide construction management consultant (or project manager) services to out-of-State subcontractors, such as Seaway, whose business operations in the Commonwealth did not support having their employees act as an on-site manager or superintendent.  Toffoloni was N-Tek’s president and sole employee.[6]  On October 6, 2008, Toffoloni sent a proposal to Seaway (October 6 proposal), offering his services as a project manager on the project.[7]  For his compensation, Toffoloni proposed, in part, a base fee of $ 150 per hour, “plus reasonable expenses.”

N-Tek and Seaway did not enter into or otherwise bind themselves to a written contract of hire.  Nor did Seaway agree, in any writing, to the terms and conditions of N-Tek’s October 6 proposal.[8]  Seaway engaged Toffoloni, albeit informally, to serve as a project manager, and fully paid N-Tek’s first twenty-one invoices, for the period between October of 2008 and September 13, 2009.  Those invoices represented $ 190,821 in total billings.

3.  Toffoloni’s e-mail to SPS regarding unpaid work.  Seaway’s painting work, scheduled to start in May of 2009, stalled for various reasons, including the fact that certain preparatory steps, such as demolition and concrete repairs, had not been completed.  Seaway experienced financial difficulties, initially in the summer of 2010 and thereafter, causing it to fall behind on payments to its suppliers and others.  In the run-up to Seaway’s financial troubles, Toffoloni sent the following e-mail on March 16, 2010 (March 16 e-mail) to Robert A. Naftoly, SPS’s vice-president of project management:

“Hello Bob.  Enclosed is the January 15, 2010 Statement to Seaway Coatings, Inc./Mr. Athanasios Koussouris for services through that date by N-Tek Construction Services, Inc. for the [project] that are still unpaid.

“Please give me a call at [telephone number] when you have a chance.  Thanks.  Joe[.]”

An attached statement listed ten invoices, totaling $ 77,166.72, unpaid by Seaway.[9]  As of March 16, 2010, Naftoly “had never heard of N-Tek” but he “clearly” understood that Toffoloni was connected in some way to N-Tek.  Naftoly did not understand Toffoloni to be making a claim against SPS or Hartford.[10]

On October 20, 2010, SPS informed Seaway that it was henceforth barred from performing further work on the project, per an order of the department.  SPS hired a substitute firm, which soon abandoned the project.  Three other firms came and went before SPS engaged a fifth (and final) firm that managed to substantially complete the cleaning and painting work.

Prior proceedings.  Pretrial rulings pared down what had been a sprawling multiparty case to the present dispute between N-Tek and Hartford.  At trial, N-Tek called Toffoloni as its only witness.  Naftoly testified on behalf of Hartford.  Summarizing its case, N-Tek asserted that SPS had been put on notice by the March 16 e-mail that N-Tek had not been paid for its work performed for Seaway.  Relying on evidence of a “business relationship” between Seaway and N-Tek and the unpaid invoices, N-Tek’s trial counsel argued in closing that his client was entitled, under § 29, to reach and apply the SPS bond funds to pay down the invoices in question.

On the other hand, Hartford argued that no legally valid, enforceable contract existed between Seaway and N-Tek; that N-Tek failed to provide legally sufficient written notice to SPS; and that N-Tek fell well short of proving any legitimate damages recoverable under § 29.

Standard of review.  In reviewing a judgment entered after a bench trial, we review the trial judge’s factual findings, based on the “clearly erroneous” standard of Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996).  City Rentals, LLC v. BBC Co., 79 Mass. 559, 560 (2011).  If a trial judge’s ultimate finding involves the interpretation of a statute, as is the case here, our review is de novo.[11]  See Sutton Corp. v. Metropolitan Dist. Commn., 423 Mass. 200, 209-210 (1996).

Analysis.  Section 29, which has long-standing antecedents,^[12] is a remedial law intended to protect laborers and material suppliers from nonpayment by contractors and subcontractors involved in the construction or repair of public buildings and public works.  See Otis Elevator Co. v. Long, 238 Mass. 257, 264 (1921); Peters v. Hartford Acc. & Indem. Co., 377 Mass. 863, 865 (1979); Costa v. Brait Builders Corp., 463 Mass. 65, 72 (2012) (§ 29 also “benefits” general public).

1.  General principles.  “Suretyship may be defined as a contractual relation whereby one person engages to be answerable for the debt or default of another.”  Stearns, Law of Suretyship § 1.1, at 1 (5th ed. 1951).  “The fact that this [payment] bond [issued by Hartford] is required by statute does nothing to alter the settled principles of contract and suretyship law.”  Peerless Ins. Co. v. South Boston Storage & Warehouse, Inc., 397 Mass. 325, 327 (1986).  See Wood v. Tuohy, 67 Mass. App. Ct. 335, 341 (2006); C & I Steel, LLC v. Travelers Cas. & Sur. Co. of America, 70 Mass. App. Ct. 653, 657 (2007).  A statutory payment bond is a contract, although its terms and conditions are largely defined by statute, in this case, § 29.   A surety’s obligation under a statutory payment bond corresponds to that of its principal.  John W. Egan Co. v. Major Constr. Mgmt. Corp., 46 Mass. App. Ct. 643, 646 (1999).  In essence, a surety is liable to make good any default of its principal within the bond’s penal sum.  See George H. Sampson Co. v. Commonwealth, 202 Mass. 326, 339 (1909); Di Fruscio v. New Amsterdam Cas. Co., 353 Mass. 360, 364 (1967).

A person who has furnished labor or materials for public works and who has not been fully paid has a right under § 29 to seek recovery under the bond of the general contractor in satisfaction of amounts justly due.  Section 29 attaches three conditions to this right.  A claimant must be eligible to claim protection under § 29; give written notice to the general contractor of its claim; and commence an action in Superior Court within the time limitations established by the statute.

2.  Section 29.  a.  Eligible claimant.  The Legislature has defined those persons who are entitled to § 29′s protections, including “[a]ny claimant having a contractual relationship with a subcontractor performing labor . . . pursuant to a contract with the general contractor but no contractual relationship with the contractor principal furnishing the [payment] bond . . . .”  § 29, third par.[13]  N-Tek says it fits this category.  We agree.

N-Tek had a contractual relationship, albeit implied by law, with Seaway but not with the “contractor principal” (SPS) furnishing the bond.  The record evidence warranted a finding that Seaway and N-Tek, by their largely unambiguous conduct, had established a business arrangement, or course of dealing, to the extent that N-Tek agreed to provide managerial services for Seaway for the project and, in return, Seaway agreed to pay for N-Tek’s services, described by written invoices, which were often submitted by N-Tek to Seaway on a biweekly basis.  While it is unnecessary for us to be any more precise about the nature of the relationship between N-Tek and Seaway, N-Tek’s invoices are remarkable for the lack of meaningful information,[14] much less any detail, respecting the particular work for which N-Tek sought payment.

b.  Written notice.  A claimant, like N-Tek here, who has dealt exclusively with a subcontractor (Seaway) and has had no contractual relationship with the general contractor (SPS) must give written notice of its claim to the general contractor.  Specifically, pursuant to § 29, N-Tek had to give “written notice to the contractor principal [i.e., SPS] within sixty-five days after the day on which the claimant [N-Tek] last performed the labor” on the public works project, “stating with substantial accuracy the amount claimed, [and] the name of the party [Seaway] for whom such labor was performed.”  N-Tek argues that the written notice need not “contain any express or explicit statements that the claimant is seeking payment from the general contractor or that a claim against its bond will be pursued.”  While it is true that the statutory “notice requirement can be satisfied by a brief letter” from the supplier or laborer to the general contractor, it is essential nonetheless that the notice “make unambiguous the claimed rights of all.”  Barboza v. Aetna Cas. & Sur. Co., 18 Mass. App. Ct. 323, 328 (1984).[15]

N-Tek’s argument disregards the purpose of the notice requirement and judicial decisions interpreting § 29 and the Federal Miller Act’s virtually identical language.  See Bastianelli v. National Union Fire Ins. Co., 36 Mass. App. Ct. 367, 369-370 (1994).  See also United States ex rel. J.A. Edwards & Co. v. Thompson Constr. Corp., 273 F.2d 873, 875-879 (2d Cir. 1959); United States ex rel. Water Works Supply Corp. v. George Hyman Constr. Co., 131 F.3d 28, 32 (1st Cir. 1997).  Section 29 establishes a firm date — i.e., sixty-fifth day from and after the date when the claimant last furnished labor — after which the general contractor may pay a first-tier subcontractor without fear of such further liability to sub-subcontractors or suppliers who had furnished labor or material to the first-tier subcontractor.  The notice requirement bolsters the legislative policy to protect the general contractor, by requiring the claimant’s writing to serve as a presentation of a claim against the general contractor.  As to this narrow point of law, “courts have consistently, and we think correctly, held that ‘the written notice and accompanying oral statements must inform the general contractor, expressly or impliedly, that the supplier [or, as here, the laborer] is looking to the general contractor for payment so that it plainly appears that the nature and state of the indebtedness was brought home to the general contractor.’”  United States ex rel. Water Works Supply Corp. v. George Hyman Constr. Co., supra at 32, quoting from United States ex rel. Kinlau Sheet Metal Works, Inc. v. Great Am. Ins. Co., 537 F.2d 222, 223 (5th Cir. 1976).

Toffoloni’s March 16 e-mail, when considered in light of all the material surrounding circumstances (as this court did in Bastianelli v. National Union Fire Ins. Co., supra at 370), fails to state, explicitly or implicitly, that he (or his firm) was making a claim against SPS for services rendered on the project, and thus fails to satisfy § 29.[16]  We think that the strict notice provision of § 29 was intended to relieve the general contractor of the need to engage in guesswork as to whether a claim was being made against it or the statutory bond.[17]  We do not believe that the Legislature “intended to have it held that such little expenditure of effort is too much diligence to require” of a claimant, sub-subcontractor or supplier, to preserve its rights against the general contractor’s payment bond.  United States ex rel. J.A. Edwards & Co. v. Thompson Constr. Corp., 273 F.2d at 879 (quotation omitted).[18]

Section 29′s written notice requirement constitutes a “condition precedent” under Massachusetts law — i.e., an event that must occur before the principal or its surety is obligated to perform[19] — that N-Tek had to meet to be able to enforce its statutory (§ 29) rights.[20]  See International Bus. Machs. Corp. v. Quinn Bros. Elec. Co., 321 Mass. 16, 17 (1947); Armco Drainage & Metal Prods., Inc. v. Framingham, 332 Mass. 129, 132 (1954).  If a creditor fails to meet a condition precedent to the principal’s liability, the surety is not obligated to perform.  Stearns, Law of Suretyship § 7.18, at 225.  “It ill serves the statutory scheme, however, and would stimulate litigation, if we obscured the relatively simple statutory prerequisites upon which all parties in public contracting, including the sureties, presumably rely.”  Barboza v. Aetna Cas. & Sur. Co., 18 Mass. App. Ct. at 328.

Conclusion.  A fair reading of § 29, in light of its history, the legislative aims advanced by the statute, settled contract and suretyship principles not displaced or altered by § 29, and governing Massachusetts case law — bolstered by Federal court decisions interpreting the Miller Act’s parallel text that is virtually identical to the provisions of § 29 in question here — leads us to conclude that the judge was correct in ruling that N-Tek did not give SPS sufficient written notice of its bond claim to satisfy § 29.

Judgment affirmed.

Full-text Opinions

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

14-P-1926                                       Appeals Court

COMMONWEALTH  vs.  AMY B. BELTRANDI.

No. 14-P-1926.

Hampshire.     December 14, 2015. – March 14, 2016.

Present:  Grainger, Hanlon, & Agnes, JJ.

Motor Vehicle, Operating under the influence, Operation.  Practice, Criminal, Required finding, Argument by prosecutor, Witness.  Evidence, Absence of witness.  Witness.

Complaint received and sworn to in the Eastern Hampshire Division of the District Court Department on May 29, 2012.

The case was tried before John M. Payne, Jr., J.

Tara B. Ganguly for the defendant.

Cynthia M. Von Flatern, Assistant District Attorney, for the Commonwealth.

AGNES, J.  In this appeal from her conviction of operating a motor vehicle on a public way while under the influence of alcohol in violation of G. L. c. 90, § 24(1)(a)(1), the defendant raises two issues.  First, she argues that the Commonwealth presented insufficient evidence to permit the jury to find beyond a reasonable doubt that she operated the vehicle. While the question is a close one, we conclude that on the basis of the circumstantial evidence presented by the Commonwealth, the jury were entitled to draw a reasonable inference that the defendant was the operator of the vehicle.  Second, she argues that the prosecutor’s closing argument was improper because in the absence of a missing witness instruction, the prosecutor should not have urged the jury to draw an adverse inference against the defendant due to the absence of a potential witness.  We agree with the defendant that the prosecutor’s closing argument was improper, and conclude that it constituted prejudicial error.  Accordingly, we reverse.

Background.  Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found that at approximately 2:30 A.M. on May 29, 2012, a resident of Ware awoke to see a truck (later identified as a 2006 Toyota Tacoma pickup truck) stopped on Route 9 (Belchertown Road).  Two-thirds of the vehicle was in the road and about one-third was over the fog line.  The resident placed a telephone call to 911.  Officer Scott Underwood of the Ware police department arrived soon thereafter.  Initially, he saw the truck in the westbound lane, with its engine running and its lights out.  He noticed that the windows were fogged up.  He did not see any movement inside the vehicle.  While standing at the vehicle’s back bumper, he saw “a female party in the driver’s seat, male party in the passenger seat.”[1] Officer Underwood rapped on the fogged up window on the driver’s side several times before the defendant, the person seated in the driver’s seat, rolled down the window.  The defendant and her companion were only partially clothed.  The parties dressed at the officer’s request.  The defendant stated that she and her companion were on their way home from a bar which she identified correctly by name, but incorrectly located in Chicopee.  The defendant told Officer Underwood that she and her companion had been engaged in “sexual activity.”  Based on his observations of the defendant while she was seated inside the vehicle and later after she exited and performed several field tests, Officer Underwood formed the opinion that she was intoxicated and placed her under arrest.  Officer Underwood also testified that the vehicle was registered to the defendant’s husband, who was not the male companion in the vehicle.[2]

At trial, the defendant did not dispute that the vehicle had been operated on a public way, or that she was intoxicated at the time of her arrest, but instead challenged whether the Commonwealth proved that she had operated the vehicle.[3]  The defendant’s companion was living in California at the time of trial, and was not available as a witness for either party.

Discussion.  1.  Standard of review.  We review the denial of a motion for a required finding of not guilty by examining the evidence, along with permissible inferences from that evidence, in the light most favorable to the Commonwealth and determine whether a reasonable jury could find each essential element of the crime beyond a reasonable doubt.  Commonwealth v. Penn, 472 Mass. 610, 618-619 (2015).  “To survive a motion for a required finding, it is not essential that the inferences drawn are necessary inferences.  It is enough that from the evidence presented a jury could, within reason and without speculation, draw them.”  Commonwealth v. Gonzalez, 47 Mass. App. Ct. 255, 257 (1999).  This principle is no less true in a case like this in which proof of an essential element of the offense (operation) rests entirely on circumstantial evidence.  See Commonwealth v. Platt, 440 Mass. 396, 401 (2003).

2.  Sufficiency of the evidence to prove operation.  “An individual ‘operates’ a motor vehicle within the meaning of     G. L. c. 90, § 24, ‘when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.’”  Commonwealth v. Ginnetti, 400 Mass. 181, 183 (1987), quoting from Commonwealth v. Uski, 263 Mass. 22, 24 (1928).  See Commonwealth v. Eckert, 431 Mass. 591, 599 (2000) (intentional act of starting the vehicle constitutes operation);  Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 320 (1994) (intoxicated driver asleep in vehicle with key in ignition and engine running is operating the vehicle); Commonwealth v. McGillivary, 78 Mass. App. Ct. 644, 645-647 (2011) (placing the key in the ignition and turning the electricity on without starting the engine is operation).

Direct evidence that the defendant operated the vehicle is not required.  Commonwealth v. Woods, 414 Mass. 343, 354-355, cert. denied, 510 U.S. 815 (1993).  ”A web of convincing proof can be made up of inferences that are probable, not necessary.”  Commonwealth v. Hilton, 398 Mass. 63, 67 (1986), quoting from Commonwealth v. Best, 381 Mass. 472, 483 (1980).[4]  However, an inference from circumstantial evidence that a person was the operator of a vehicle is not reasonable if the fact finder must resort to “speculation, conjecture or surmise.”  Commonwealth v. Shea, 324 Mass. 710, 714 (1949).

The defendant contends that this case is like those cases in which the presence of a second person in the vehicle renders the inference that the defendant was the operator unreasonable.  For example, in Commonwealth v. Mullen, 3 Mass. App. Ct. 25 (1975), the defendant and a companion were traveling north on a four-lane highway in Hingham in an automobile that suddenly veered across the center dividing line, crossed the two lanes on the other side, and struck a concrete fence.  The defendant, who was intoxicated, was found about ten to fifteen feet outside the vehicle and over the side of an embankment, slightly to the rear of the right rear wheel.  The defendant’s companion did not survive the crash.  He was “in a U-shape, his right foot being out under the passenger door, his left foot under the engine; his head and shoulders were up in the framework of the car, his head being against the floor.”  Id. at 26.  The defendant admitted that he owned the automobile, and that he had driven it earlier in the evening.  He denied knowing the victim even though it turned out they were roommates.  The defendant also told the police that he had been walking along the side of the road and had been struck by an automobile.  The Commonwealth argued that the defendant’s ownership of the vehicle and his admission that he had driven it earlier that evening, coupled with the evidence of his consciousness of guilt, permitted the jury to infer that he had operated the vehicle at the time of the crash.  We rejected this argument, noting that the evidence regarding the position of the defendant and the victim after the crash suggested a contrary inference (that the defendant was ejected from the passenger seat), and concluded that in such circumstances, neither inference could be established beyond a reasonable doubt.  Id. at 27.  See Commonwealth v. Leonard, 401 Mass. 470 (1988).[5]

Here, unlike in Mullen and Leonard, the presence of a second person did not render the inference that the defendant was the operator of the vehicle unreasonable.  This is not a case in which the evidence limited the jury to “a choice between, at the very most, equal inferences.”  Commonwealth v. Mullen, 3 Mass. App. Ct. at 27, citing Commonwealth v. Fancy, 349 Mass. 196, 201 (1965).  In the present case, Officer Underwood testified that when he approached the vehicle the defendant was in the driver’s seat.[6]  The defendant was severely intoxicated, but her companion was not.[7]  “The manner in which the automobile was parked, half on the street and half on the sidewalk, was evidence that it may have been driven by a driver under the influence of alcohol.”  Commonwealth v. Hilton, 398 Mass. at 68.  As we said in Commonwealth v. Latney, 44 Mass. App. Ct. 423, 426 (1998), the jury here were not required to make a “leap of conjecture” to infer the defendant was the operator of the vehicle.

As noted above, the question whether the jury could reasonably infer that the defendant was the operator of the vehicle is a close one.  However, while conflicting inferences as to who was the driver of the truck were possible, where, as in this case, an inference that the defendant was the operator of the vehicle is both possible and reasonable, our responsibility to view the evidence in the light most favorable to the Commonwealth requires that the jury be permitted to “determine where the truth lies.”  Commonwealth v. Platt, 440 Mass. at 401 (citation omitted).  See Commonwealth v. Merry, 453 Mass. 653, 660-663.  The defendant’s motion for a required finding of not guilty was properly denied.[8]

3.  Prosecutor’s closing argument.  The evidence at trial was that the defendant’s companion on the night she was arrested had moved to California and that she had not had any contact with him since a day or two following her arrest.  The record does not indicate that the Commonwealth requested that the judge give a missing witness instruction prior to the closing arguments.[9]  In his closing argument, the prosecutor asked rhetorically, “[I]sn’t it convenient” that the witness was not present, and “[w]hat else would he know that we may reasonably infer from the evidence that came in?”  At the close of this argument, defense counsel objected, pointing out that the prosecutor was aware that the witness in question was in California and was not available.  The prosecutor informed the judge that he was not asking for a missing witness instruction, but contended that he was still entitled to argue that the jury should draw an adverse inference against the defendant due to the absence of the witness.  Defense counsel requested a curative instruction.  The judge effectively overruled the defendant’s objection by indicating that he would not give a missing witness instruction, and would not give a curative instruction.

“The missing witness argument and the missing witness instruction are interrelated.”  Mass. G. Evid. § 1111 note (a), at 402 (2015).  The argument is “a powerful accusation — that a party is withholding evidence that would be unfavorable — and that is why we regulate it closely and require judges to assess very carefully whether to give the instruction and to permit the argument in a given case.”  Commonwealth v. Saletino, 449 Mass. 657, 673 (2007).  For this reason, the preferred practice is for counsel and the trial judge to discuss the matter at the charge conference and prior to closing arguments.  Commonwealth v. Williams, 450 Mass. 894, 907 (2008).  Accord Commonwealth v. Pena, 455 Mass. 1, 16-17 (2009).  See also Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134-135 (1986); Commonwealth v. Smith, 49 Mass. App. Ct. 827, 831 n.6 (2000).

This case is analogous to Commonwealth v. Pena, supra, where defense counsel asked the jury, in the absence of a missing witness instruction by the trial judge, “Where is that expert?” and argued that the prosecutor’s failure to call an expert witness suggested that such witness could not rebut the defense expert’s testimony.  455 Mass. at 15-16.  In this case, the prosecutor’s rhetorical questions improperly invited the jury to speculate as to the content of evidence not produced at trial.  See Saletino, 449 Mass. at 672 n.22.  See also Mass. G. Evid. § 1113(b)(3) & note (2015) (guidelines for closing arguments).

We apply the prejudicial error standard.  “An error is not prejudicial if it did not influence the jury, or had but slight effect; however, if we cannot find with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, then it is prejudicial.”  Commonwealth v. Misquina, 82 Mass. App. Ct. 204, 207 (2012) (quotation and citations omitted).  In view of our assessment that this was a close case in which the jury were presented with circumstantial evidence from which two conflicting inferences could be drawn — one consistent with the defendant’s guilt and one consistent with her innocence — we cannot say that the prosecutor’s improper argument did not have a substantial effect on the outcome.

For the foregoing reasons, the judgment is reversed and the verdict is set aside.

So ordered.

Full-text Opinions

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

14-P-1459                                       Appeals Court

COMMONWEALTH  vs.  KEITH HENDERSON (NO. 1).

No. 14-P-1459.

Hampden.     October 5, 2015. – March 15, 2016.

Present:  Vuono, Carhart, & Sullivan, JJ.

Motor Vehicle, Operation, Leaving scene of accident.  Evidence, Intent.  Intent.  Practice, Criminal, Instructions to jury, Duplicative convictions, Double jeopardy.  Constitutional Law, Double jeopardy.

Indictments found and returned in the Superior Court Department on April 9, 2013.

The case was tried before Edward J. McDonough, J.

Leslie H. Powers for the defendant.
Alyson C. Yorlano, Assistant District Attorney, for the Commonwealth.

     SULLIVAN, J.  Following a trial on multiple indictments, a jury convicted the defendant, Keith Henderson, on two indictments charging leaving the scene of an accident causing personal injury in violation of G. L. c. 90, § 24(2)(a1/2)(1), and on three indictments charging leaving the scene of an accident causing property damage in violation of G. L. c. 90, § 24(2)(a).[1]  On appeal, the defendant maintains that (1) the judge erred in failing to instruct that the Commonwealth must prove that he had the specific intent to leave the scene of the accident, and (2) he was convicted of multiple counts of leaving the scene of an accident in violation of his right to be free from double jeopardy.[2]  We conclude that the jury were properly instructed, but that, on the facts presented, the convictions were duplicative.  We therefore vacate the judgment on one of the counts of leaving the scene of an accident causing personal injury and the judgments on all but one of the counts of leaving the scene of an accident causing property damage.  We affirm the remaining judgments.

Background.  The evidence pertinent to the appeal may be summarized as follows.  Sean Kydd’s car was taken from him at gunpoint on March 5, 2013, by a man he was unable to identify.  Kydd filed a police report that day, reporting the car stolen.  Nine days later on March 14, 2013, Kydd spotted his car in Springfield and called the police.  Two police officers in marked police cruisers met Kydd, and all three drove separately to where the car was located.

As the caravan passed Kydd’s stolen car, one police officer made eye contact with the driver, who was later identified as the defendant.  ”[T]he [car] took off” in the opposite direction.  The officers followed in pursuit.  The defendant “continued accelerating” and “pull[ed] away at a good distance.”  The defendant approached a red light at the corner of Wilbraham Road and Alden Street and, instead of stopping, kept going.  The car driven by the defendant “sideswipe[d]” a vehicle that was stopped at the red light, crossed the intersection, and crashed a “split second” later into two other vehicles in the oncoming lane of traffic.  The officers estimated the defendant’s speed at the time of the accident as fifty-five to sixty and sixty-five to seventy miles per hour in a thirty-five miles per hour zone.  Three cars were damaged, and two occupants of different vehicles were injured.

The defendant got out of the car, stumbled, and tried to run across the street toward a gas station on the corner.  The defendant ran for approximately twenty feet before he was apprehended by police.

1.  Jury instructions.  At trial, the defendant argued that he had not fled the scene; rather, he merely stumbled as he got out of the car.  Citing Commonwealth v. Liebenow, 470 Mass. 151, 157 (2014), the defendant, for the first time on appeal, now attempts to recast his defense, stating that the judge should have instructed the jury that the defendant must have the subjective intent to flee the scene.[3]  The defendant’s claim of error rests on his contention that specific intent to leave the scene is an element of the offense.  The argument conflates knowledge and intent, which are not wholly coterminous.  See Commonwealth v. Sama, 411 Mass. 293, 298 (1991).  Knowledge is the operative element under the statute.

“To prove the charge of leaving the scene of [property damage], the Commonwealth must prove beyond a reasonable doubt that (1) the defendant operated a motor vehicle (2) on a public way (3) and collided with or caused injury in some other way to another vehicle or to property; (4) the defendant knew that he had collided with or caused injury in some other way to that other vehicle or property; and (5) after such collision or injury, the defendant did not stop and make known his name, address, and the registration number of his motor vehicle.  G. L. c. 90, § 24(2)(a).”^[4]  Commonwealth v. Platt, 440 Mass. 396, 400 n.5 (2003).  The elements of leaving the scene of an accident causing personal injury are similar, except that the Commonwealth must prove injury to the person rather than damage to property.  See G. L. c. 90, § 24(2)(a1/2)(1).^[5]  See also Commonwealth v. Muir, 84 Mass. App. Ct. 635, 638-639 (2013).  The knowledge required under each statute is virtually identical — the defendant’s knowledge of the collision or the defendant’s knowledge of the injury or damage.  The judge so instructed the jury.

The defendant construes one sentence in Platt to require proof that the defendant “knowingly le[ft] the scene of an accident involving property damage [or personal injury].”  Platt, supra at 401.  From that sentence, the defendant derives a requirement of subjective or specific intent to leave the scene.  The statute contains no requirement that the defendant form the specific intent to leave the scene of an accident, and the oft-used, though imprecise, shorthand description of the offense contained in Platt does not add one.

Although there was at one time a statutory requirement that a driver knowingly leave the scene, the statute has been amended to remove the element of knowledge with respect to leaving the scene of the accident.  In 1909, the statute read, in pertinent part:  ”who[ever] knowingly goes away without stopping and making himself known after causing injury to any person or property . . . shall be punished . . .” (emphasis supplied).  St. 1909, c. 534, § 22.  The 1909 statute was interpreted to require “a consciousness not only of the fact that [the defendant] is going away, but of the further fact that he has not made himself known.”  Commonwealth v. Horsfall, 213 Mass. 232, 237 (1913).  The statute was amended in 1916 to require knowledge of the collision or injury, but to remove the word “knowingly” from the provision regarding leaving the scene of an accident.  See St. 1916, c. 290.

This amendment was purposeful.  In Horsfall, the court said, “It would have been simple for the Legislature to have made the act of going away by the driver of an automobile without making himself known after injuring person or property a crime, and this would have been accomplished by omitting the word ‘knowingly’ from the statute.”  Horsfall, supra at 236-237.  Clearly, the Legislature accepted this invitation in 1916.

Since 1924, this amendment has been consistently construed to mean that “the act [of leaving the scene], irrespective of intent, was made criminal.”  Commonwealth v. Coleman, 252 Mass. 241, 244 (1925).  See Commonwealth v. Nurmi, 250 Mass. 128, 131 (1924) (“If [the defendant] had knowledge of such collision, it was his duty under the statute not only to stop, but also to make known his name, residence, and number of his motor vehicle”).  See also Commonwealth v. McMenimon, 295 Mass. 467, 468-470 (1936) (describing the change by the Legislature after the Horsfall case).  The judge’s instructions were correct.

2.  Duplicative convictions.  The defendant maintains that he could be properly convicted of and sentenced on only one count of leaving the scene of personal injury and one count of leaving the scene of property damage.[6]  He contends that his multiple convictions are duplicative and violate his right under the Federal constitution to be free from double jeopardy.  See Commonwealth v. Constantino, 443 Mass. 521, 523-526 (2005).

“The double jeopardy clause of the Fifth Amendment to the United States Constitution protects against three distinct abuses:  [1] a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense.”  Id. at 523 (quotation omitted).  Here, as in Constantino, “[w]e are concerned with the third category of protection.”  Ibid.  Because this issue was not raised at trial, we review for a substantial risk of a miscarriage of justice, mindful of the fact that a duplicative conviction may constitute such a risk.  Id. at 526.

The statute is silent on this subject; hence we must determine “whether the Legislature, in enacting the statute, intended to punish the leaving of the scene of an accident resulting in [personal injury or property damage] separately for each victim [or item of property] or intended that a single penalty attach to the unlawful course of conduct.”  Id. at 523.  In Constantino the Supreme Judicial Court held that a defendant who had left the scene of an accident causing multiple deaths could be convicted of only a single count of leaving the scene.  We deal here with the same statute and amendment that the Supreme Judicial Court was called upon to interpret in Constantino.  See G. L. c. 90, § 24(2); St. 1991, c. 460.  In Constantino the court interpreted the statute with respect to the crime of leaving the scene of an accident causing personal injury resulting in death, whereas here we confront personal injury and property damage.  See G. L. c. 90, § 24(2)(a1/2)(1); G. L. c. 90, § 24(2)(a).  The operative words of the statute, as amended in 1991, are virtually identical with respect to leaving the scene, whether it be the scene of an accident causing death, personal injury, or property damage, and the rationale of Constantino is fully applicable.

“[T]he proper ‘unit of prosecution’ under the statute is the act of leaving the scene of the accident, not the number of accident victims [or items of property damaged].”  Constantino, supra at 524.  This is because the statute is “directed at punishing the defendant for conduct offensive to society, as distinct from punishing the defendant for the effect of that conduct on particular victims.”  Commonwealth v. Traylor, 472 Mass. 260, 268-269 (2015) (quotation omitted).  See Constantino, supra.  The Commonwealth maintains that multiple convictions are appropriate because, unlike the single car accident in Constantino, here there were three collisions involving damage to three cars and injury to two passengers.  Only one penalty may be assessed under each statute for a single act of leaving the scene, however, because “the proscribed act is scene related, not victim related.”  Ibid., and cases cited.[7]

Our analysis does not end here, however.  Multiple convictions for the same offense may stand where the convictions are predicated on separate and distinct acts, here the act of leaving the scene.  See Commonwealth v. Vick, 454 Mass. 418, 435-436 (2009).  The Commonwealth argues that the defendant left the scene of an accident twice, once when he sideswiped the first car, and a second time when he ran away after colliding with the other two cars.  If so, at least two of the convictions of leaving the scene of property damage would be upheld, as would both of the convictions of leaving the scene of an accident causing personal injury.

The evidence at trial was insufficient to permit a finding of separate and distinct instances of leaving the scene of an accident.[8]  There was a near instantaneous collision with three cars, and flight from that single scene.  In light of the testimony of the witnesses that the two collisions occurred within a split second, leaving the defendant with no opportunity to stop after the first collision, the two incidents are “so closely related in fact as to constitute in substance but a single crime.”  Commonwealth v. Vick, supra at 435 (quotation omitted).  The defendant’s “actions occurred ‘in a single stream of conduct’ that was ‘governed by a single criminal design.’”  Commonwealth v. Suero, 465 Mass. 215, 220 (2013), quoting from Commonwealth v. Howze, 58 Mass. App. Ct. 147, 153 (2003).  Contrast Commonwealth v. Maldonado, 429 Mass. 502, 509-510 (1999).  “Accordingly, we conclude that convicting the defendant of [multiple] violations, rather than one, . . . was error and gives rise to a substantial risk of a miscarriage of justice.”  Constantino, 443 Mass. at 526.

Conclusion.  The judgment on one of the indictments for leaving the scene of an accident causing personal injury is vacated, the verdict on that indictment is set aside, and that indictment is dismissed.[9]  The judgments on two of the indictments for leaving the scene of an accident causing property damage are vacated, the verdicts on those indictments are set aside, and those indictments are dismissed.[10]  The remaining judgments are affirmed.

So ordered.

Full-text Opinions

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

SJC-11976

KYL V. MYRICK  vs.  HARVARD UNIVERSITY.

March 15, 2016.

Supreme Judicial Court, Superintendence of inferior courts. Appeals Court.  Practice, Civil, Stay of proceedings.

     Kyl V. Myrick appeals from a judgment of a single justice of this court that denied relief from a ruling of a single justice of the Appeals Court in a case that is currently pending in the Appeals Court.  We affirm.

The case originated in the Superior Court when Myrick filed a complaint against Harvard University alleging employment discrimination.  A judge in the Superior Court dismissed the complaint on Harvard’s motion and denied Myrick’s subsequent attempts to reinstate the case.  Myrick appealed to the Appeals Court and, while his appeal was pending, moved to stay the appeal so that he could file a new complaint and seek additional discovery in the underlying action in the Superior Court.  A single justice of the Appeals Court declined to stay the appeal.  Myrick then requested that a single justice of this court grant relief from the Appeals Court single justice’s order by either staying the appeal in the Appeals Court or remanding the entire matter to the Superior Court.

On the day this appeal was entered in the full court, Myrick filed a two-page memorandum and an appendix of material from the record in the county court.  It appears that he filed these things in an attempt to comply with S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001).  That rule does not apply here, however.  It applies to cases in which a single justice of this court “denies relief from an interlocutory ruling in the trial court.”  Id.  Here the single justice denied relief from an order of a single justice of the Appeals Court in an appeal that is pending there.

That said, we have reviewed Myrick’s submission and the entire record that was before the single justice in the county court, and it is apparent that the single justice neither erred nor abused her discretion by denying Myrick’s request for relief.  Once the Appeals Court single justice denied Myrick’s request for a stay, Myrick could have sought review of that ruling from a panel of the Appeals Court, see Kordis v. Appeals Court, 434 Mass. 662 (2001), but did not do so.  It was unnecessary, and it would have been especially inappropriate on this record, for a single justice of this court to intervene at that juncture in what was a routine Appeals Court matter.  The question whether to stay an appeal in the Appeals Court is quintessentially something for the Appeals Court and its single justices to decide and, barring truly exceptional circumstances which are not present here, not something that requires the extraordinary intervention of this court.

Judgment affirmed.

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

Kyl V. Myrick, 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-08921

COMMONWEALTH  vs.  DEMOND CHATMAN.

Suffolk.     December 11, 2015. – March 16, 2016.

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

Homicide.  Practice, Criminal, New trial, Competency to stand trial, Capital case.  Evidence, Competency.  Due Process of Law, Competency to stand trial.

Indictment found and returned in the Superior Court Department on June 5, 2000.

After review by this court, 466 Mass. 327 (2013), a motion for a new trial was heard by Barbara J. Rouse, J.

Edward L. Hayden for the defendant.

Cailin M. Campbell, Assistant District Attorney (Mark T. Lee, Assistant District Attorney, with her) for the Commonwealth.

CORDY, J.  On February 10, 2000, police responded to a telephone call made by the defendant, Demond Chatman, reporting that his mother, the victim, had been shot.  The defendant directed officers to the home of the victim’s aunt, where the defendant was living.  The police found the victim’s body in the aunt’s bedroom.

On January 24, 2002, a jury returned a guilty verdict against the defendant on the charge of murder in the first degree.  The defendant appealed, and, in May, 2008, during the pendency of that appeal, the defendant filed a motion for a new trial on the ground that he had not been competent to stand trial.  The motion judge, who was also the trial judge, denied the motion in October, 2011, after a nonevidentiary hearing.  The defendant appealed.

In September, 2013, we reversed the denial of the motion for a new trial and remanded the case for an evidentiary hearing consistent with a newly established burden of proof on defendants who, postverdict, seek a new trial on the basis of incompetency when the issue was not raised or considered at the time of, or prior to, trial.  See Commonwealth v. Chatman, 466 Mass. 327, 335-336, 339 (2013).  In November, 2014, after four days of evidentiary hearings, the motion judge again denied the defendant’s motion.

Now before us for the second time, the defendant combines his direct appeal from his conviction with his challenge to the denial of his motion for a new trial.[1]  He also requests relief pursuant to our authority under G. L. c. 278, § 33E.  As we explain below, our review of the entire record discloses no basis on which to grant relief.  We therefore affirm the defendant’s conviction and the denial of his motion for a new trial.

1.  Background.  a.  The trial.  We summarize the essential facts presented at trial, most of which are set forth in our decision in Chatman, 466 Mass. at 328-330.  The defendant had a hostile relationship with his mother, the victim.  On February 10, 2000, at 2:30 P.M., the defendant telephoned 911 to report that his mother had been shot.  Earlier that day, between 11 A.M. and noon, the defendant had told the aunt that he was going to “work out” at Franklin Park.  He also had asked her where she kept the mop and bucket, which he wanted to use to clean his room on his return.

The Commonwealth presented a circumstantial case against the defendant at trial.  A pathologist testified that, based on the rigidity of the victim’s body at the time it was found, death occurred between 8:30 A.M. and 12:30 P.M.  There was evidence that the body had been moved to the aunt’s bedroom, where the police first viewed it, including deoxyribonucleic acid (DNA) testing that showed bloodstains belonging to the victim in the hallway, the bathroom, and the kitchen; in the defendant’s bedroom, the defendant had left a bloody fingerprint.  Further DNA testing indicated that blood found on the defendant’s clothing and sneakers matched that of the victim.  Bloody footprints were found in the bathroom, and the evidence indicated that washcloths had been used to soak up some of the blood.

The defendant sought to rebut the evidence offered by the Commonwealth, and unsuccessfully presented an alibi defense tending to show that he was at Franklin Park at the time of the victim’s death.

b.  The defendant’s competency at trial.  The issue of competency to stand trial was first raised six years after the trial in the defendant’s May, 2008, motion for a new trial.  Chatman, 466 Mass. at 327-328, 335-336.

At the evidentiary hearing in 2014, the defendant called ten witnesses in support of his position:  Ray Walden, Dr. Mark Hanson,[2] and Patricia Hilliard,[3] who treated the defendant during his early teens and into his high school years; trial counsel, John Bonistalli; Sharon Church, who was co-counsel at the trial; and Doctors Marion Smith, Joseph Grillo,[4] Charles Drebing, Robert H. Joss, and Naomi Leavitt, mental health professionals who were responsible for either treating or diagnosing the defendant after trial.[5]

Trial counsel Bonistalli testified that he began representing the defendant in 2000, and that he settled on an alibi defense based on his meetings with the defendant and his review of the police records.  The defendant insisted that he did not commit the crime, so Bonistalli’s reasonable doubt defense relied on the defendant’s statements and his assistance in reviewing the facts to establish an alibi.  The defendant did not report any of his mental health history to Bonistalli, and Bonistalli did not notice anything to suggest that the defendant was impaired by some mental illness.  Bonistalli testified that he had the impression that he was communicating with the defendant, and that the defendant understood what Bonistalli was talking about and was aware of the charges pending against him and the significance of the trial.  Bonistalli did not recall any significant participation from the defendant during the trial itself.

Co-counsel Church’s testimony related to about a two-week period, as she joined the defense team just a week before trial.  Church testified that, in conversations with Bonistalli, the defendant insisted he did not commit the crime, but was instead at Franklin Park.  The defendant also went on “tangents.”  During trial, the defendant sat silently and listened.  Church concluded that the defendant did not actively assist in the preparation of the case, but did not offer an opinion as to the defendant’s competency to do so.[6]

Also admitted in evidence were reports written by licensed medical health counsellors Darren Sandler, who, on January 25 and 26, the two days following the defendant’s conviction, interviewed the defendant at Massachusetts Correctional Institution (M.C.I.), Concord; and Carrie Holowecki, who evaluated the defendant at M.C.I., Souza-Baranowski on January 30.  Sandler indicated that the defendant presented as “calm,” “cooperative,” and “euthymic,” while Holowecki reported that, though “nervous,” the defendant was “alert,” “oriented,” and “logical,” and had “good eye contact.”  Sandler reported that the defendant had many legal questions regarding his appeal and was in “shock” over his life sentence, remarking that it was “unbelievable.”  Neither noted any concern over any mental health issues until February 13, 2002, when Holowecki, in her second evaluation of the defendant, recorded that the defendant was experiencing “some paranoia” but remained “alert,” “oriented,” and “cooperative.”

Dr. Smith, a psychiatrist, testified that she evaluated the defendant on February 20, 2002.  Smith eventually diagnosed the defendant with schizoaffective disorder, and she was concerned that the symptoms with which the defendant presented existed prior to his incarceration.  Smith did not offer an opinion as to the defendant’s competency at the time of trial.

The defendant hired Dr. Joss, a forensic psychologist, in connection with the motion for a new trial.  Joss testified that he met with the defendant, in connection with his initial evaluation, on three occasions, in March and December, 2005, and February, 2006, and interviewed the defendant by telephone in January, 2006.  He also reviewed records of the case dating back to the 1970s.  Aside from the defendant, Joss conducted two other telephone interviews:  first with Ray Walden, an independent clinical social worker who had diagnosed the defendant with paranoid personality disorder at the age of twelve or thirteen;[7] and second with Dr. Prudence Baxter, a forensic psychiatrist with whom Bonistalli had spoken briefly about the possibility of a criminal responsibility defense prior to trial.[8]  In addition, Joss consulted with Dr. Drebing, who, at Joss’s request, had conducted a neuropsychological evaluation of the defendant in 2005 and had diagnosed him with a “psychotic spectrum disorder, such as possibly a delusional disorder, schizoaffective disorder, or a psychosis not otherwise specifi[ed].”[9]

Dr. Joss, who had submitted an affidavit in 2008 based on the foregoing evidence, further testified that his opinion at the time of the affidavit and at the time of the hearing, was that the defendant “lacked competence to stand trial” at the time of trial and had problems “in his ability to rationally understand the proceedings and . . . [to] rationally . . . assist counsel.”  He also admitted that, in reaching this conclusion, he had not spoken to Bonistalli or Church.  Joss eventually spoke to Bonistalli for fifteen minutes on the telephone on March 31, 2014, the day before testifying at the evidentiary hearing.  Joss was the only mental health expert to offer an opinion regarding whether the defendant was competent at the relevant time.

The period between the May, 2008, filing of the motion for a new trial and October, 2011, when the motion judge first denied the motion without a hearing, is noteworthy in that the defendant was evaluated twice, pursuant to court orders, for competency to participate in the motion hearing.  Dr. Leavitt testified that she conducted both evaluations, the first of which was prompted by and occurred after the defendant had an outburst in court.  Both evaluations focused specifically on competency as to the motion (and not the trial) period.  Leavitt, in her initial evaluation, which was conducted to determine whether the defendant was competent to recommence the proceedings on the first motion for a new trial, presented an equivocal opinion as to the defendant’s competency:  the defendant had an adequate understanding of the proceedings and ability to make reasoned decisions; however, his ability to work meaningfully with counsel was compromised due to his lack of focus and social impediments.  Specifically, the defendant did not trust appellate counsel.  Therefore, Leavitt concluded, the defendant was competent to participate in the motion hearing only so long as he did not have to testify or appear in court.

Because the first evaluation did not result in a firm opinion as to the defendant’s competency, Leavitt conducted a second evaluation in December, 2010, after the defendant had begun taking medication.  In that evaluation, Leavitt opined that the defendant was competent to participate in the motion hearing.  The defendant’s first motion for a new trial was denied, and we reversed for an evidentiary hearing.  Chatman, 466 Mass. at 339.

In denying the defendant’s motion for a new trial on remand, the judge discredited Dr. Joss’s opinion at the evidentiary hearing as having no factual underpinnings.   Although the judge acknowledged that the defendant suffered from a mental illness, which she concluded “waxed and waned at various times throughout his life,” she determined that “[a] defendant may have a mental illness or condition[ and] still be competent to stand trial.”

The defendant claims it was an abuse of discretion to deny the motion for a new trial and to discredit Joss’s testimony.  We disagree.

2.  Discussion.  The only argument the defendant raises in this combined appeal from his conviction and from the denial of his motion for a new trial is that the motion for a new trial was wrongly denied.

“The trial judge . . . may grant a new trial at any time if it appears that justice may not have been done.”  Mass. R. Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001).  The burden rests on the moving party to prove the facts on which he or she relies in support of the motion.  See Chatman, 466 Mass. at 333.  The judge may rely on her knowledge of the trial in reaching a conclusion regarding the motion for a new trial.  Commonwealth v. Grace, 370 Mass. 746, 752-753 (1976).

“When this court reviews a defendant’s appeal from the denial of a motion for a new trial in conjunction with his direct appeal from an underlying conviction of murder . . ., we review both under G. L. c. 278, § 33E” (citation omitted).  Commonwealth v. Jackson, 471 Mass. 262, 266 (2015).  That is to say, “we review the denial of that motion to determine if the judge committed an abuse of discretion or other error of law and, if so, whether such error created a substantial likelihood of a miscarriage of justice.”  Chatman, 466 Mass. at 333.  An abuse of discretion exists when the motion judge made “a clear error of judgment in weighing the factors relevant to the decision, . . . such that the decision falls outside the range of reasonable alternatives” (citation and quotations omitted).  L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).  Our review “extends special deference to the action of a motion judge who was also the trial judge.”  Commonwealth v. Waters, 410 Mass. 224, 231 (1991), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

a.  Competency.  Under both the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, “[i]t has long been accepted that a person whose mental condition is such that he [or she] lacks the capacity to understand the nature and object of the proceedings against him [or her], to consult with counsel, and to assist in preparing his [or her] defense may not be subjected to a trial” (citation omitted).  Commonwealth v. Brown, 449 Mass. 747, 759 (2007).  See Medina v. California, 505 U.S. 437, 439 (1992) (“It is well established that the Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial”).

With the present case, we have our first opportunity to review a motion judge’s interpretation of the Chatman test.  Therein, we articulated a new framework appropriate for evaluating a defendant’s competency postverdict where the issue had not been raised at trial.  Chatman, supra at 335-336.  Like the traditional competency test, the hallmark of a postverdict competency inquiry is the defendant’s “functional abilities,” Commonwealth v. Goodreau, 442 Mass. 341, 350 (2004), as opposed to “the presence or absence of any particular psychiatric diagnosis.”  Id.  To determine if a criminal defendant is competent, we look to (1) whether the defendant has “sufficient present ability to consult with his [or her counsel] with a reasonable degree of rational understanding,” and (2) whether he or she has “a rational as well as factual understanding of the proceedings” (citation omitted).  Commonwealth v. Bynum Harris, 468 Mass. 429, 443 (2014).

The newly articulated test differs from the traditional competency proceeding not in substance but in burden of proof.  If the issue is raised at trial, the Commonwealth would bear the burden of establishing competence by a preponderance of the evidence.  See Commonwealth v. Hilton, 450 Mass. 173, 179 (2007).  The postverdict test, on the other hand, requires that the defendant establish “by a preponderance of the evidence that the Commonwealth would not have prevailed had the issue been raised at trial,” Chatman, 466 Mass. at 336, meaning that the defendant bears the burden of establishing that, had the issue been raised before or during trial, the Commonwealth could not have proved either the first or the second prong of the competency test.  See id.  See also Bynum Harris, supra at 443.  The defendant, therefore, need not make a showing that he was incompetent; instead, the defendant may satisfy his or her burden by showing “that the weight of the evidence of competence and the weight of the evidence of incompetence are in equipoise.”  Chatman, supra at 336, n.7.

Because a postverdict motion requires a retrospective determination of the defendant’s competency, “the weighing process must necessarily place greater emphasis on evidence derived from knowledge contemporaneous with the trial.”  United States v. Makris, 535 F.2d 899, 907 (5th Cir. 1976), cert. denied, 430 U.S. 954 (1977).  For that reason, when the postverdict motion is heard by the same judge as presided over the trial, the “judge’s determination of competency is entitled to substantial deference ‘because the judge had the opportunity to . . . evaluate the defendant personally.’”  Brown, 449 Mass. at 759, quoting Commonwealth v. Prater, 420 Mass. 569, 574 (1995).  The presence or absence of a mental illness is informative on the question of competency, but not dispositive.  See Commonwealth v. Robbins, 431 Mass. 442, 448 (2000).

i.  Competency — first prong.  In determining whether the defendant had a present ability to consult with his lawyer with a degree of rational understanding, we look to whether the defendant has the capacity to communicate and cooperate effectively.  See Commonwealth v. Crowley, 393 Mass. 393, 399 (1984).  Specifically, we consider whether a “defendant’s mental . . . condition . . . prevented counsel from developing a defense [and] . . . whether the defendant understood [counsel’s] explanations of that defense or [counsel’s] assessment of the risks of trial.”  Goodreau, 442 Mass. at 353.

In addition to testimony at the evidentiary hearing, the record is replete with evidence regarding the undisputed proposition that the defendant has, since childhood, suffered from a mental illness.  The testimony, affidavits, assessments, and evaluations paint a picture of an individual whose mental issues have affected his ability to socialize and acclimate to his community.

However, while the defendant’s mental illness undisputedly has existed since his youth, the symptoms he shows and his interactions with people have varied, or, as the motion judge put it, “waxed and waned.”  At times it is clear to those around him that the defendant is suffering from a mental illness, while at other times he presents as calm, engaged, and communicative.  Moreover, there is no evidence tending to equate the defendant’s mental illness with an inability to communicate.  In fact, the testimony indicates the opposite:  doctors and mental health professionals alike have indicated that, whether or not the defendant was on medication at the time, and whether or not the defendant disclosed his history of mental illness, he was able to communicate and exhibited an understanding of his condition.  In any event, competency and the defendant’s ability to communicate and cooperate is a time period-specific inquiry, and our analysis must start with what little evidence we have about the defendant’s mental state around the trial period.

We first consider the testimony of trial counsel, as it “may . . . provide relevant evidence as to the defendant’s ability to understand the nature of the case against him and his ability to assist in the defense, as well as how the defendant helped shape the defense, if at all.”  Chatman, 466 Mass. at 339.  Because of the time-determinative nature of our inquiry, trial counsel’s testimony is critical in either substantiating or contradicting a postverdict competency challenge.

Bonistalli testified that he had met with the defendant on several occasions and had spoken with him about the police reports, about what occurred on the day when the defendant’s mother was killed, and about the factual pieces required to proffer an alibi defense.[10]  He saw no indications that the defendant’s condition resulted in an inability to communicate or cooperate with him as trial counsel.

The defendant presents Dr. Joss’s testimony to establish that the defendant could not communicate with Bonistalli rationally.  Joss pointed to several of the defendant’s statements (made years after the trial period) to establish that the defendant did not trust Bonistalli.  For instance, the defendant indicated he believed Bonistalli may have been working with the prosecutor, and therefore could not be trusted.

This testimony presents several problems.  First, the only time-relevant statements tending to show that the defendant’s paranoia caused him not to trust his trial attorney are those of the defendant.  In the past, we have indicated that a motion judge is entitled, in the competency context, to discredit a defendant’s own self-serving statements.  See Goodreau, 442 Mass. at 351.

Second, and more importantly, other parts of the record belie the defendant’s assertions, and therefore Dr. Joss’s testimony.  Dr. Leavitt included in her report that the defendant did not have trust issues with his trial attorney, and that his trial attorney gave him “the information straight up.”  Joss even noted in his evaluation the defendant’s statement that “[he] trusted [Bonistalli] to do his job.”

Third, the purported link between the defendant’s illness and his inability to communicate with trial counsel is contradicted by the findings of mental health experts before and immediately after trial.  Both Walden and Hilliard, who met with the defendant in his youth, reported that the defendant’s mental illness had not impeded their communication or the defendant’s comprehension of their interactions.  Reports written by licensed medical health counselors at M.C.I., Concord and M.C.I., Souza-Baranowski days and weeks after the defendant’s arrest indicated that the defendant was able to understood and discuss the ramifications of the guilty verdict against him.

Fourth, Bonistalli’s testimony and the judge’s viewing of the defendant’s behavior at trial contradict the defendant’s statements.  See Commonwealth v. DeMinico, 408 Mass. 230, 236 (1990), quoting Commonwealth v. Hill, 375 Mass. 50, 58 (1978) (“defendant’s demeanor at trial and response to questioning by the judge . . . [are] relevant to a decision on the merits of the competency issue”).  Because the trial judge never raised the issue of competency, we can infer that the defendant’s behavior during trial was not so outside the ordinary as to raise a doubt about his competency.[11]

The defendant contends that a symptom of his mental illness was that the illness operated to conceal itself from Bonistalli at trial, which alone indicates a lack of competency.  That is, the argument goes, that it would have been irrational to conceal a history of mental health issues from counsel when facing charges of murder in the first degree; therefore, the defendant must not rationally have chosen to conceal his mental health history but instead did so because of his mental illness.

This argument finds no support in the record.  The defendant has, at various times, either disclosed his mental health history — or chosen not to disclose it — to multiple individuals, both those whom he purportedly trusted and those he had just met.  For instance, the defendant never told Hilliard about his prior mental health issues, but disclosed them to Dr. Leavitt.[12]  Bonistalli was never made aware of the defendant’s diagnoses or treatment, but the defendant related them to appellate counsel.  We therefore cannot infer from the record that the decision not to disclose a history of mental illness to his trial counsel was made due to a symptom of such illness as opposed to a rational decision by the defendant.  Moreover, the fact that a defendant may not advance the most helpful defense does not necessarily equate with incompetence to stand trial.  See Commonwealth v. Blackstone, 19 Mass. App. Ct. 209, 211 (1985) (“defendant’s refusal to admit to his own mental illness and to employ it in his defense is not necessarily a manifestation of the mental illness itself.  The world is full of people who do not own up to their limitations, often with remarkable success”).

Even if the motion judge were to have credited Joss’s testimony that the defendant had a mental illness that was in full effect during the trial period, this alone would not be sufficient to persuade us that the defendant has met his burden.  One can both have a mental disease or deficiency and still be competent to stand trial; the two are not mutually exclusive.  See Robbins, 431 Mass. at 448 (“The defendant’s argument confuses the presence of mental illness with lack of competence to stand trial”).  The same is true about a defendant with a low intelligence quotient.  See Prater, 420 Mass. at 574-575.  We agree with the motion judge that the evidence tends to show that the defendant cooperated and communicated with his attorney, highlighted by the fact that, according to Bonistalli, testifying as to his contemporaneous interactions with the defendant, the defendant “insisted” that he did not kill the victim and that Bonistalli pursue an alibi defense.  It was therefore not an abuse of discretion for the judge to conclude that the defendant did not meet his burden on the first prong of the competency test.

ii.  Competency — second prong.  We are likewise unpersuaded by the defendant’s assertion that he did not have a rational understanding of the proceedings against him.  This second prong considers whether the defendant understood the crime of which he or she “was accused, who the important people [were] in the court room and what their roles [were], [and] what [the consequences would be] if he [or she] [was] found guilty.”  Bynum Harris, 468 Mass. at 443, quoting Vuthy Seng v. Commonwealth, 445 Mass. 536, 546 (2005), S.C., 456 Mass. 490 (2010).  The defendant would not sufficiently understand the proceedings “if his mental condition preclude[d] him from perceiving accurately, interpreting, and/or responding appropriately to the world around him.”  Lafferty v. Cook, 949 F.2d 1546, 1551 (10th Cir. 1991).  The test is flexible enough to accommodate a defendant with a mental illness, as it “is satisfied upon a showing that the defendant possesse[d] at least a ‘modicum’ of rational understanding.”  Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 610, 613, n.4 (2012), quoting Blackstone, 19 Mass. App. Ct. at 211.

The only evidence tending to establish the defendant’s level of understanding of the proceedings at trial, aside from Bonistalli’s testimony, comes from Dr. Joss’s interviews that occurred three and four years after the defendant’s conviction.  Joss put a great emphasis on the defendant’s purported misunderstanding of the key players.  For instance, the defendant thought Bonistalli had a “cop look,” and may therefore have been working with the prosecutor.  The defendant reported that he believed that Bonistalli, who is white, would have an advantage at trial over the prosecutor, who was Asian.  The defendant told Joss that the judge was always on the prosecutor’s side, and that the judge “was making sad faces.”  The defendant also indicated that the prosecutor had used his peremptory strikes to take homosexuals and white women off the jury.

However, although purportedly concluding that the defendant’s illness precluded his having a rational understanding of the proceedings, Joss’s testimony supports the opposite conclusion — that, in fact, the defendant did have a rational understanding of the crime for which he was on trial, the important people involved in his prosecution and defense, as well as the consequences of a verdict against him.  Joss admitted on cross-examination that the defendant could follow what was going on at the trial in 2002:  he was aware that he was on trial for murder; understood his attorney to be working on his behalf; appreciated that the prosecutor was working against him; knew it was the judge’s role to be fair; and recognized that the jury would reach the final verdict.  And, looking back on the trial, the defendant knew that there had been witnesses who testified against him and that he had been found guilty.  As to the comments about the ethnicities of Bonistalli and the prosecutor, Joss testified that such statements were “consistent with [the defendant’s] history of racism,” but not irrational.  In sum, Joss’s testimony regarding his findings presents a defendant who may have misconceived portions of the proceedings due to preexisting prejudicial stereotypes, but not one who could not rationally understand those proceedings.

Joss’s testimony on cross-examination also undermined many of his findings.  Dr. Joss either admitted that he had no basis to corroborate or substantiate many of the defendant’s purportedly irrational claims because he did not conduct independent research, or conceded that the statements could indeed have been rational.  For instance, Joss’s credibility as to the rationality of the defendant’s statements is dubious in that he could not comment on the prosecution’s use of peremptory strikes during jury selection because he had not spoken to anyone present; he was unable to determine whether there was any basis for the defendant’s statement that Bonistalli had a “cop look” because Joss had only spoken to Bonistalli on the telephone and had never met him; and Joss admitted that he has, in the past, told defense attorneys that they should not speak to the prosecutor in front of the defendant if the defendant has shown signs of paranoia, indicating that it is not unusual for a defendant to worry about his attorney working with the prosecution.  Taken together, these admissions indicate that the defendant did indeed have some underlying misperceptions about people based on their appearances, but that those misconceptions alone were not enough to show that his rational understanding of the proceedings was compromised.  It is more important in establishing a “modicum” of rational understanding that the defendant understands the role and function of the key players and court mechanisms than it is that he put aside any lingering bigotry.

We infer no support for Dr. Joss’s opinion about the defendant’s competency at the time of trial from Dr. Leavitt’s first evaluation of the defendant for the motion for a new trial proceeding.  We acknowledged in Chatman that Leavitt “made a diagnosis of long-standing mental illness virtually identical to that of Joss.”  Chatman, 466 Mass. at 339.  However, we note a distinct difference between Leavitt’s findings and those of Joss that affect our analysis of the defendant’s competence at the time of trial:  Leavitt was reviewing the defendant’s competency for a motion for a new trial hearing, and her findings were therefore related to appellate counsel, as opposed to trial counsel.  In reaching her conclusion that the defendant could not contribute to his defense, Leavitt noted that the defendant had difficulties believing his appellate attorney.  Leavitt also included in her evaluation that the defendant did not report any trust difficulties with his trial attorney, and that his trial attorney gave him “the information straight up.”  We cannot conclude from this evaluation that the defendant’s issues with appellate counsel reflect similar problems during the course of trial with trial counsel, or whether any later mental issues could be due to the fact that, according to the defendant, his “world came to an end” when he was sentenced.

The defendant seems to argue that the Commonwealth’s failure to proffer evidence at the motion for a new trial indicates that its position is tenuous.  To be clear, the Commonwealth bears no burden to establish that the defendant was competent at the time of trial, and may rest on impeachment of the defendant’s arguments if it so chooses.  However, should the Commonwealth eschew the opportunity to present argument or offer the opinion of an expert, it does so at its own peril.

We discern no error in the motion judge’s conclusion that the defendant did not meet his burden, or in her decision to discredit Dr. Joss’s opinion.  As noted, Joss, prior to reaching his conclusion that the defendant was incompetent during the critical time period leading up to and encompassing trial, did not meet or consult with Bonistalli or Church.  See Goodreau, 442 Mass. at 354 (“When weighing the adequacy of the materials submitted in support of a motion for a new trial, the judge may take into account the suspicious failure to provide pertinent information from an expected and available source”).  It was not unreasonable for the motion judge to conclude that, while Joss is no doubt qualified to opine regarding the defendant’s mental illness and about his competence at the time of his interviews, it was problematic that he reached the conclusion that the defendant was unable meaningfully to consult with his attorney or rationally to understand the proceedings at trial without speaking to the only people who could offer insight into that time period, aside from the defendant.

Because we agree that the defendant did not establish by a preponderance of the evidence that the Commonwealth would not have been able to meet its burden at a competency proceeding had the issue been raised prior to or at trial, we affirm the denial of the defendant’s motion for a new trial.  As this was the only issue raised by the defendant in his appeal from his convictions and from the denial of his motion for a new trial, we will proceed to our G. L. c. 278, § 33E, review.

b.  Review under G. L. c. 278, § 33E.  We have conducted a thorough review of the record, in accordance with G. L. c. 278, § 33E, and have determined that no basis exists which would require us to remand the case, order a new trial, or to set aside or reduce the jury’s verdict of murder in the first degree.  We therefore decline to exercise our authority.  The judgment and the order denying the motion for a new trial are affirmed.

So ordered.

Full-text Opinions

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

15-P-101                                        Appeals Court

KILNAPP ENTERPRISES, INC.[1]  vs.  MASSACHUSETTS STATE AUTOMOBILE DEALERS ASSOCIATION & others.[2]

No. 15-P-101.

Suffolk.     December 7, 2015. – March 17, 2016.

Present:  Rubin, Maldonado, & Massing, JJ.

Libel and Slander.  Actionable Tort.  Practice, Civil, Motion to dismiss.

Civil action commenced in the Superior Court Department on March 10, 2014.

A motion to dismiss was heard by Judith Fabricant, J.

Travis J. Jacobs for the plaintiff.

Alan D. Rose, Sr., for Fisher & Phillips LLP & another.

James F. Radke for Massachusetts State Automobile Dealers Association.

RUBIN, J.  This is an action for defamation brought by Kilnapp Enterprises, Inc., doing business as Real Clean (Real Clean), which describes itself as “a broker for automobile detailing and reconditioning between service providers and automobile dealerships.”[3]  Real Clean brought this action against the Massachusetts State Automobile Dealers Association (MSADA) for its published statements concerning an investigation by the United States Department of Labor (DOL) into the practices of automobile detailing “brokers” including Real Clean.  The complaint asserts not only a claim for defamation, but includes several other related counts that will be described more fully below.  It names as a defendant not only MSADA but the author of the published statements, Attorney Joseph Ambash, and his law firm, Fisher & Phillips LLP.  The defendants brought a motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), which was allowed.  Real Clean appeals.

Because the materials properly considered by the judge in the Superior Court demonstrate that Real Clean will be unable to prove that the defendants’ statements were materially false under the applicable standard, which requires demonstration that actionable statements have been made with knowledge of their falsity or in reckless disregard of their truth or falsity, we affirm the judgment dismissing all of Real Clean’s claims.

Background.  Our review of the allowance of a motion to dismiss is de novo.  Glovsky v. Roche Bros. Supermkts., Inc., 469 Mass. 752, 754 (2014).  For purposes of reviewing the allowance of a motion to dismiss we must, of course, take all the allegations in the plaintiff’s operative complaint, here the amended and verified complaint filed on May 7, 2014, as true.  Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).  While the original complaint has seven documents appended to it, including a January 2, 2014, letter from Real Clean’s counsel, Stephen Gordon, to the executive vice-president of MSADA (Gordon letter) and Ambash’s response thereto, the amended complaint replaced the Gordon letter with an affidavit from Real Clean’s general manager.  Nevertheless, the amended complaint still appended the response to the Gordon letter and contained allegations referring to the existence of the Gordon letter.  A reviewing court, like the judge initially evaluating and ruling upon a motion to dismiss, is entitled to consider materials not appended to the complaint, but referenced or relied upon in the complaint.  See Harhen v. Brown, 431 Mass. 838, 839-840 (2000), citing Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996); Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n.4 (2004).  We recite the facts as alleged in the complaint, supplemented by that factual information contained in these filings that were properly considered by the trial judge.

Real Clean describes itself as a company that “connect[s]” automobile dealerships with “independent contractors” who provide automobile detailing and reconditioning services (service providers).  According to the complaint, Real Clean has formed relationships with hundreds or thousands of automobile dealerships in Massachusetts and New England and is one of the largest brokers of automobile detailing and reconditioning services in the Commonwealth.  In 2013, the DOL was conducting an investigation into potential violations of wage and hour laws by Real Clean and others in the automobile detailing business.  The complaint and other documents properly before the judge indicate that with respect to Real Clean, the DOL investigation focused on two relationships.  First, it focused on whether Real Clean in fact employed the individuals nominally employed by the service providers (detailers), and thus owed them overtime pay.  Second, it focused on whether the relationships Real Clean brokered — between the dealerships and the service providers — in fact amounted to employment relationships between the dealerships and the detailers, and whether therefore the dealerships owed the detailers overtime pay.  According to the Gordon letter, the DOL “advised Real Clean that the DOL felt that Real Clean owed many individual detailers overtime pay.”  According to the complaint, “[the DOL] has attempted to tie the dealership[s] to the independent contractors . . . who employ the detailing and reconditioning personnel.”  In April, 2013, Real Clean met with the DOL and provided materials purporting to refute the DOL’s conclusions.  Between the time of those meetings and at least the time of the Gordon letter, no enforcement actions were brought against Real Clean.  Nonetheless, according to the Gordon letter, the DOL did visit automobile dealers, including some who are Real Clean customers, and assessed amounts claimed to be due from the dealers, some of whom paid the assessment.

In November, 2013, MSADA published a newsletter featuring an article written by defendant Ambash entitled “Alert:  DOL Cracking Down on Dealers Using Real Clean.”  A nearly identical article appeared on MSADA’s Web site on November 13, 2013, where it was entitled “DEALER ALERT: U.S. DEPARTMENT OF LABOR CONTINUES AUDITS OF AND ACTIONS AGAINST DEALERS AND REAL CLEAN.”  The text of the first of these articles is as follows:

“We have learned that the Department of Labor has approached several dealers in the past couple of weeks and demanded payment of overtime for detailers working for Real Clean (Kilnapp Enterprises).  The amounts range from a few thousand to tens of thousands of dollars.  In some cases the DOL has asked the dealer to pay ‘liquidated damages,’ meaning a penalty equal to the total back pay owed.

“This is a serious situation for dealers who have relationships with Real Clean, and it will only get worse.

“As we have previously reported, the DOL has been visiting dealerships for months, demanding to interview dealership employees and Real Clean employees.  Their primary objective has been to tie the dealerships to Real Clean, in order to claim that the dealership is a ‘joint employer’ of the Real Clean personnel.  After the DOL completes its investigation, which typically also covers [Fair Labor Standards Act] compliance for the dealership employees, the DOL schedules a ‘closing conference’ and demands backpay and overtime it claims is owed both to any dealership employees who were improperly paid, as well as to employees of Real Clean.

“The dealers, of course, do not employ any of the Real Clean employees directly, nor do they supervise or control their work.  Under the brokerage arrangement with Real Clean, the dealer pays a fee directly to Real Clean for detailing or reconditioning each car, and Real Clean is exclusively responsible for paying its employees and contractors.

“The DOL claims that the Real Clean contractors are not independent, but are ‘jointly’ employed by the dealer and either Real Clean or the contractor.  Therefore, the DOL says the dealers are responsible for monitoring their hours and pay, and making sure they are paid minimum wage and overtime.

“When the dealers explain to the DOL that they have no knowledge of or control over the Real Clean personnel, the DOL often threatens them with liquidated damages or legal action if they don’t pay the money, which covers alleged back pay for two years.

“Even if a dealer decides to pay the DOL, that does not relieve the dealer of liability, because each day Real Clean employees are not paid overtime or minimum wage constitutes a new violation.  The DOL, therefore, can come back again and demand more back pay unless something has changed.

“What Should Dealers Do?

“If they feel that the DOL has no legitimate reason demanding money from them for work done by Real Clean employees, dealers have a variety of options to consider, including:

“•   Real Clean has indemnification agreements with some dealers.  It has indicated that it will consider offering indemnification agreements to all of its dealers.  Real Clean is asking the dealers not to agree to pay the DOL, but instead to let Real Clean’s lawyers defend them.  Real Clean has indicated through its lawyer that it will not reimburse any dealers who choose to pay the DOL directly.

“•   Therefore, dealers have the option of not paying the DOL and permitting Real Clean to defend any lawsuits against them.  However, any such offer by Real Clean will not stop the DOL from coming back, or other government agencies like the Attorney General from getting involved.  It may also lead to time-consuming litigation.  Furthermore, being defended by Real Clean’s attorneys might give the impression that there is, in fact, a close relationship between the dealer and Real Clean.  And the dealer may have a real dispute with Real Clean, so its lawyer would have a conflict representing the dealer in any event.

“•   Dealers can pay the DOL and end their relationship with Real Clean if they feel the risks are too great.  In connection with that, they can demand reimbursement by Real Clean or consider offsetting any amounts paid against monies due to Real Clean.

“•   If a dealer ends its relationship with Real Clean, the dealer can hire detailers directly, and pay them properly as employees of the dealership.  Alternatively, a dealer can engage the services of another outside company to provide detailing services.  Of course, the dealer should take steps to ensure that the new detailing company is complying with all employment laws, including wage-hour.

“•   Dealers can demand that Real Clean guarantee full compliance with all laws by Real Clean and its contractors, and build in appropriate offsets and penalties against Real Clean if there are violations.

“Each of these options requires careful consideration and involves weighing risks and benefits.  The situation is very complicated.  Each dealer should consult with counsel to help determine the best course of action for your dealership.

“Fisher & Phillips will continue to monitor the situation and provide advice and guidance to dealers as requested.  Please contact Joe Ambash at [telephone number].”

The November 13, 2013, version of the article contained a few minor changes.  For instance, the following sentence was added to the end of the second-to-last bullet point: “Even then, there is no assurance that the DOL will not pursue similar claims against other detailing companies.”

Discussion.  Real Clean filed this action on March 10, 2014.  In addition to the defamation count, the complaint also asserted claims for violation of the Lanham Act, 15 U.S.C. §§ 1051 et seq. (2012); violation of G. L. c. 93A; commercial disparagement; and tortious interference with advantageous relations.  Because our conclusions about the defamation claim have bearing on some of the other counts, we turn first to it.

The elements of a claim of defamation are “that the defendant was at fault for the publication of a . . . statement regarding the plaintiff, capable of damaging the plaintiff’s reputation in the community, which either caused economic loss or is actionable without proof of economic loss” (footnote omitted).  White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66 (2004).  See id. at 66 n.4.  The contours of this cause of action have been shaped in large measure by concerns regarding the restrictions that it may impose on freedom of speech.  HipSaver, Inc. v. Kiel, 464 Mass. 517, 523 n.7 (2013) (“[T]he common law of defamation has become infused with principles of the First Amendment to the United States Constitution”).  Several limitations on the scope of a defamation claim bear upon the validity of the plaintiff’s claim.

First, as the parties agree, the statements at issue are actionable only if they are false, and were made when knowingly false or in reckless disregard of their truth or falsity.  This is because they are “conditionally privileged.”  See Retailers Commercial Agency, Inc., petitioner, 342 Mass. 515, 520-522 (1961) (“reports made by a mercantile agency to an interested subscriber [are] conditionally privileged” such that a false report is not actionable unless “made . . . recklessly, without reasonable grounds for believing it was true”).  ”Under Massachusetts law, a publication will be deemed conditionally privileged if the publisher of the statement and the recipient have a common interest in the subject and the statement is ‘reasonably calculated to further or protect that interest.’”  Downey v. Chutehall Constr. Co., 86 Mass. App. Ct. 660, 666 (2014), quoting from Sheehan v. Tobin, 326 Mass. 185, 190-191 (1950).  This privilege, which antedates the constitutionalization of defamation law that began with New York Times Co. v. Sullivan, 376 U.S. 254 (1964), whether constitutionally required or not, is consonant with the protections for freedom of speech contained in the State and Federal Constitutions.

As relevant here, “Massachusetts courts have recognized that a person may possess a conditional privilege to publish defamatory material if the publication is reasonably necessary to the protection or furtherance of a legitimate business interest.”  Bratt v. International Bus. Machs. Corp., 392 Mass. 508, 512-513 (1984).  Thus, in Sheehan, 326 Mass. at 187, the privilege was held applicable to an allegedly false and defamatory statement in an official union magazine sent to all union members asserting that the plaintiffs, two union members, “entered the office of Local No. 25 and brutally assaulted one of the business agents, Francis J. Halloran, a man old enough to be their father.  They in turn preferred charges against the officers of the local.”  The court held that the statement was conditionally privileged because it was “information of general common interest to the members of a labor union [disseminated] by its officers through the medium of the official journal of the union.”  Id. at 191.

Likewise here, a statement published in a trade association newsletter or on a trade association Web site for dissemination to members of the trade association with a common interest in the matter is actionably defamatory only if it is false, and is made when knowingly false or in reckless disregard of its truth or falsity.

Second, where, as here, falsity is a required element of a defamation claim, to be actionable a statement must be “materially” false.  Pan Am Sys., Inc. v. Atlantic N.E. Rails & Ports, Inc., 804 F.3d 59, 66 (1st Cir. 2015).  The question of falsity “overlooks minor inaccuracies and concentrates upon substantial truth. . . .  Put another way, [a] statement is not considered false unless it ‘would have a different effect on the mind of the reader from that which the pleaded truth would have produced.’”  Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516-517 (1991), quoting from Sack, Libel, Slander, and Related Problems 138 (1980).

Third, statements of opinion “that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual” are not actionable.  Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990), quoting from Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988).

Applying these principles, we turn to the statements that Real Clean’s claims were actionably false.

Real Clean asserts that “the crux of the Publications is that a relationship with [Real Clean] is a recipe for ‘serious’ negative consequences which will continue to intensify, and all MSADA members would be wise to sever ties with [Real Clean] and contact Defendants Ambash and Fisher & Phillips in doing so.”  A central contention made by Real Clean is that the publications were misleading because Real Clean was not the only broker of detailing services that was under examination by the DOL.

By its own admission, Real Clean was one of the largest brokers of detailing services to automobile dealerships in Massachusetts.  The Gordon letter states that several dealers who were customers of Real Clean had been sent assessments by the DOL and that some had paid these assessments.  Consistent with this statement, the defendants’ articles asserted that MSADA’s counsel had “learned that the Department of Labor has approached several dealers in the past couple of weeks and demanded payment of overtime for detailers working for Real Clean (Kilnapp Enterprises).  The amounts range from a few thousand to tens of thousands of dollars.  In some cases the DOL has asked the dealer to pay ‘liquidated damages,’ meaning a penalty equal to the total back pay owed.”  Real Clean does not claim this statement is false.  There can be no doubt that in light of the DOL’s activities, MSADA’s members who were customers of Real Clean would have been interested to know that other Real Clean customers had been so assessed.  Cf. Shaari v. Harvard Student Agencies, Inc., 427 Mass. 129, 133 (1998).  The defendants had no obligation to report about any other actions being taken by the DOL with respect to other brokers, and, indeed, if the DOL’s treatment of other brokers were relevant, the publications did not suggest that the use of other brokers instead of Real Clean would be a safe harbor.  Each statement indicated that if they chose another company, dealers “should take steps to ensure that the new detailing company is complying with all employment laws.”  The November 13, 2013, version of the article noted in addition that “there is no assurance that the DOL will not pursue similar claims against other detailing companies.”  The statements about Real Clean were not rendered materially false by the failure to include reference to any other broker or its dealer customers that might also have been subject to the DOL’s scrutiny.

Further, even if the case could be made that the publication was false because it mentioned only Real Clean, the allegations are insufficient to show that the defendants wrote the article knowing it to be false or in reckless disregard of its truth or falsity.  There is no allegation in the amended complaint that MSADA was even aware of the fact, if it is true, that other brokers or their dealer clients had been approached by the DOL.

Real Clean also objects to a series of specific statements in the publications.  The first is “[t]his is a serious situation for dealers who have a relationship with Real Clean, and it will only get worse.”

The first half of the statement, even if viewed as a statement of fact and not opinion, is true.  The DOL assessing overtime pay against dealerships, rightly or wrongly, is certainly a serious matter.  Real Clean has not alleged that the publications were incorrect in stating that some dealerships had been assessed “thousand to tens of thousands of dollars.”  The Gordon letter admits that some dealerships had paid the assessments, although it implies that the dealerships who had done so had received assessments of considerably smaller amounts.

The second part of the sentence, asserting that the situation will only get worse is, quite obviously, a statement of opinion based on the author’s own professional judgment.  “An assertion that cannot be proved false” cannot be actionably defamatory.  Cole v. Westinghouse Bdcst. Co., 386 Mass. 303, 312, cert. denied, 459 U.S. 1037 (1982) (quotation omitted).  The defendants were entitled to hold this opinion, and its expression cannot form the basis of a defamation claim.

The plaintiff next objects that the article describes those who actually do the detailing work as Real Clean “employees” or “personnel.”  To begin with, in the context of a newsletter directed at lay people, we do not think that these terms can be read as legal terms of art.  Rather, they are used in their colloquial sense simply to identify the people about whom the author is speaking, i.e., the actual detailers “connect[ed]” to the dealerships by Real Clean.  Thus, even if those detailers are not as a legal matter employees or personnel of Real Clean, there is no material falsehood here.

Further, even if these words were read as legal terms of art, they would reflect nothing more than the opinion of the attorney author that the DOL’s allegations are well taken.  A lawyer’s opinion about an unsettled legal question –- in this case whether these detailers were employees of Real Clean — again cannot form the basis for a defamation claim unless it implies the existence of undisclosed defamatory facts.  There was no such implication here.

The plaintiff next complains about the statement that the DOL had attempted to tie Real Clean to dealerships under a joint employer theory.  Again, this is not materially false.  Whether the DOL’s theory was in fact that these dealerships were the detailers’ joint employers with Real Clean, or were, in fact, the detailers’ sole employers, the important point for the reader is that the DOL sought to subject dealers to assessments for overtime pay for the work done by those detailers on the basis that the detailers were their employees.  “Minor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.’”  Masson, 501 U.S. at 517, quoting from Heuer v. Kee, 15 Cal. App. 2d 710, 714 (1936).

Next, Real Clean objects to the statements that there was a “continuing investigation” into Real Clean.  While, as Real Clean contends, there is properly considered material indicating that no assessments had been made against Real Clean through the date of the Gordon letter in January, 2014, there is no allegation in the complaint nor anything in the record that indicates on what date, if any, the investigation of Real Clean ended.  In light of this, even if there were no continuing investigation, the properly considered materials before the judge could not support a conclusion that the false statement was made knowingly or in reckless disregard of its truth or falsity.

Finally, Real Clean alleges that to the extent that the over-all impression created by the publications was that the DOL was “targeting” Real Clean’s customers, that impression was false.  To the extent this argument goes beyond the claim that we have rejected above –- regarding whether the defendants were obligated to make clear that other companies providing detailing services were also under scrutiny by the DOL — it is without merit.  The impression that Real Clean’s customers were being targeted is not false; it is true.

Because we conclude that there were no false statements actionable in a claim for defamation, and that, read as a whole, the publications were not actionable as defamatory, dismissal of the defamation claim was appropriate.  This conclusion also applies to the commercial disparagement claim, with respect to which the standards regarding falsity and intent are the same.  See HipSaver, Inc., 464 Mass. at 523.

Real Clean’s Lanham Act claim fails, if for no other reason, because such a claim may be maintained only against one’s competitors, Podiatrist Assn. v. La Cruz Azul de P.R., Inc., 332 F.3d 6, 19 (1st Cir. 2003), and there is no allegation that any of the defendants competes with Real Clean.

Real Clean contends that its claim for tortious interference must be reinstated because it has adequately alleged the use of improper means:  the publication of false statements of fact to the plaintiff’s customers.[4]  This argument, however, is foreclosed by our conclusion that each of the statements alleged to be actionably false is substantially true.

Finally, because Real Clean’s G. L. c. 93A claim relies on each of the underlying claims, its dismissal, too, was proper.

Judgment affirmed.

Full-text Opinions

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

15-P-474                                        Appeals Court

RICHARD ABRAHAMSON  vs.  ESTATE OF JOHN LeBOLD.

No. 15-P-474.

Barnstable.     January 14, 2016. – March 17, 2016.

Present:  Hanlon, Sullivan, & Maldonado, JJ.

Limitations, Statute of.  Executor and Administrator, Short statute of limitations.  Practice, Civil, Statute of limitations.  Jurisdiction, Equitable.

Civil action commenced in the Superior Court Department on July 3, 2014.

A motion to dismiss was heard by Cornelius J. Moriarty, II, J.

Alexander J. Durst, of Ohio (David V. Lawler with him) for the plaintiff.

Eric P. Finamore for the defendant.

SULLIVAN, J.  The plaintiff, Richard Abrahamson, appeals from a judgment dismissing his complaint because it was not filed within one year of the date of death of the decedent, John LeBold, as required by § 3-803(a) of the Massachusetts Uniform Probate Code (MUPC).  See G. L. c. 190B, § 3-803(a).  Abrahamson contends that his suit was timely filed pursuant to the savings statute, see G. L. c. 260 § 32, and, alternatively, he should have been granted equitable relief from the one-year limitations period in the MUPC.  We conclude that G. L. c. 190B, § 3-803(a), governs, and G. L. c. 190B, § 3-803(e), bars the award of equitable relief in the trial court.

1.  Procedural history.  The following procedural history is undisputed on appeal.  Abrahamson first filed suit against John LeBold in the Court of Common Pleas in Hamilton County, Ohio, in September of 2012.  A little over two months later, on December 5, 2012, LeBold died.  The Ohio trial court dismissed the suit for lack of personal jurisdiction on January 22, 2013, and Abrahamson appealed.  While the appeal was pending, on February 13, 2013, LeBold’s counsel filed a “Suggestion of Death” with the trial court.  Abrahamson then successfully substituted LeBold’s estate as the defendant in the Ohio appeal.  On December 6, 2013, a year and a day after LeBold’s death, the Ohio Court of Appeals affirmed the dismissal on the ground of lack of personal jurisdiction.  Abrahamson did not file suit in Massachusetts until July 3, 2014, over a year and a half after LeBold’s death.  The estate filed a motion to dismiss the Massachusetts action, which was allowed.  In a comprehensive and well-reasoned memorandum, the motion judge ruled that Abrahamson’s claims were barred as a matter of law because LeBold had died more than a year before the plaintiff filed suit in Massachusetts, thereby exceeding the one-year period of limitations for actions against the personal representative of the decedent set forth in G. L. c. 190B, § 3-803(a).[1]  The judge concluded that, although G. L. c. 260, § 32, would otherwise “save” Abrahamson’s action,[2] the savings provision is inapplicable to a special statute which contains an inconsistent statute of limitations.  See G. L. c. 260, § 19 (“If a special provision is otherwise made relative to the limitation of any action, any provision of this chapter inconsistent therewith shall not apply”).  Relying on O’Brien v. Massachusetts Bay Transp. Authy., 405 Mass. 439, 442 (1989) (O’Brien), the motion judge concluded that the one-year limitations period in G. L. c. 190B, § 3-803(a), was a special statute, and that it was inconsistent with the three- six- and four-year limitations periods under G. L. c. 260 applicable to the tort, contract, and consumer protection claims at issue.  The judge further concluded that dismissal was “consistent with the purpose” of G. L. c. 190B, § 3-803(a), which, he found, “is to expedite the settlement of estates.”  We agree.

2.  Statutory construction.  Abrahamson contends that G. L. c. 260, § 32 (the savings statute), renders this suit timely — a suit which, due to LeBold’s death on December 5, 2012, would otherwise be time barred under the one-year limitations period in G. L. c. 190B, § 3-803(a).

Although heard as a motion to dismiss, see Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), the motion was converted to a motion for summary judgmentby submission and consideration of matters outside the pleadings.^[3]  We review a motion for summary judgment de novo and determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.”  Caron v. Horace Mann Ins. Co., 466 Mass. 218, 221 (2013) (citation omitted).

Whether this case is governed by the statute of limitations requiring that suits against an estate be commenced within one  year of death, see G. L. c. 190B, § 3-803(a), versus the one-year grace period from the date of judgment (in some specified cases) found in the savings statute, G. L. c. 260, § 32, turns on whether the statute of limitations under G. L. c. 260 and G. L. c. 190B are inconsistent.  See G. L. c. 260, § 19.  A so-called “special” statute, such as the shortened one-year statute of limitations for claims against an estate, is “inconsistent” within the meaning of G. L. c. 260, § 19, when the special statute of limitations is shorter than the statute of limitations found in G. L. c. 260.  “[T]he inconsistency contemplated by the Legislature occurs where the length of the limitations period set forth in the special statute is different from the length of a limitations period set forth in G. L. c. 260.”  Maltz v. Smith Barney, Inc., 427 Mass. 560, 563 (1998), quoting from O’Brien, 405 Mass. at 442.  Section 3-803(a) imposes a shorter statute of limitations than the three- six- and four-year limitations periods applicable to the tort, contract, and G. L. c. 93A claims for which the plaintiff brought suit.  See G. L. c. 260, §§ 2, 2A, & 5A, respectively.[4]  As a result, the one-year limitations period in G. L. c. 190B, § 3-803(a), governs.  See Maltz v. Smith Barney, Inc., supra at 563.

This conclusion is underscored by an examination of the divergent purposes of the two statutes, and the legislative history of the pertinent probate statute.  The purpose of G. L. c. 260, § 32, is “to relieve a person who, in the exercise of due diligence, within the time limited by the general statute of limitations, has attempted to enforce a claim by suit, and has failed in such attempt by reason of some matter of form, which can be remedied in a new proceeding, and which does not affect the merits of his case.”  Cannonball Fund, Ltd. v. Dutchess Capital Mgmt., LLC, 84 Mass. App. Ct. 75, 84-85 (2013), quoting from Cumming v. Jacobs, 130 Mass. 419, 421 (1881).  “The provisions of G. L. c. 260, § 32, are to be construed liberally, in the interest of determining the parties’ rights on the merits.”  Boutiette v. Dickinson, 54 Mass. App. Ct. 817, 818 (2002).

By contrast, the statute of limitations contained in the MUPC is designed to prevent the prolongation of litigation that G. L. c. 260, § 32, permits.  “The purpose of the [probate] statute is to expedite the settlement of estates.”  Gates v. Reilly, 453 Mass. 460, 466 (2009).  See New England Trust Co. v. Spaulding, 310 Mass. 424, 429 (1941).[5]  Between 1852 and 2008, the limitations period for suits against an estate was reduced from four years from the date of bond to two years from the date of bond, and finally to one year from the date of death.[6]  “The legislative intent to impose a shortened period for bringing claims of this nature is further evident from the [successive] amendment[s] . . . reducing the limitations period.”  Ford v. Commissioner of Correction, 27 Mass. App. Ct. 1127, 1129 (1989) (discussing amendments to G. L. c. 249, § 4).

The Legislature also added a savings clause to the probate statute for claims against an estate in 1855, where it remained for 153 years.  See G. L. c. 197, § 12 (repealed in 2008).[7]  When Massachusetts finally adopted the Uniform Probate Code (model code) in 2008, repealing G. L. c. 197 in its entirety, the Legislature retained the one-year limitations period for suits against an estate’s personal representative, see G. L. c. 190B, § 3-803(a), a limitations period which by that point also had been adopted by the drafters of the model code.[8]  The savings clause formerly contained in G. L. c. 197, § 12, did not appear in the model code, and was not retained in the MUPC.  See G. L. c. 190B, § 3-803.  “Where the Legislature has deleted such language, apparently purposefully, the current version of the statute cannot be interpreted to include the rejected requirement.”  Ellis v. Department of Industrial Accs., 463 Mass. 541, 557 (2012), quoting from Kenniston v. Department of Youth Servs., 453 Mass. 179, 185 (2009).

Thus, the legislative purposes of G. L. c. 260, § 32, and G. L. c. 190B, § 3-803(a), are in conflict.  While G. L. c. 260, § 32, affords the diligent litigant additional time to file a claim, G. L. c. 190B, § 3-803(a), imposes a bar designed to marshal claims and close estates.  Moreover, the differences between the two statutes of limitation are plainly the product of legislative design.  This case is therefore distinguishable from O’Brien, supra, upon which Abrahamson relies.  O’Brien held that there was no inconsistency between the (then) two-year statute of limitations for tort claims under G. L. c. 260, and a special statute providing for a two-year statute of limitations for tort claims against the Massachusetts Bay Transportation Authority.  In O’Brien, the time periods were identical, and there was no inconsistency in legislative purpose or design.  405 Mass. at 442.  See Carroll v. Worcester, 42 Mass. App. Ct. 628, 630 (1997) (special provision and G. L. c. 260 tort claim limitations periods were both three years).

It is undisputed that Abrahamson filed suit against the estate in Massachusetts more than one year after LeBold’s death.  His claims are time barred by the one-year limitations period in G. L. c. 190B, 3-803(a), as a matter of law.

3.  Equitable relief.  Abrahamson seeks equitable relief from the one-year statute of limitations because he provided the estate with actual notice when, in the Ohio lawsuit, he substituted the defendant for LeBold.  However, G. L. c. 190B, § 3-803(e), provides that only the Supreme Judicial Court may grant a complaint in equity filed by a creditor “whose claim has not been prosecuted within the time limited by subsections (a) or (b) . . . .”  As a result, the request for equitable relief was properly denied.[9]

Judgment affirmed.

Full-text Opinions

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

SJC-11890

IN THE MATTER OF RICHARD S. WEISS.

March 17, 2016.

Attorney at Law, Suspension, Reinstatement.

The petitioner, Richard S. Weiss, appeals from the judgment of a single justice of this court denying his petition for reinstatement to the bar.  We affirm.

After Weiss “stipulated to facts warranting the conclusion that he violated the applicable disciplinary rules,” see Matter of Weiss, 460 Mass. 1012, 1013 (2011), he was suspended from the practice of law for one year and one day, effective May 20, 2011.  His first petition for reinstatement was denied by a single justice of this court in 2013, and he was given leave to reapply for reinstatement on or after January 1, 2014.  See S.J.C. Rule 4:01, § 18 (8), as appearing in 453 Mass. 1315 (2009).  He filed a second petition for reinstatement on June 25, 2013.  The single justice denied the petition without prejudice to filing a new petition on or after January 1, 2014.  The petition he filed thereafter, his third, is the subject of this appeal.

On October 23, 2014, a hearing committee of the Board of Bar Overseers (board) held a hearing, at which Weiss was represented by counsel, on his third petition.  The committee issued a report on December 2, 2014, setting forth its findings and recommending that the petition for reinstatement be denied.  On February 22, 2015, the board voted unanimously to adopt the report of the hearing committee and its recommendation that the petition be denied.  A single justice of this court reviewed the record before the hearing committee and the board, concluded that there was substantial evidence to support the findings, and denied the petition for reinstatement.^[1]  The case is now before us on Weiss’s preliminary memorandum, pursuant to S.J.C. Rule 2:23 (b), 471 Mass. 1303 (2015).  That rule requires an appellant to

“set forth the relevant background and summarize the appellant’s arguments on appeal, with citations to applicable authority.  It is incumbent on the appellant to demonstrate in this memorandum that there has been an error of law or abuse of discretion by the single justice; that the decision is not supported by substantial evidence; that the sanction is markedly disparate from the sanctions imposed in other cases involving similar circumstances; or that for other reasons the decision will result in a substantial injustice.”

Id.  Weiss has failed to meet this burden.  He has demonstrated none of the bases for reversal identified in the rule.  The argument made in his memorandum is essentially that the single justice’s probing questions of bar counsel at the hearing before him indicated that the single justice may have been inclined to grant reinstatement, yet ultimately did not do so, and that this somehow constitutes reversible error; alternatively, Weiss argues, the full court, with the single justice included, should review the matter anew.  Neither position has merit or satisfies the letter or the spirit of the rule.

An attorney seeking reinstatement after suspension of more than one year has “the burden of demonstrating that he or she has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth, and that his or her resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or to the public interest.”  S.J.C. Rule 4:01, § 18 (5), as appearing in 453 Mass. 1315 (2009).  See Matter of Hiss, 368 Mass. 447, 456, 460 (1975).  See also Matter of Fletcher, 466 Mass. 1018, 1020 (2013), cert. denied, 135 S. Ct. 80 (2014).  In this case, the hearing committee, as the fact finder, heard the testimony, observed the witnesses (including the petitioner), and thoroughly considered the evidence.  Its findings, which were amply supported by the evidence, were adopted by the board.  Although the committee did “not doubt the sincerity of the petitioner’s desire to return to practice,” it was not persuaded that Weiss

“has attained a sufficient understanding of the basis for his discipline to support true rehabilitation, and to avoid repeating his misconduct.  The [committee] is also concerned by the petitioner’s inability to recollect much about his prior disciplinary history and patterns of denial concerning the disciplinary history he did remember.  Finally, we are not persuaded that the petitioner has sufficiently maintained his learning in the law.”

In these circumstances, duly taking into account the findings and recommendations of the committee and the board, the single justice properly denied reinstatement.

“Unlike nearly all other States, which require that judgment in bar discipline cases shall be by the full court, we in this Commonwealth use the single justice system in such cases.”  Matter of Alter, 389 Mass. 153, 156 (1983).  We review the single justice’s decision (on issues other than the initial choice of a sanction at the disciplinary stage) to determine whether there has been an abuse of discretion or clear error of law.  See Matter of McBride, 449 Mass. 154 (2007); Matter of Cobb, 445 Mass. 452, 466, 475 (2005).  While we share the single justice’s stated concern in this case that bar counsel may have been attempting to use the reinstatement process to some extent “to extract further punishment for past acknowledged and sanctioned misconduct,” which would have been improper, we find no error in the single justice’s ultimate ruling that the hearing committee’s and board’s findings, report, and recommendation reflect a “careful consideration of the matter” and support the denial for reinstatement.  The petitioner has not shown otherwise in his memorandum.

Further, “review by the full court, on appeal from the single justice’s judgment, must be by a standard which promotes even-handed results in such cases.  Accordingly, we think that the full court, in reviewing any disciplinary decision, should inquire whether the judgment is markedly disparate from those ordinarily entered by the various single justices in similar cases.”  Matter of Alter, 389 Mass. at 156.  Cf. Matter of Cappiello, 416 Mass. 340, 343 (1993) (evaluating circumstances attendant to reinstatement of similarly situated attorneys); Matter of Allen, 400 Mass. 417, 422 (1987) (same).  Where, as here, a petitioner has failed to demonstrate the conditions predicate to reinstatement, a petition for reinstatement must be denied.  See Matter of Waitz, 416 Mass. 298, 306-307 (1993).  Contrast Matter of Ellis, 457 Mass. 413 (2010).  There was therefore no marked disparity in the single justice’s denial of the petition.

As the single justice observed, this is not an easy case.  The petitioner, who was suspended for one year and one day, has not practiced law since May, 2011.  As the hearing committee recognized, he has a sincere desire to return to practice.  The focus of reinstatement proceedings, however, is on the “integrity and standing of the bar, the administration of justice, [and] the public interest,” S.J.C. Rule 4:01, § 18 (5), rather than on a petitioner’s private interests.  See Matter of Fletcher, 466 Mass. at 1020.  Neither the hearing committee, nor the board, nor the single justice was satisfied that those interests would adequately be protected if the petitioner were reinstated, on this record, at this time.

Judgment affirmed.

The case was submitted on briefs.

Richard S. Weiss, 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

15-P-292                                        Appeals Court

JILLIAN ALMEIDA & others[1]  vs.  ANTONIO ARRUDA & others.[2]

No. 15-P-292.

Bristol.     January 12, 2016. – March 18, 2016.

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

Alcoholic Liquors.  Zoning, Nonconforming use or structure.

Civil action commenced in the Superior Court Department on October 18, 2011.

The case was heard by Robert J. Kane, J.

Marc R. Deshaies for the plaintiffs.
Walter Fraze, Jr., for Antonio Arruda and another.

KAFKER, C.J.  This appeal arises from a dispute over the addition of beer and wine sales at a convenience store in the town of Westport.  The store, owned by Antonio and Darlene Arruda (collectively, Arrudas) and located on land that is currently zoned as residential, operates as a lawful, preexisting nonconforming use pursuant to G. L. c. 40A, § 6.  The Arrudas sought a finding by the zoning board of appeals of Westport (board) allowing the sale of beer and wine at the store.  The board voted unanimously in favor of the Arrudas on the ground that the addition of beer and wine sales to the store’s preexisting nonconforming use is not substantially more detrimental to the neighborhood.  The plaintiffs, abutters to the store, appealed pursuant to G. L. c. 40A, § 17.  After a bench trial, a Superior Court judge affirmed the board’s decision, finding that the sale of beer and wine was neither a “substantial change” in use nor a “detriment to the neighborhood.”  Judgment entered and the plaintiffs appealed.  We affirm.

Background.  The convenience store is located on land that is currently zoned for residential use.  The Arrudas purchased the store in 2005, at which time it presumably was operating as a lawful nonconforming use under G. L. c. 40A, § 6.[3]  The store was within commonly owned commercial space that also contained a beauty shop and an insurance company.  In 2006, the Arrudas sought permission from the board to enlarge the convenience store by encapsulating the space then reserved for the beauty shop and the insurance company.  The Arrudas also sought permission to sell beer and wine at the store.  After a public hearing, the board granted permission for the store’s expansion but denied permission to sell beer and wine.  Apparently no one appealed the board’s decision.

In September, 2011, the Arrudas leased the store to Lino Rego while maintaining ownership of the property.  The Arrudas again petitioned the board to allow the sale of beer and wine at the store.  After a public hearing, the board voted in favor of the Arrudas, finding that “the addition of beer and wine sales to the pre-existing non-conforming . . . use list for this property is not substantially more detrimental to the neighborhood.”

Pursuant to G. L. c. 40A, § 17, the plaintiffs filed a complaint in Superior Court seeking to reverse the board’s decision.  The judge determined that “the proposed sale of beer and wine fails to constitute a substantial change in use, and fails to constitute a detriment to the neighborhood.”  In finding no substantial change in use, the judge noted that the sale of beer and wine would not predominate but instead would “integrate into the current operations of the store,” occur in the same space in which other groceries were sold, and occupy only about twelve percent of the store’s space.  In finding no detriment to the neighborhood, the judge noted that traffic concerns were related more to the general use and nature of the road on which the store is located than to any proposed change in the store’s operation, that Rego’s background in running a similar store would minimize the risks associated with alcohol sales, and that any littering would not be increased by the sale of beer and wine.

Discussion.  A prior nonconforming use is one that is lawfully carried on at the time a zoning ordinance or by-law is adopted that prohibits that use.  Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527, 529 (1990).  The convenience store here was in operation before the land was zoned for residential use and, therefore, is a prior nonconforming use.  See G. L. c. 40A, § 6.

Prior nonconforming uses, and any proposed changes, extensions, or alterations, are governed by G. L. c. 40A, § 6.[4]  Pursuant to this statute, a prior nonconforming use of land is not subject to a later enacted ordinance or by-law.  However, “any change or substantial extension of such use” falls outside this protection and is therefore subject to later amendments to an ordinance or by-law.  Ibid.  The question is whether the proposed use is a change or substantial extension under § 6.  If the answer is “no,” then the proposed use is permitted as a protected prior nonconforming use.  Moreover, under art. 4.1.2 of the Westport zoning by-laws, even if the answer is “yes,” then the proposed use may be permitted if the board makes an additional finding that “such change shall not be substantially more detrimental than the existing non-conforming use to the neighborhood.”[5]

The three-prong test to determine whether a proposed use is a change or substantial extension and therefore subject to the prescribed finding requirement is as follows:  (1) whether the proposed use reflects the nature and purpose of the prior use, (2) whether there is a difference in the quality or character, as well as the degree, of use, and (3) whether the proposed use is different in kind in its effect on the neighborhood.  Powers v. Building Inspector of Barnstable, 363 Mass. 648, 653 (1973).  See Bridgewater v. Chuckran, 351 Mass. 20, 23 (1966); Derby Ref. Co. v. Chelsea, 407 Mass. 703, 712 (1990).  The burden is on the property owner to prove “the requisite similarity between the [proposed] use and the original nonconforming use” so as to have it protected as a prior nonconforming use.  Cape Resort Hotels, Inc. v. Alcoholic Lic. Bd. of Falmouth, 385 Mass. 205, 212 (1982).  The analysis and the result depend “almost entirely on the particular facts of [the] case.”  Powers, supra.

On appeal, we are bound by the trial judge’s findings of fact, including all reasonable inferences, that are supported by the evidence.  See Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 420 (2005); T.W. Nickerson, Inc. v. Fleet Natl. Bank, 456 Mass. 562, 569 (2010).  Such findings will only be set aside if clearly erroneous.  Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996).  The judge’s legal conclusions are reviewed de novo.  Anastos v. Sable, 443 Mass. 146, 149 (2004).  Here, the judge’s findings of fact are supported by the record and support his conclusion that the proposed sale of beer and wine satisfies all three prongs of the test and therefore “fails to constitute a substantial change in use.”[6]

1.  Nature and purpose of prior use.  Citing the Supreme Judicial Court decision in Jasper v. Michael A. Dolan, Inc., 355 Mass. 17 (1968), as controlling, the plaintiffs argue that the addition of beer and wine sales does not reflect the nature and purpose of the prior nonconforming use and therefore is not protected under G. L. c. 40A, § 6.  In Jasper, supra at 24, the court held that the addition of hard liquor sales at a self-service food market previously licensed to sell beer and wine constituted a “new use” because it did not reflect the nature and purpose of the preexisting use.[7]  However, Jasper involved more than just the addition of hard liquor; the change in use also included partitioning the building into two distinct stores, a self-service food market and a liquor store, each with separate entrances.  See id. at 21.  See also Derby Ref. Co., supra at 713, quoting from Jasper, supra at 24 (“Our holding in Jasper rested principally on the consideration that ‘the operation of a separately conducted all-alcoholic package store is substantially different from the sale of beer and wine in connection with a food store’” [emphasis supplied]).  We agree with the judge that Jasper is distinguishable from this case because here, the proposed sale of beer and wine “would occur in the same space as where other groceries and sundries are sold” and “[those sales] would integrate into the current operations of the store.”

Here, the proposed use reflects the nature and the purpose of the prior use, thereby meeting the first prong of the test.  The prior use consists of a neighborhood convenience store selling groceries and various sundries.  The proposed use is the same, just with the addition of beer and wine.  Our decisions do not require that a proposed use be indistinguishable from a prior use in order to be protected as a prior nonconforming use.  Compare Powers, 363 Mass. at 659 (expanding retail sale of candles business to include various “gift shop” and other noncandle-related items did not change nature and purpose of retail sales business); Derby Ref. Co., 407 Mass. at 713 (converting petroleum storage facility to liquid asphalt storage facility did not change nature and purpose of use, which remained bulk deliveries, bulk tank storage, and wholesale distribution).  Contrast Cape Resort Hotels, Inc., 385 Mass. at 212-213 (shifting from traditional, full-service summer resort hotel to large entertainment complex constituted change in nature and purpose of prior use).[8]

2.  Quality, character, and degree of use.  There is also nothing to suggest that the proposed sale of beer and wine would change the quality and character, as well as the degree of use, of the convenience store.  The second prong may be satisfied when a proposed use is “reasonably adapted to the prior use,” is not “extraordinary or unreasonable,” and does not “change the fundamental nature of the original enterprise.”  Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404, 411 (1995).  See Derby Ref. Co., supra at 714 (second prong satisfied when “nothing suggest[s] that . . . changes were either extraordinary or unreasonable or that they changed the fundamental nature of the original enterprise”).  The judge determined that the beer and wine sales would not predominate but rather would “operate as an adjunct to the sale of groceries and sundries that the store presently sells.”  This determination is supported by the judge’s finding that of the store’s twelve or thirteen beverage coolers, beer and wine would be placed in no more than five coolers.  Furthermore, these products would occupy no more than twelve percent of the store’s space.  The additional products simply reflect a small, reasonable expansion in convenience store inventory.  Nothing in the record suggests that allocating twelve percent of a convenience store’s space to allow for beer and wine sales is an extraordinary or unreasonable change, nor would doing so change the fundamental nature of the convenience store.  See Derby Ref. Co., supra; Barron Chevrolet, Inc., supra.  Contrast Cape Resort Hotels, Inc., 385 Mass. at 213 (transforming traditional full-service hotel with dining room, reading room, and lobby into entertainment complex with three “clubs” and game room “demonstrates a fundamental difference in ‘the quality or character, as well as the degree, of use’”), quoting from Bridgewater, 351 Mass. at 23; Hinves v. Commissioner of Pub. Works of Fall River, 342 Mass. 54, 57 (1961) (transforming grocery store into catering service constitutes use different “in quality and not merely in degree” [citation omitted]).  Therefore, the second prong of the test is satisfied.

3.  Different in kind in its effect on neighborhood.  In support of their contention that the addition of beer and wine sales at the store is an impermissible expansion of the prior nonconforming use, the plaintiffs argue that these sales would be substantially more detrimental to the neighborhood.  Specifically, the plaintiffs point to potential increases in traffic and litter, as well as safety concerns related to inebriated customers.  The judge’s findings support the conclusion that the third prong of the test is satisfied.[9]

Although increased traffic is a legitimate consideration, see Powers, 363 Mass. at 663, the judge noted that the traffic concerns here “lie in the nature of the [road]” not the use of the store.  Use of this road has increased in connection to population growth in the surrounding area.  Furthermore, the topography of the road lends itself to speeding drivers.  These factors are present regardless of whether the convenience store sells beer and wine.  Similarly, any litter problems are likely to remain, notwithstanding the proposed use, because, as the judge noted, it is illogical that “an individual who purchases beer and wine is going to dispose of the container while out in the parking lot.”  The judge concluded that the record did not support a finding that inebriated individuals would come to the store and be permitted to purchase beer and wine.  We agree.[10]  Therefore, the judge’s findings support the determination that the sale of beer and wine would not affect the neighborhood in a way that is different in kind as compared to the current store.  Contrast Marblehead v. Rosenthal, 316 Mass. 124, 127-128 (1944) (different effect on neighborhood when tailor shop with minimal hand-washing of garments transitioned into completely mechanized dry cleaning establishment); Powers, supra (converting storage building to wholesale shipping and receiving center resulted in increased truck traffic different in kind in its effect on neighborhood).

Conclusion.  We conclude that the evidence supports the judge’s determination that the sale of beer and wine satisfies the three-prong test.  Therefore, in the instant case, the proposed sale of beer and wine at the convenience store does not constitute a change in use and is thus protected as a prior nonconforming use under G. L. c. 40A, § 6.

Judgment affirmed.

Full-text Opinions

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

14-P-1208                                       Appeals Court

COMMONWEALTH  vs.  JOSE LUGO.

No. 14-P-1208.

Suffolk.     November 9, 2015. – March 18, 2016.

Present:  Cypher, Trainor, & Rubin, JJ.

Assault and Battery by Means of a Dangerous Weapon.  Joint Enterprise.  Evidence, Joint venturer, Knife.  Practice, Criminal, Argument by prosecutor, Instructions to jury.

Indictments found and returned in the Superior Court Department on June 27, 2012.

The cases were tried before Linda E. Giles, J.

Jacob B. Stone for the defendant.

Matthew T. Sears, Assistant District Attorney (Megan E. O’Rourke, Assistant District Attorney, with him) for the Commonwealth.

CYPHER, J.  The defendant, Jose Lugo, appeals from his convictions by a jury of assault and battery with a knife, assault and battery with a shod foot, and assault with a knife. He argues that the trial judge’s denial of his motions for a required finding of not guilty was error because there was insufficient evidence of his participation in a joint venture to support his convictions of assault and battery with a knife and assault with a knife.  He claims error also in the prosecutor’s closing argument and the jury instructions on prior inconsistent statements.  We affirm the defendant’s convictions.

Background.  On April 12, 2012, friends Victor Ramos, Milton Henriquez, Edwin Colon, and Alejandro Naranjo spent the evening together at a Boston nightclub.  At closing time, around 2:00 A.M., the four friends returned to their car, which was parked across the street in a multilevel garage.  Waiting in a line of vehicles to exit the garage, the friends were approached by a man from a vehicle in front of theirs who, thinking that they had been honking the horn, punched Colon and Naranjo through their open passenger’s side windows.  The four friends got out of their car and Henriquez traded blows with the man before being separated by the friends and others from surrounding vehicles.

When the brawl subsided and the crowd of people who had gathered to watch or take part in the fight began to disperse, a sport utility vehicle (SUV) from an upper level of the garage approached the area and stopped and two men emerged.  One was a tall, skinny man, later identified as Javier Fernandez, and the other was a short man with braids, later identified as the defendant.  According to testimony by Ramos, the two men appeared to be intoxicated and angry, “[L]ike they wanted to do something.”

After greeting and shaking hands with people from the surrounding vehicles, the two men approached Ramos and Henriquez and engaged them in a tense verbal exchange.  During the exchange, Fernandez and the defendant stood side by side facing Ramos, and Henriquez stood behind Ramos, facing the defendant.  Fernandez and the defendant talked to Ramos and Henriquez, but did not speak to one another.  Ramos, attempting to defuse the situation, suggested that they all go home and touched Fernandez on the shoulder or arm, provoking Fernandez, who asked, “[A]re you disrespecting me?”  Fernandez left the group and went back to the SUV while the defendant continued talking to Ramos and Henriquez.

Returning from the SUV, Fernandez circled around the group and, approaching Henriquez, stabbed him in the side, under his armpit.  Henriquez put his hand on Ramos’s shoulder and declared that he had just been stabbed.  Ramos saw a knife in Fernandez’s hand as Fernandez stepped forward, twice jabbing the knife at him.  Ramos grabbed Henriquez and took off running up a ramp to an upper level of the garage.  Fernandez and the defendant immediately gave chase, running shoulder to shoulder with another man, identified only as wearing a black polo shirt.  As Ramos and Henriquez ran, Fernandez stabbed at Henriquez, who stumbled and fell to the ground.  Fernandez slashed and stabbed at Henriquez and the defendant kicked and stomped on him as he lay on the ground.

Security guard Jeffrey Swanson testified that he observed the defendant stomping on Henriquez with the open sole of his shoe, “like he was trying to put out a fire.”  While Henriquez was being kicked and stabbed, Ramos grabbed hold of him and tried to drag him away from the assailants.  The attack, which lasted about two or three minutes, was interrupted when security guards arrived and ordered the men to stop.

As the security guards assessed the situation and waited for police to arrive, they observed the defendant walking briskly away from the scene and Fernandez throwing a knife under a car.  The two men were detained by security personnel.  When police arrived, Ramos pointed out the defendant and Fernandez as the men who had attacked Henriquez.  Sergeant Michael Talbot testified that while the defendant was in custody at the police station, his behavior was combative and he refused to allow Talbot to photograph a scratch on his hand.  A bloodstain taken from the chest area of defendant’s outer shirt was determined to be consistent with Henriquez’s deoxyribonucleic acid profile.

Discussion.  1.  Sufficiency of the evidence.  The defendant moved for a required finding of not guilty at the close of the Commonwealth’s case and again at the close of all the evidence.  He claims that these motions were improperly denied because the evidence failed to prove that he participated in a joint venture with knowledge that his companion was armed with a knife.  In reviewing the denial of a motion for a required finding, we examine the relevant evidence in the light most favorable to the Commonwealth and ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 433 U.S. 307, 319 (1979).  “We take this view of the evidence notwithstanding any evidence to the contrary presented by the defendant.”  Commonwealth v. Garcia, 470 Mass. 24, 30 (2014), quoting from Latimore, supra at 676–677.

In reviewing the sufficiency of the evidence on a theory of joint venture, we must determine whether the evidence presented supports a finding that “the defendant knowingly participated in the commission of thecrime charged, alone or with others, with the intent required for that offense.”  Commonwealth v. Norris, 462 Mass. 131, 138–139 (2012), quoting from Commonwealth v. Zanetti,454 Mass. 449, 468 (2009).  In addition, where, as here, “the conviction on a joint venture theory is for a crime that has use or possession of a weapon as an element,” the evidence must suffice to show that the defendant knew that his coventurer was armed with a knife.  Commonwealth v. Britt, 465 Mass. 87, 100 (2013).

There was testimony at trial that the defendant and Fernandez were friends who had spent the evening together before they arrived on the scene.  The defendant participated in the verbal exchange with Ramos and Henriquez and witnessed Fernandez’s escalating agitation during the encounter.  The defendant stood in a position, facing Ramos and Henriquez, where he could observe Fernandez circle around and stab Henriquez in the side.  After Henriquez announced that he had been stabbed, the jury could also have inferred that the defendant could see Fernandez jab the knife twice at Ramos.[1]  The defendant immediately took off with Fernandez in pursuit of Ramos and Henriquez and, when Henriquez was on the ground, the defendant kicked and stomped on him while Fernandez repeatedly stabbed him.  “At no time during this conflict did the defendant seek to withdraw.”  Commonwealth v. Sexton, 425 Mass. 146, 152 (1997).

From the defendant’s actions, a rational trier of fact could conclude, beyond a reasonable doubt, that the defendant possessed the intent to engage in an assault on Ramos and in an assault and battery on Henriquez with Fernandez, and that the defendant was present and saw that Fernandez was armed with a knife the moment Fernandez first stabbed Henriquez.  Additionally, the defendant was kicking Henriquez as Fernandez stabbed at him.  “There is no need to have an ‘anticipatory compact.’  It is enough that ‘at the climactic moments the parties consciously acted together in carrying out the criminal endeavor.’”  Commonwealth v. Young, 35 Mass. App. Ct. 427, 435 (1993), quoting from Commonwealth v. Fidler, 23 Mass. App. Ct. 506, 513 (1987).

2.  Prosecutor’s closing argument.  The defendant challenges certain portions of the prosecutor’s closing argument, claiming numerous reversible errors.  In particular, he claims that the prosecutor made an improper propensity argument, argued facts not in evidence, misstated evidence, suggested that she had independent knowledge of the truth, engaged in burden-shifting, and repeatedly used the term “victim,” in violation of the judge’s pretrial order.  The challenged statements to which the defendant timely objected — concerning propensity, facts not in evidence, and burden-shifting — we review for prejudicial error.  See Commonwealth v. Silva-Santiago, 453 Mass. 782, 807-810 (2009).  The portions of closing argument to which the defendant did not object but challenges now on appeal — concerning the suggestion of independent knowledge, misstatement of evidence, and use of the term “victim” — we review for any “substantial risk of miscarriage of justice.”  Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).  “Remarks made during closing arguments are considered in context of the whole argument, the evidence admitted at trial, and the judge’s instructions to the jury.”  Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).

a.  Propensity argument.  Referring to evidence of the defendant’s consciousness of guilt, the prosecutor stated, “[T]he defendant had been convicted of this behavior in the past, resisting arrest.  Well we can see that here today, right, he tried to walk away once from the security, once from the Boston police.”  To the extent that the prosecutor’s remark equated the defendant’s prior conviction with a propensity to evade responsibility in the present circumstances, it was improper.  “It is a fundamental rule that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purpose of showing his bad character or propensity to commit the crime charged.”  Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 312 (2011), quoting from Commonwealth v. Baker, 440 Mass. 519, 529 (2003).  See Commonwealth v. Chartier, 43 Mass. App. Ct. 758, 763 (1997) (in using defendant’s prior convictions in substantive sense, “prosecutor strayed over boundary of permissible argument”).

Whether the prosecutor’s propensity argument constitutes reversible error “depends on our consideration of (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 the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury’s conclusions.”  Silva-Santiago, supra at 807, quoting from Commonwealth v. Perez, 444 Mass. 143, 151 (2005).

As the defendant objected to the prosecutor’s argument, we review for prejudicial error.  The improper statement addressed only a collateral issue, that is, the defendant’s consciousness of guilt, as opposed to any essential element of the crimes charged.  See Commonwealth v. Jones, 432 Mass. 623, 629 (2000) (prosecutor’s erroneous remark was aimed only at collateral issue, not heart of defendant’s case).  Both before and after closing arguments, the judge instructed the jury that those arguments are not a substitute for evidence.  See Commonwealth v. O’Connell, 432 Mass. 657, 660 (2000), citing Commonwealth v. Thomas, 400 Mass. 676, 683 (1987) (prosecutor’s inaccurate statement “regrettable,” but not reversible error “where judge instructed jury that closing arguments [are] not evidence”).  Viewed in the context of the prosecutor’s entire argument, the judge’s instructions to the jury, and the evidence at trial, an isolated reference to the defendant’s prior conviction, a fact that defense counsel had preemptively introduced through the defendant’s testimony, did not make a difference in the jury’s conclusion.

b.  Facts not in evidence.  The defendant next argues that the prosecutor’s description of “a fresh scrape with blood on it” on the defendant’s finger improperly suggested a fact not in evidence.  “A prosecutor must limit comment in closing statement to the evidence and fair inferences that can be drawn from the evidence.”  Commonwealth v. Cole, 473 Mass. 317, 333 (2015), quoting from Commonwealth v. Kelly, 417 Mass. 266, 270 (1994).  Contrary to the defendant’s assertion, the prosecutor’s description did not introduce a fact not found in evidence.  Rather, it directly reiterated testimony presented at trial.  We discern no error.[2]

c.  Burden-shifting.  The defendant objected also to what he characterizes as burden-shifting by the prosecutor.  He contends that, in telling the jury to weigh the defendant’s testimony against the testimony of the Commonwealth’s witnesses, the prosecutor impermissibly suggested that the defendant has an affirmative duty to produce evidence of his innocence.[3]  A prosecutor may not “make statements that shift the burden of proof from the Commonwealth to the defendant.”  Commonwealth v. Johnson, 463 Mass. 95, 112 (2012), quoting from Commonwealth v. Amirault, 404 Mass. 221, 240 (1989).  However, a “prosecutor is entitled to emphasize the strong points of the Commonwealth’s case and the weaknesses of the defendant’s case.”  Id. at 113, quoting from Commonwealth v. Feroli, 407 Mass. 405, 409 (1990).  Here, the prosecutor’s statement emphasized the discrepancies between the defendant’s testimony and the testimony of all the other witnesses.  While the prosecutor’s statement, “there is no corroboration for his version,” is a type of statement to avoid, the argument as a whole cannot be properly characterized as burden-shifting, but, rather, as a fair comment on the credibility of the defendant.  See Commonwealth v. Storey, 378 Mass. 312, 325 (1979), cert. denied, 446 U.S. 955 (1980) (“The prosecutor’s objective, as revealed in the context of [her] closing argument, was simply to defend [her] credibility, and that of [her] case, by pointing out contradictions and inconsistencies in the witness’s testimony”).

d.  Independent knowledge of the truth.  The defendant argues for the first time on appeal that the prosecutor improperly suggested to the jury that she had independent knowledge of the truth when she asserted that the Commonwealth’s witnesses were credible “because they told you what actually occurred.”[4]  As the defendant did not object to this portion of the closing argument, we review the statement for a substantial risk of miscarriage of justice.  See Alphas, 430 Mass. at 13.

“Improper vouching can occur if an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.”  Commonwealth v. Wilson, 427 Mass. 336, 352 (1998).  Here, consideration of the argument as a whole persuades us that the “prosecutor did not imply that [s]he had ‘special knowledge by which [s]he could verify the witness’s testimony.’”  Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 189 (2009), quoting from Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989).  Rather, her statement was part of an appeal to the jury to draw the reasonable conclusion from the witnesses’ conforming testimony that those witnesses should be believed, a proper line of argument where credibility is at issue.  See Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 52 (2003) (prosecutor’s comments did not suggest that she possessed knowledge of facts not contained in evidence).

e.  Misstatement of evidence.  The prosecutor asserted in closing that the defendant’s story was not believable in part because, had he been involved in breaking up a fight as he claimed to have been, “there would be more injuries, there would be more bruising.”[5]  The defendant now contends that, in light of Sargent Talbot’s testimony that bruising takes a day or two to appear, the prosecutor misstated the evidence.  We conclude that there was no error.  ”In closing argument, counsel may argue from the evidence and may argue fair inferences that might be drawn from the evidence.  Counsel also may call on the experience and common knowledge of the jury.  Moreover, it is proper for counsel to use analogy, example and hypothesis as an aid to effective and aggressive argument.”  Commonwealth v. Ridge, 455 Mass. 307, 330 (2009) (citations and quotations omitted).  See Commonwealth v. Donovan, 422 Mass. 349, 357 (1996) (prosecutor has right to argue inferences from evidence favorable to his case).

f.  Use of the term “victim”.  Referring to Ramos and Henriquez, the prosecutor used the term “victim” eleven times in the course of her closing argument.  In view of the judge’s allowance of the defendant’s motion in limine prohibiting the use of the term in favor of “alleged victim,” the prosecutor’s use of the term was error.  Although defense counsel raised objections to certain other portions of the prosecutor’s closing argument, he did not object to her characterization of the witnesses as “victims.”  Therefore, “the proper standard of review is whether the error[] created a substantial risk of a miscarriage of justice.”  Commonwealth v. Letkowski, 469 Mass. 603, 617 (2014).

The absence of an objection also guides our analysis as to whether the lapse was prejudicial to the defendant in the circumstances.  “We consider . . . the lack of objection at trial as ‘some indication that the tone [and] manner . . . of the now challenged aspects of the prosecutor’s argument were not unfairly prejudicial.’”  Dodgson, 80 Mass. App. Ct. at 313, quoting from Commonwealth v. Lyons, 426 Mass. 466, 471 (1998).  “This is especially true, where, as here, contemporaneous objections were made to the prosecutor’s summation.”  Commonwealth v. Walker, 421 Mass. 90, 104 (1995).

Moreover, in the context of the evidence at trial, any risk of a miscarriage of justice was mitigated by the defendant’s stipulation to the fact that Henriquez was stabbed on that occasion by the defendant’s friend, Fernandez.  Thus, Henriquez’s identity as a victim was not in question, only the defendant’s culpability in that attack.  We are confident that the error, in these circumstances, did not create a substantial risk of a miscarriage of justice.

3.  Judge’s instruction on prior inconsistent statements.  The defendant claims that the judge’s instruction on prior inconsistent statements was unclear and failed to provide the jury with a proper understanding of how such statements may be considered.  At trial, defense counsel objected to the judge’s charge limiting the use of prior inconsistent statements to credibility purposes, and requested, instead, an instruction permitting the jury to consider inconsistent statements made to the grand jury for their substantive value.

The judge’s instruction on prior inconsistent statements, though somewhat ambiguous, limits consideration of such statements to credibility purposes:

“If you determine the witness’s prior statement differs significantly from his or her present testimony[,] the prior statement is relevant only as to the witness’s credibility and you may not take it as any proof of any fact contained in it except in the case of a parties [sic] prior statement.”

As a general rule, a trial witness’s prior inconsistent statements are not admissible for their substantive truth.  See Mass. G. Evid. § 613(a)(2) (2015).  However, “[w]hen a trial witness offers testimony that is directly inconsistent with that witness’s testimony before the grand jury, the inconsistent grand jury testimony may be introduced substantively if certain foundational requirements . . . are met.”  Commonwealth v. Santos, 463 Mass. 273, 294 (2012).  See Commonwealth v. Daye, 393 Mass. 55, 75 (1984); Mass. G. Evid. § 801(d)(1)(A) (2015).

Here, defense counsel confronted three of the Commonwealth’s witnesses with grand jury statements that he then sought to have considered substantively.[6]  The defendant asserts that the prior statements have substantive value because they corroborate his account of events.  Accepted for their truth and as substantive evidence, the statements establish that Henriquez was drunk at the time of the attack; he aggressively engaged in a brawl before the defendant arrived on the scene; both the defendant and Fernandez had knives and participated in stabbing Henriquez; besides the defendant and Fernandez, a third man chased Henriquez up the garage ramp; once on the ground, Henriquez was not stabbed again; and, when security guards arrived, the defendant and Fernandez were kicking Henriquez lightly.  None of these statements, considered for their truth as substantive evidence, benefits the defendant’s case.  Consequently, “[o]n the record before us, no prejudicial error arose from the judge’s decision not to instruct the jury that they could consider prior inconsistent statements for their substantive value.”  Commonwealth v. Fritz, 472 Mass. 341, 353 (2015).

Finally, for the first time on appeal, the defendant claims that a series of other, unsworn, prior inconsistent statements should also have been considered substantively, and that the judge’s instruction to the contrary created a substantial risk of miscarriage of justice.[7]  While the defendant is correct in asserting that prior inconsistent statements may properly be considered for their truth if admitted without objection, see Mass. G. Evid. § 613(a)(2), these statements, considered substantively, do not constitute evidence favorable to the defendant.  The conflicts between trial testimony and prior statements served, rather, to focus the jury’s attention on the credibility of the Commonwealth’s witnesses.  In view of this, we discern no risk of miscarriage of justice arising from the judge’s instruction.

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-11954

JEFFREY M. LASHER  vs.  TRICIA LESLIE-LASHER.

March 22, 2016.

Supreme Judicial Court, Superintendence of inferior courts.  Divorce and Separation, Relief from judgment.  Practice, Civil, Relief from judgment.

The petitioner, Jeffrey M. Lasher, was divorced from the respondent, Tricia Leslie-Lasher, pursuant to a judgment of divorce nisi in 2014.  In March, 2015, he filed a motion for relief from judgment, pursuant to Mass. R. Dom. Rel. P. 60 (b) (2) and (3), which was denied by a judge of the Probate and Family Court in May, 2015.

The petitioner then filed a petition in the Appeals Court, pursuant to G. L. c. 231, § 118, first par., seeking review of that order.^[1]  He alleged both that the respondent had been untruthful about her financial resources in the divorce proceedings and that the Probate and Family Court judge should have recused himself from ruling on the postjudgment motion.  A single justice of the Appeals Court initially remanded the case to the Probate and Family Court judge for clarification and findings regarding the status of the petitioner’s recusal motion and the judge’s ruling on it.  After the judge issued his findings,[2] the single justice denied the petition and later denied a motion for reconsideration.  A second single justice of the Appeals Court struck the petitioner’s notice of appeal.  See McMenimen v. Passatempo, 452 Mass. 178, 189 (2008).

The petitioner subsequently filed a substantially similar petition in the county court, pursuant to G. L. c. 211, § 3.  A single justice of this court denied the petition.  After allowing the petitioner’s motion for reconsideration, the single justice again denied the petition.  We affirm the judgment of the single justice of this court.

It is incumbent on a party seeking exercise of this court’s extraordinary power of general superintendence under G. L. c. 211, § 3, to demonstrate the absence or inadequacy of alternative means of redress.  See Russell v. Nichols, 434 Mass. 1015, 1016 (2001); McGuiness v. Commonwealth, 420 Mass. 495, 497 (1995), and cases cited.  In this case, the petitioner failed to allege, much less demonstrate, that the Probate and Family Court judge’s order denying relief from the divorce judgment could not adequately be addressed through the ordinary appellate process, in an appeal to a panel of the Appeals Court from the postjudgment order.[3]  See, e.g., Raheman v. Raheman, 59 Mass. App. Ct. 915, 917 (2003), cert. denied, 541 U.S. 1013 (2004) (reviewing postjudgment ruling denying motion for relief from judgment); Rezendes v. Rezendes, 46 Mass. App. Ct. 438 (1999) (same).  For that reason, the single justice neither erred nor abused her discretion in denying the G. L. c. 211, § 3, petition.

Judgment affirmed.

Jeffrey M. Lasher, 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-11605

COMMONWEALTH  vs.  RICHARD M. BOUCHER, JR.

Plymouth.     September 11, 2015. – March 23, 2016.

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

Homicide.  Assault and Battery by Means of a Dangerous Weapon.  Armed Assault with Intent to Murder.  Practice, Criminal, Capital case, Instructions to jury.  Intoxication.  Mental Impairment.  Intent.

Indictments found and returned in the Superior Court Department on July 2, 2010.

The cases were tried before Raymond P. Veary, Jr., J.

Leslie W. O’Brien for the defendant.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

Chauncey B. Wood, Paul E. Nemser, & Joshua M. Daniels, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

DUFFLY, J.  The defendant was convicted of murder in the first degree, G. L. c. 265, § 1, on a theory of extreme atrocity or cruelty in the May 27, 2010, shooting death of James Tigges at a party in Plymouth.^[1]  The defendant also was convicted of armed assault with intent to murder, and assault and battery by means of a dangerous weapon, in the shooting of Tigges’s friend, Jackson Duncan, who was paralyzed from the chest down when a bullet severed his spinal cord.^[2]

On appeal, the defendant contends that the judge’s instructions as to the manner in which the jury could consider evidence of mental impairment by intoxication precluded them from considering that evidence on the question whether the defendant acted with extreme atrocity or cruelty.  Specifically, he contends that the instructions improperly limited the jury’s consideration of that evidence to the elements of murder in the first and second degree requiring intent or knowledge, such as premeditation or malice, whereas conviction of murder in the first degree on a theory of extreme atrocity or cruelty does not require either that a defendant know his or her acts are extremely atrocious or cruel, or that he or she intend them to be.  In the alternative, the defendant suggests that this court should adopt a specific intent requirement for murder committed with extreme atrocity or cruelty, as was proposed in concurring opinions in Commonwealth v. Riley, 467 Mass. 799, 828-829 (2014) (Duffly, J., concurring), andCommonwealth v. Berry, 466 Mass. 763, 777-778 (2014)(Gants, J., concurring).  We decline the invitation to adopt a new formulation of extreme atrocity or cruelty at this time.  The defendant asks also that we exercise our extraordinary power pursuant to G. L. c. 278, § 33E, and reduce his degree of guilt to murder in the second degree.

For the reasons that follow, we conclude that there was no error requiring reversal, and we see no reason to grant relief under G. L. c. 278, § 33E.

1.  Background.  The jury could have found the following.  Early on the evening of May 26, 2010, Adam Egan was in his apartment in Plymouth with a friend, when the two decided to telephone some other friends and invite them over.  Tigges, Duncan, the defendant, and another friend of his were among the guests.  Eventually, the party grew to approximately twenty people, in their late teens or early twenties, all of whom were drinking alcohol.  The defendant, like most of the guests, was drinking beer.  Some of the guests played a drinking game called “beer pong,” but no one testified to having seen the defendant participate in the beer drinking game.  Two witnesses testified that, although the defendant had been drinking, he “seemed normal,” and was acting no differently from his manner on previous occasions when they had been at parties with him.  The defendant was not slurring his words, nor was he stumbling or falling over.

At one point, while the defendant was in the kitchen with Duncan and another guest, the defendant dropped a gun; he said “oh shit” and picked it up.  When Duncan inquired why the defendant had the gun and what he would do if he got caught with it, the defendant said that he would have no problem shooting a police officer “if he had to.”  Duncan thought the gun was a “Glock,” and he could see that it was loaded.  The defendant told him, in a manner that appeared to be “kinda cocky” or “bragging,” that the bullets were hollow tip.^[3]  The presence of the gun in the apartment made Duncan “uncomfortable,” and he decided to leave the party.

As Duncan and Tigges were leaving through the back door, the defendant removed a bottle of beer from Duncan’s back pocket; Duncan’s cousin, Mikayla Plaisted, took the bottle from the defendant and handed it back.  Duncan and Tigges continued walking outside to the back yard, with Plaisted close behind.  The defendant followed them, making comments; he called Tigges and Duncan names like “pussy” and “bitch,” and asked if Duncan thought he was a “tough guy.”

The defendant was somewhere between four and fifteen feet from Tigges and Duncan when he began to shoot at them.^[4]  Duncan was shot first; Tigges jumped in front of him as the shots were being fired.  The defendant continued to fire until the gun made several clicking sounds.^[5]  He then ran from the scene.  Plaisted chased him for some distance, shouting, “I know who you are, you shot my cousin, you’re not going to get away with it, they’re going to find you.”  The defendant turned around, looked at her, raised his hand as though it were a gun, and smiled, before continuing to run.

Tigges was shot four times, in the abdomen and left leg.  He remained conscious after he was shot; he was moaning and grimacing and appeared to be in a great deal of pain.  He said “please don’t touch me,” “it hurts,” and that it hurt “everywhere.”  Tigges was transported to a local hospital, and then to a Boston hospital, where he died a few hours later as a result of his wounds.  Duncan was shot once in the chest; the bullet traveled through his body and transected his spinal cord.  Duncan survived, but was paralyzed from the chest down.  He was one of the Commonwealth’s key witnesses at trial.

A trained police canine was dispatched to the scene shortly after the shootings, at approximately 1:20 A.M. on the morning of May 27, 2010, in an effort to locate the defendant.  The canine tracked to a house several blocks away, but the defendant was not found inside and no physical evidence was recovered.^[6]  He was apprehended approximately two weeks later, at a fast food restaurant in another town.

2.  Discussion.  a.  Instruction on diminished capacity.  The defendant argues that the judge’s instruction on diminished capacity was erroneous.  He claims that the instruction improperly limited the jury’s consideration of the evidence of his intoxication and, consequently, did not allow the jury to consider evidence of his diminished capacity from the consumption of alcohol with reference to whether the shooting was committed with extreme atrocity or cruelty.^[7]  Specifically, the defendant maintains that because the instruction on intoxication limited the jury’s consideration of the evidence of intoxication to his knowledge and intent, they would not have been able to consider his level of intoxication with reference to whether the killing was committed with extreme atrocity or cruelty because, under current law, to convict a defendant of murder in the first degree on a theory of extreme atrocity or cruelty, the Commonwealth is not required to prove that the defendant either knew his or her acts were extremely atrocious or cruel, or intended that they be so.

We do not agree with the defendant’s view of these instructions.  The instructions correctly described the elements of murder in the first degree on the theory of extreme atrocity or cruelty.  The judge properly instructed the jury on the existing state of the law, and the factors set forth in Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983) (Cunneen), that they were to consider in determining whether the killing was committed with extreme atrocity or cruelty:  “indifference to or taking pleasure in the victim’s suffering, consciousness and degree of suffering of the victim, extent of physical injuries, number of blows, manner and force with which delivered, instrument employed, and disproportion between the means needed to cause death and those employed.”  The judge also instructed properly that “proof of malice aforethought is the only requisite mental intent for a conviction of murder in the first degree based on murder committed with extreme atrocity or cruelty,” id., and that “murder committed with malice aforethought may be found to have been committed with extreme atrocity or cruelty, even though the murderer did not know that his act was extremely atrocious or cruel,” id., quoting Commonwealth v. Monsen, 377 Mass. 245, 253 (1979).  See, e.g., Commonwealth v. Martinez, 437 Mass. 84, 91 (2002).  The judge correctly explained that “[t]he inquiry focuses on the defendant’s actions in terms of the manner and means of inflicting death and on the resulting effect on the victim.”

After giving the instruction on extreme atrocity or cruelty, the judge then instructed on diminished capacity by voluntary consumption of alcohol.  The challenged portion of that instruction is as follows:

“I now want to turn to the issue of diminished capacity.  Whenever the defendant’s knowledge or intent must be proved, the defendant’s culpability rests upon the Commonwealth’s proof of such knowledge or intent beyond a reasonable doubt.  In other words, the Commonwealth must prove beyond a reasonable doubt that the defendant had the required knowledge or intent in order to prove that he committed the crime.  Whenever the Commonwealth must prove the defendant’s intention to do something, you should consider any credible evidence of the effect upon the defendant of his consumption of alcohol in determining whether the Commonwealth has met its burden of proof.  Likewise, whenever the Commonwealth must prove the defendant’s knowledge of any facts or circumstances, you should consider any credible evidence of the effect upon the defendant of his consumption of alcohol in determining whether the Commonwealth has met its burden.

“More particularly, you should consider any credible evidence of the effect upon the defendant of his consumption of alcohol in determining, one, whether [the defendant] deliberately premeditated the killing of James Tigges.  That is whether he thought before he acted and whether he reached the decision to kill after reflection, at least for a short period of time.  Two, whether [the defendant] intended to kill or to cause grievous bodily harm to James Tigges or was aware that his conduct created a plain and strong likelihood that Mr. Tigges’s death would result from his conduct.  And three, whether [the defendant] acted in a cruel or atrocious manner in causing the death of James Tigges.

“In considering such evidence, you should consider it along with all other credible evidence relevant to the defendant’s intent and/or knowledge.  I reiterate, whenever the Commonwealth must prove that a defendant intended to do something or had knowledge of certain facts or circumstances, in order to prove a crime, such as first or second‑degree murder, you should consider any credible evidence of the effect of his consumption of alcohol in determining whether the Commonwealth has met its burden of proving the defendant’s intent or knowledge beyond a reasonable doubt.”

The defendant contends that, in context, this instruction, with its frequent references to his knowledge or intent, would have suggested to the jury that they could consider evidence of intoxication only to establish the elements of the offense that require intent or knowledge, such as premeditation and malice.  Under this view, the jury would have been precluded from considering evidence of the defendant’s impairment from intoxication as it related to all of the Cunneen factors, because “intent and knowledge are not aspects of extreme atrocity or cruelty.”  See Commonwealth v. Rutkowski, 459 Mass. 794, 797-798 (2011), citing Commonwealth v. Rosenthal, 432 Mass. 124, 130 (2000).

When the theory of extreme atrocity or cruelty is in play, an instruction on voluntary intoxication that links consideration of intoxication only to a defendant’s intent or knowledge, without also explaining that the jury may consider intoxication in relation to whether the defendant committed the killing with extreme atrocity or cruelty, is in error.  See Commonwealth v. Howard, 469 Mass. 721, 750 (2014); Commonwealth v. Gonzalez, 469 Mass. 410, 422 (2014).  An instruction on voluntary intoxication also is erroneous if it is unclear from the context in which it is given that the jury may consider whether a defendant’s intoxication negates a finding of extreme atrocity or cruelty.  See Commonwealth v. Rutkowski, supra at 798 (“[T]he context in which the instruction was given, immediately after the instruction on murder in the second degree, suggested that mental impairment related only to the issue of malice. . . .  It should have been made clear to the jury that they could consider evidence of mental impairment on the specific question whether the murder was committed with extreme atrocity or cruelty”).

Here, however, the instruction correctly conveyed that the effect upon the defendant of his consumption of alcohol was relevant to the Commonwealth’s burden to prove that the defendant acted in a cruel or atrocious manner.  Moreover, after the jury requested clarification as to the instructions on murder in the first degree and voluntary intoxication, the judge provided them with a written document containing the language that he had used previously, formatted in such a way as to show that “credible evidence of the effect upon the defendant of his consumption of alcohol” should “[m]ore particularly” be considered in reaching a determination whether the defendant “acted in a cruel or atrocious manner in causing the death of James Tigges.”  We previously have concluded that a similar instruction was not erroneous.  See Commonwealth v. Szlachta, 463 Mass. 37, 49 (2012) (not error to instruct that jury “may consider evidence of impairment when considering whether [a defendant] acted in a cruel or an atrocious manner causing the death of [a victim]“).  See also Commonwealth v. Oliveira, 445 Mass. 837, 848-849 (2006).

b.  Request that jury be instructed to consider knowledge or intent.  The defendant suggests in the alternative that we should consider adding an additional element of knowledge or intent in cases involving extreme atrocity or cruelty, above that required to prove malice.  In his proposed jury instructions, while acknowledging that it was inconsistent with the current state of the law, defense counsel requested that, as suggested by language in Commonwealth v. Gould, 380 Mass. 672, 686 & n.16 (1980) (Gould), the jury should be instructed that they “may consider what effect, if any, the defendant’s impaired capacity had on his ability to appreciate the consequences of his choices” in relation to having acted with extreme atrocity or cruelty.^[8]  Before us, the defendant’s argument expands upon his request for a Gould instruction.  The defendant contends that the jury should be instructed that when “a conviction is based on the theory of extreme atrocity or cruelty, it must be proven that the defendant intended that the consequences of his actions be extremely atrocious or cruel.”

In our decisions following Gould, however, we have reiterated that there is no requirement of intent, beyond the requirement of malice needed for all convictions of murder, in order to convict a defendant on a theory of extreme atrocity or cruelty.  Thus, the instruction as given complies with the current state of the law and was not erroneous.  See, e.g., Commonwealth v. Szlachta, supra at 47 (although Gould appeared to suggest “that the court was introducing a new mens rea element . . . our jurisprudence following Gould clearly has rejected this suggestion”); Cunneen, supra at 227 (“proof of malice aforethought is the only requisite mental intent for a conviction of murder in the first degree based on murder committed with extreme atrocity or cruelty”).

3.  Review under G. L. c. 278, § 33E.  The defendant also asks us to review his murder conviction under G. L. c. 278, § 33E, and reduce the degree of guilt to murder in the second degree.  We have conducted a review of the entire record pursuant to G. L. c. 278, § 33E, and we see no reason to set aside or reduce the defendant’s conviction.  See Commonwealth v. LeBeau, 451 Mass. 244, 261-262 (2008).

Judgments affirmed.

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14-P-1392                                       Appeals Court

COMMONWEALTH  vs.  LUIS SANCHEZ.

No. 14-P-1392.

Bristol.     February 5, 2016. – March 23, 2016.

Present:  Green, Hanlon, & Henry, JJ.

Controlled Substances.  Search and Seizure, Curtilage, Warrant.  Witness, Privilege.  Practice, Criminal, Motion to suppress, Required finding, Assistance of counsel, Instructions to jury.  Evidence, Constructive possession.

Indictment found and returned in the Superior Court Department on September 28, 2012.

A pretrial motion to suppress evidence was heard by Renée P. Dupuis, J., and the case was tried before Robert J. Kane, J.

Brad P. Bennion for the defendant.

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

     GREEN, J.  Among various challenges to his conviction of trafficking in one hundred grams or more of “crack” cocaine, in violation of G. L. c. 94C, § 32E, the defendant contends that a search warrant authorizing a search of his apartment did not extend to a free-standing shed in the backyard outside the three-unit apartment building.[1]  We conclude that the motion judge correctly concluded that the shed was a part of the curtilage of the apartment, so that the search authorized by the warrant properly extended to the shed.  Discerning no merit in the defendant’s other claims of error, we affirm.

Background.  We summarize the findings of the motion judge on the defendant’s motion to suppress, reserving other facts for our discussion of the defendant’s other claims.  On August 28, 2012, New Bedford police Officer Jason Gangi and other members of the New Bedford police department executed a search warrant authorizing a search of the third-floor apartment at 101 Coffin Avenue and any persons present.  The building at 101 Coffin Avenue is a multi-family dwelling consisting of three apartments.  Police set up surveillance at the target location.  Two vehicles approached the location, and the defendant was a passenger in one of the vehicles.  Police stopped the defendant and obtained a set of keys from him.[2]  Using a key from the set, police opened the door to the third-floor apartment.  Within minutes after gaining entry to the apartment, Officer Gangi went to the backyard to search.  The entire backyard was fenced.  While in the yard, Officer Gangi discovered a locked shed and, using one of the keys on the key ring obtained from the defendant, unlocked a padlock on the shed door and gained access to the interior of the shed.  Inside the shed, Officer Gangi observed a black BMW motor vehicle, a dirt bike, some tools, and a shopping bag.  Officer Gangi determined that another key on the key ring obtained from the defendant fit the BMW.  Officer Gangi also found and seized a substantial quantity of cocaine hidden above a ceiling panel within the shed.

Among other items found in and seized from the third-floor apartment were rent receipts indicating that the defendant rented the shed from the owner of the apartment building.  In the affidavit in support of the application for the search warrant Officer Gangi averred that he confirmed that the utilities for the third-floor apartment were in the names of the defendant and Ana Perez.[3]  The affidavit also related information obtained from a confidential informant regarding sales of cocaine by the defendant from the third-floor apartment, and describing the informant’s personal observation of cocaine packaged for sale in the apartment within the seventy-two hours preceding the warrant application.

Search of the shed.  “The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself.”  Commonwealth v. McCarthy, 428 Mass. 871, 873 (1999), quoting from United States v. Dunn, 480 U.S. 294, 300 (1987).  “When used in the Fourth Amendment context, curtilage helps to define those areas that the police generally cannot search without a warrant.  In the present context, however, curtilage serves a different function — it helps to define where the police can search pursuant to a warrant.”  Commonwealth v. McCarthy, supra at 874.  In Dunn, the United States Supreme Court set out four factors to be considered when deciding whether a particular area is within the curtilage of a particular home:  ”(1) the proximity of the area to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observations by people passing by.”  Commonwealth v. McCarthy, supra.

The Dunn factors support the motion judge’s conclusion that, here, the shed is a part of the curtilage of the third-floor apartment.  The shed is within the backyard immediately adjacent to the building in which the apartment is located.  See Commonwealth v. Murphy, 353 Mass. 433, 436 (1968).  The yard itself is enclosed by a fence.  Most importantly, the defendant rented the shed from the building owner, and restricted access to it by means of the padlock he placed on the door.  The defendant accordingly enjoyed exclusive access to, and use of, the shed, at least in comparison to the occupants of the other two apartments in the building, or other members of the public.[4]  See Commonwealth v. Escalera, 462 Mass. 636, 648 (2012); Commonwealth v. Pierre, 71 Mass. App. Ct. 58, 63 (2008).  See also Commonwealth v. Thomas, 358 Mass. 771, 774-775 (1971) (emphasizing significance of exclusive control in identifying areas of urban apartment building outside apartment unit that may be considered part of apartment’s curtilage).  Compare Commonwealth v. McCarthy, supra at 875 (parking space within shared parking lot in multi-unit apartment complex not part of apartment’s curtilage).  We discern no error in the conclusion by the motion judge that the shed was part of the curtilage of the defendant’s apartment; thus the warrant authorizing search of the apartment also authorized search of the shed.

Other issues.  The defendant’s remaining claims require only brief discussion.  We discern no abuse of discretion by the trial judge in his conclusion that the defendant’s brother had a privilege under the Fifth Amendment to the United States Constitution not to testify for the prosecution, as his testimony could have implicated him as a potential coventurer with the defendant.  The defendant’s claim of prejudice from the judge’s conclusion only illustrates its correctness; the defendant claims that he was deprived of the opportunity, as part of his third-party culprit theory of defense, to establish through cross-examination of his brother that the brother had access to the shed and accordingly that the drugs seized from the garage could have been his.[5]  There is likewise no merit in the defendant’s claim that his trial counsel was ineffective by reason of his failure to renew his motion for a required finding of not guilty, first raised at the close of the Commonwealth’s case, following the close of all the evidence.[6]  See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).  Put simply, nothing in the defendant’s case caused the Commonwealth’s case to deteriorate.[7]

Finally, there is no merit to the defendant’s several claims of error in the judge’s jury instructions.  None of the defendant’s claims was preserved by objection at trial; we accordingly consider whether any error created a substantial risk of a miscarriage of justice.[8]  See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).  Contrary to the defendant’s contention, the judge did not in his preliminary instruction describing the indictment remove from the jury’s consideration an essential element of fact by instructing that the defendant in fact possessed the drugs seized from the shed.  Instead, the judge merely explained initially that the indictment charged the defendant with possessing the drugs, and clearly went on to explain that the question before the jury was whether the defendant possessed the drugs.[9]  Likewise unavailing is the defendant’s challenge to an analogy used by the trial judge in his final instructions to explain the concept of constructive possession; the analogy was apt, and no undue prejudice nor potential for confusion flowed from the fact that (similar to the circumstances of the present case) the analogy used actual possession of keys to illustrate constructive possession of an item held in another area.[10]  Finally, there was nothing improper about the judge’s instruction that if the jury found that the defendant constructively possessed the drugs, it did not matter whether someone else jointly possessed the drugs with him.  The instruction was a correct statement of the law.  See Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting from Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984) (“Possession implies ‘control and power,’ . . . exclusive or joint . . . , or, in the case of ‘constructive possession,’ knowledge coupled with the ability and intention to exercise dominion and control”).  There was no error in the judge’s instruction, and hence no substantial risk of a miscarriage of justice.

Judgment affirmed.

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