NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-742                                        Appeals Court

CITY OF SPRINGFIELD  vs.  UNITED PUBLIC SERVICE EMPLOYEES UNION.

No. 15-P-742.

Hampden.     February 11, 2016. – March 25, 2016.

Present:  Kafker, C.J., Rubin, & Agnes, JJ.

Arbitration, Collective bargaining, Authority of arbitrator, Judicial review.  Employment, Sexual harassment, Termination.  Public Policy.  Public Employment, Collective bargaining, Termination, Reinstatement of personnel.  Civil Service, Termination of employment, Reinstatement of personnel.

Civil action commenced in the Superior Court Department on January 2, 2014.

The case was heard by John S. Ferrara, J.

Gordon D. Quinn for the plaintiff.
Lan T. Kantany for the defendant.

KAFKER, C.J.  The issue presented is whether an arbitrator exceeded her authority when she ordered a terminated employee reinstated without loss of pay or other rights, even though she found that he had engaged in conduct amounting to sexual harassment.  Because the mitigating circumstances the arbitrator identified supported her determination that the employer lacked just cause for termination, and her order does not preclude appropriate remedial action to address the employee’s sexual harassment, we conclude that her award does not offend public policy or require a result prohibited by statute.  We therefore affirm the Superior Court judge’s decision confirming the validity of the award.

1.  Background.  The city of Springfield (city) discharged Gregory Ashe, a long-time employee, following an investigation and hearing after a coworker complained of sexually inappropriate conduct.  Ashe, through his union, grieved the city’s decision to terminate his employment.  Pursuant to the parties’ collective bargaining agreement (CBA), the case was submitted to an arbitrator.  The parties presented the following question:  ”Was the termination of the Grievant Gregory Ashe supported by just cause?  If not, what shall be the remedy?”  After two days of hearings, the arbitrator issued her award.  She determined that much of the alleged harassing conduct did occur, but found that mitigating circumstances meant there was not just cause for termination.  She concluded:  ”As a remedy, the Grievant is entitled to be reinstated to his position without loss of compensation or other rights.”

The city sought to vacate the award in the Superior Court under G. L. c. 150C, § 11.  In its appeal, the city argued that the arbitrator exceeded her authority under the CBA by reinstating the employee in direct violation of the public policy and statutory requirements governing sexual harassment.  The judge, in a written decision, resolved the case on opposing dispositive motions, denying the city’s appeal and affirming the award.

The arbitrator’s award.  The evidence before the arbitrator and the facts as she found them are as follows.  The grievant, Gregory Ashe, is a twenty-two year employee of the Springfield office of housing (housing office), where he worked as a messenger, answering telephones and making deliveries.  Ashe was a member of the United Public Service Employees Union (union), the collective bargaining unit, at the time of his discharge.  Prior to his discharge, he had a “blemish-free employment” record with no disciplinary history.

The arbitrator found that the forty-three year old Ashe has significant physical and mental health problems.  He suffers from cerebral palsy, epilepsy, and depression.  Clinical evaluators determined that Ashe has a “mildly impaired overall [intelligence quotient] of 74.”

The city based its decision to terminate Ashe on an incident occurring on December 12, 2012.  On that date, Ashe was working at the main desk in the housing office.  He received a telephone call that apparently upset him, and he went into Keleigh Waldner’s office with a “red face.”  Waldner is another employee of the housing office, and she regularly interacted with Ashe throughout the course of their employment.  That interaction included his bringing her food and gifts and following her around the office.  He was described as having a “crush” on her.  The arbitrator found, by a preponderance of the evidence, that he

“told Waldner that ‘the fucking pussy called again,’ asked Waldner about the meaning of the word ‘pussy [after she had previously told him not to use such language],’ referenced ‘not getting any,’ grabbed his crotch on the outside of his pants, put his hand inside his pants, started to unbuckle his belt, and said ‘sorry babe’ as Waldner exited the room.”

Geraldine McCafferty, the city’s director of housing and Waldner’s supervisor, testified during the arbitration hearing that Waldner was crying and upset after her encounter with Ashe.  She also testified that Ashe told her minutes after the encounter that he had done “something bad.”

The arbitrator, in her factual findings, credited Waldner’s account of the event in question and found Ashe’s “blanket denials . . . unpersuasive, and self-serving.”  The arbitrator further found that “[w]hile [Ashe’s] actions may have been extremely upsetting to Waldner, she was aware of [Ashe’s] mental and physical challenges.”

The arbitrator concluded that Ashe’s conduct “was a single, short-lived episode of anti-social behavior by an employee who posed no reasonable threat to others.”  She determined that his conduct was “caused by lack of medication and profound depression and explained, in part, by developmental delays.”  She also concluded that Ashe’s “pliant demeanor makes him an appropriate candidate for progressive discipline.”  The arbitrator concluded that Ashe’s termination “was an excessive reaction in light of [his] long and problem-free work history and his developmental delays.”

Finally, the arbitrator determined that Ashe was subjected to disparate treatment.  The city had declined to terminate another employee who had, according to the arbitrator, “engaged in a six-month course of sexual harassment directed at a co-worker” and received only a reprimand.

2.  Discussion.  ”Consistent with policy strongly favoring arbitration . . . an arbitration award is subject to a narrow scope of review.”  Lynn v. Lynn Police Assn., 455 Mass. 590, 596 (2010), quoting from Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990).  We uphold an arbitration award even if “it is wrong on the facts or the law, and whether it is wise or foolish, clear or ambiguous.”  Boston v. Boston Police Patrolmen’s Assn., 443 Mass. 813, 818 (2005).

We do, however, vacate an award if “[a]n arbitrator exceeds his authority by granting relief beyond the scope of the arbitration agreement . . . or by awarding relief prohibited by law.  Arbitration, it is clear, may not award relief of a nature which offends public policy or which directs or requires a result contrary to express statutory provision.”  Lynn Police Assn., supra (quotations omitted).  See G. L. c. 150C, § 11(a)(3), inserted by St. 1959, c. 546, § 1 (“Upon application of a party, the superior court shall vacate an award if . . . the arbitrators exceeded their powers or rendered an award requiring a person to commit an act or engage in conduct prohibited by state or federal law”).

The city contends that the arbitrator erred in two respects.  First, the city contends that the arbitrator violated public policy in not upholding the employee’s termination. Second, the city argues that the arbitrator’s remedy — full reinstatement without loss of compensation or any other rights

– thereby precluded the city from taking remedial action required by the State and Federal law governing sexual harassment.  The union disagrees with both contentions, arguing that termination was not required on these facts and that the arbitrator’s award does not leave the city without the authority to order appropriate remedial action such as counseling or training to address and correct the employee’s misconduct.  We agree that termination is not required here and accept the union’s position that the city retains the right and responsibility to order counseling and/or training to address the employee’s sexual harassment.

We first address the city’s contention that the award violates public policy.  “There is a three-pronged test we apply to determine whether public policy requires the court to vacate an arbitrator’s award that has ordered the reinstatement of a public employee.”  Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 451 Mass. 698, 700 (2008).  First, the public policy must be well defined and dominant, and determined from laws and legal precedents, not general consideration of the public interest.  Massachusetts Hy. Dept. v. American Fedn. of State, County & Mun. Employees, 420 Mass. 13, 16 (1995).  Second, the “disfavored conduct” must be “integral to the performance of employment duties.”  Id. at 17 (quotation omitted).  Third, the employee’s conduct, as found by the arbitrator, must have required dismissal, and a lesser sanction would frustrate public policy.  Boston Police Patrolmen’s Assn., 443 Mass. at 818-819.  If all three parts of the test are satisfied, the award violates G. L. c. 150C, § 11(a)(3).  See Sheriff of Suffolk County, supra at 700-701.

The first two requirements are satisfied here.  First, Massachusetts maintains a well-defined and dominant public policy disfavoring sexual harassment, as is evident from the statute prohibiting it and the case law applying the statute.  See College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 162 (1987); Melnychenko v. 84 Lumber Co., 424 Mass. 285, 290 (1997).  We also conclude that Ashe’s conduct, as determined by the arbitrator, constitutes sexual harassment prohibited by Massachusetts law and public policy.

The union makes much of the fact that the arbitrator did not explicitly find that Ashe’s conduct amounted to sexual harassment.  We reject the union’s argument.  Courts need not look for specific legal labels to determine if the arbitrator’s findings constitute prohibited conduct.  See, e.g., School Dist. of Beverly v. Geller, 435 Mass. 223, 231 (2001) (finding that employee engaged in conduct unbecoming teacher despite award’s lack of specific language to that effect, based on findings made in award).  We conclude that the facts the arbitrator found here constitute sexual harassment.  Despite his physical and mental limitations, Ashe approached a woman who was the focus of his attentions — a “crush” in the words of one witness — and grabbed his crotch, put his hand inside his pants, and started unbuckling his belt while referring to the fact that he was “not getting any.”  This constitutes sexually harassing conduct.  See Melnychenko, supra at 290 (“any physical or verbal conduct of a sexual nature which is found to interfere unreasonably with an employee’s work performance through the creation of a humiliating or sexually offensive work environment can be sexual harassment under G. L. c. 151B”).  The woman he harassed was understandably upset and concerned despite her knowledge of Ashe’s physical and mental limitations.

Second, the conduct at issue here is integral to Ashe’s job duties.  His work as a messenger requires him to interact with countless other city employees, both in person and over the telephone.  His inappropriate remarks and physical gestures were precisely the kind of offensive workplace interaction the policy against sexual harassment seeks to prevent.  See Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986); College-Town, supra at 162 (explaining policy rationale for prohibition of sexual harassment that results in hostile work environment).

Nevertheless, the third element of the public policy exception is not met on the record before us.  Ashe’s conduct here, as found by the arbitrator, did not require dismissal because a lesser sanction, progressive discipline, would not violate public policy.  In light of her findings regarding his significant mental and physical limitations, his pliant demeanor, and his twenty-two year problem-free work history, Ashe’s misconduct, despite its severity, did not require termination.  It was within the arbitrator’s ample authority to conclude that these factors made progressive discipline rather than termination an appropriate remedy.  The CBA, which she interpreted, incorporates the city’s sexual harassment policy, and clearly contemplates progressive discipline; both parties stipulated to the city’s long history of using progressive discipline.  We therefore do not agree with the city that public policy requires termination on these facts.  Compare Massachusetts Hy. Dept., supra at 20-21 (public policy implicated but did not require termination), and Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601, 606 (2000) (public policy did not require dismissal of two employees who used investigatory access to view tax records of local celebrities not under investigation), with Boston Police Patrolmen’s Assn., supra at 819 (public policy required discharge of police officer who “falsely arrested two individuals on misdemeanor and felony charges, lied in sworn testimony and over a period of two years about his official conduct, and knowingly and intentionally squandered the resources of the criminal justice system on false pretexts”).

We next turn to the city’s second argument:  whether the arbitrator’s full reinstatement award, without loss of compensation or other employment rights, violated statutory requirements in G. L. c. 151B and Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2012) (Title VII), mandating that sexual harassment be addressed and corrected.  As the Supreme Judicial Court has explained, “[a]rbitration . . . may not ‘award relief of a nature . . . which directs or requires a result contrary to express statutory provision.’”  Lawrence v. Falzarano, 380 Mass. 18, 28 (1980), quoting from Eager, The Arbitration Contract and Proceedings § 121.6 (1971).

We agree with the city that its authority to take corrective action against Ashe was substantially limited by the award, and that additional suspension, loss of pay, or loss of other employment rights for the December 12, 2012, incident would violate “industrial double jeopardy” provisions.  See Zayas v. Bacardi Corp., 524 F.3d 65, 69 (1st Cir. 2008) (once initial sanction is final, subsequent sanction would violate industrial double jeopardy principles); Elkouri & Elkouri, How Arbitration Works ch. 15.3.F.vii (7th ed. 2012).  We do not, however, for the reasons explained below, interpret the award to preclude appropriate remedial action required by statute, including training and counseling, to address Ashe’s sexual harassment.

General Laws c. 151B requires an employer to take some remedial action in cases of confirmed sexual harassment.  See College-Town, supra at 162 (employer who is notified of sexual harassment in workplace and fails to take adequate remedial action violates G. L. c. 151B, § 4); Modern Continental/Obayashi v. Massachusetts Commn. Against Discrimination, 445 Mass. 96, 104-108 (2005) (holding that employer who failed to take remedial action could be held liable for sexual harassment of employee by subcontractor’s employees); Trinh v. Gentle Communications, LLC, 71 Mass. App. Ct. 368, 376 (2008) (“An employer may be found directly liable for discrimination under G. L. c. 151B, § 4, if it is notified of sexual harassment in its workplace and fails to take adequate remedial action”).  See also Massachusetts Commission Against Discrimination Guidelines: Sexual Harassment in the Workplace § VI.6 (2002) (“When an employer concludes that sexual harassment has occurred, the employer must take prompt remedial action designed to end the harassment and prevent future harassment.  What constitutes appropriate remedial action depends upon the circumstances”).

Title VII similarly requires employers to take remedial action when they become aware that one of their employees has engaged in sexual harassment.  See 42 U.S.C. § 2000e; Faragher v. Boca Raton, 524 U.S. 775, 807 (1998) (holding that employers are vicariously liable for harassment of employees unless employer “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” [emphasis supplied]).  See also 29 C.F.R. § 1604.11(d) (1999) (imposing responsibility on employer for Title VII violations if it “knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action”).

We thus recognize that an arbitration award that precluded the city from addressing and correcting Ashe’s sexual harassment might violate the State and Federal statutes.  The arbitrator here, however, did not expressly go that far.  We also interpret the arbitrator’s decision as avoiding such a statutory violation.  Cf. Starr v. Fordham, 420 Mass. 178, 192 (1995), quoting from Restatement (Second) of Contracts § 203(a) (1981) (“an interpretation which gives a reasonable, lawful, and effective meaning . . . is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect”); Lynn Police Assn., 455 Mass. at 599 (“The arbitrator’s order is therefore not invalid and, in keeping with general principles of avoiding interference with municipal managerial prerogative, appropriately leaves the manner of payment . . . to the city’s discretion” [citation omitted]).  The union does not argue that the award prohibits all measures that would satisfy the statutory remediation requirement here.[1]  The union contends (and concedes) that the city remains free, for example, to provide Ashe with counseling and training regarding his sexual harassment.  In the absence of any argument to the contrary, we conclude that providing such required counseling and training does not constitute a loss of employment rights in violation of the arbitration award.[2]  We therefore interpret the award as preserving these rights and responsibilities and avoiding a result contrary to G. L. c. 151B and Title VII’s requirements mandating appropriate actions to address and prevent sexual harassment.

We affirm the Superior Court decision confirming the arbitration award.

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-11972

SJC-11973

COMMONWEALTH  vs.  JEMAUL R. OLIVEIRA

(and a companion case[1]).

Bristol.     January 8, 2016. – March 28, 2016.

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

Constitutional Law, Search and seizure.  Search and Seizure, Motor vehicle, Inventory, Impoundment of vehicle.

Complaints received and sworn to in the New Bedford Division of the District Court Department on March 19, 2013.

Pretrial motions to suppress evidence were heard by Kathryn E. Hand, J.

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

Yul-mi Cho, Assistant District Attorney, for the Commonwealth.

Patrick Levin, Committee for Public Counsel Services, for Jemaul R. Oliveira.

Christopher DeMayo for Mitchell T. Violet.

GANTS, C.J.  The interlocutory appeal in these companion cases requires us to examine whether it was reasonable for the police to impound a vehicle lawfully parked in a department store lot and conduct an inventory search of the vehicle after the authorized driver of the vehicle was arrested for shoplifting.  We conclude that where the driver had offered the police an alternative to impoundment that was lawful and practical under the circumstances, it was unreasonable and thus unconstitutional to impound the vehicle and conduct an inventory search.  We therefore affirm the motion judge’s allowance of the defendants’ motions to suppress the fruits of the inventory search.

Background.  The defendants, Mitchell T. Violet and Jemaul R. Oliveira, were charged with shoplifting by concealing merchandise, in violation of G. L. c. 266, § 30A, and unlawfully carrying a firearm, in violation of G. L. c. 269, § 10 (a).[2]  Both moved to suppress the firearm located during the inventory search of the vehicle that they used to travel to the department store.  We summarize the facts found by the motion judge following the evidentiary hearing, supplemented where necessary with undisputed testimony that was implicitly credited by the judge.  Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).

At about 4:30 P.M. on March 18, 2013, Dartmouth police Officers Robert St. Denis and Victor Morency separately went to the loss prevention office of a department store in Dartmouth, where they learned that loss prevention officers had detained the defendants after determining that they had attempted to leave the store without paying for some items.  Violet had stolen cologne worth sixty-one dollars, and Oliveira had stolen athletic apparel worth forty-three dollars.  St. Denis told the defendants that the police had been called in response to a shoplifting complaint, and asked Violet and Oliveira how they had arrived at the store.  Violet replied that he had driven “his” motor vehicle, but that it was registered to his girl friend.  After learning that a bag of merchandise from the store was in Violet’s vehicle, Morency asked Violet for permission to search it for the bag.  Violet gave permission to search for the bag, and he provided the police with the keys to open the vehicle in order to retrieve the bag.  The police officers verified that the vehicle was registered to Violet’s girl friend and located it properly parked in a marked spot in the parking lot.  One of the officers used Violet’s key to open the vehicle, saw the bag in plain view on the back seat, and brought the bag back into the store, where one of the defendants produced a receipt for the merchandise in the bag.

The defendants were placed under arrest for shoplifting.[3]  The police told the defendants that Violet’s vehicle would be inventoried and towed.  The defendants became “visibly agitated,” and Violet stated that he wanted his girl friend, the registered owner of the vehicle, to come and pick it up rather than to have it towed.  The police did not honor Violet’s request, and conducted an inventory search of the vehicle.  In the unlocked glove compartment, the police discovered a loaded firearm.[4]

The police officers spoke with the store’s manager and told him that Violet’s vehicle might remain in the parking lot overnight.  The manager responded that he did not want it to remain in the lot and asked that it be towed.[5]  The motion judge found that the “prediction” by the police that the vehicle might remain in the lot overnight was “completely speculative, as no one made an effort to find out whether the owner of the car would come get it, and if so, when.”

The judge allowed the defendants’ motions to suppress the firearm found during the inventory search.  The judge found that the search was a “‘true’ inventory search,” that is, it was intended to secure the vehicle and its contents, and was not a pretext for an investigatory search, and also found that the search conformed to the Dartmouth police department’s inventory search policy.  But the judge concluded that the seizure of the vehicle that preceded the inventory search was not reasonable.  The judge found that Violet’s request that the vehicle not be towed and that its owner be permitted to get it was reasonable.  The judge also found that there was nothing about the defendants’ behavior or about the items found in the shopping bag during the consent search of the vehicle “that would have given rise to a suspicion that allowing the car to remain in the [department store’s] lot until the owner could retrieve it would pose any risk of harm to the public.”

The Commonwealth filed a notice of appeal in each case, and it applied for leave to proceed with an interlocutory appeal from the decision in the two cases, which a single justice of this court allowed and reported to the Appeals Court.  We transferred the cases to this court on our own motion.

Discussion.  Because an inventory search is conducted without a warrant, the Commonwealth bears the burden of proving that the search was lawful.  See Commonwealth v. Eddington, 459 Mass. 102, 108 (2011).  Under both the United States and Massachusetts Constitutions, an inventory search is lawful only if, first, the seizure (or impoundment) of the vehicle was reasonable, see id., citing Commonwealth v. Ellerbe, 430 Mass. 769, 776 (2000) (“guiding touchstone” is reasonableness); and, second, the search of the vehicle that follows its seizure was conducted in accord with standard police written procedures, see id. at 108 & n.11; Ellerbe, supra at 773 n.8.  See generally Commonwealth v. Brinson, 440 Mass. 609, 612 (2003) (“A lawful inventory search is contingent on the propriety of the impoundment of the car”).  We address in this case only the reasonableness of the seizure.

In evaluating whether the seizure of a vehicle was reasonable, we look first to the law enforcement officer’s true purpose for seizing it.  After the arrest of the driver, a vehicle may be seized for one of at least four legitimate purposes:  to protect the vehicle and its contents from theft or vandalism, see Ellerbe, 430 Mass. at 775; to protect the public from dangerous items that might be in the vehicle, see United States v. Coccia, 446 F.3d 233, 240 (1st Cir. 2006), cert. denied, 549 U.S. 1149 (2007); to protect public safety where the vehicle, as parked, creates a dangerous condition, see Brinson, 440 Mass. at 615-616; Commonwealth v. Henley, 63 Mass. App. Ct. 1, 5-6 (2005); or where the vehicle is parked on private property without the permission of the property owner as a result of a police stop, to spare the owner the burden of having to cause the vehicle to be towed, see Ellerbe, supra at 770, 776 (“it is appropriate for the police to spare the private parking lot owner the burden of dealing with the vehicle’s presence when the driver has been arrested”).  Where the police’s true purpose for searching the vehicle is investigative, the seizure of the vehicle may not be justified as a precursor to an inventory search, and must instead be justified as an investigative search.  See Commonwealth v. White, 469 Mass. 96, 102 (2014); Commonwealth v. Vuthy Seng, 436 Mass. 537, 551-555 & n.16, cert. denied, 537 U.S. 942 (2002), S.C., 445 Mass. 536 (2005) and 456 Mass. 490 (2010).  See also Commonwealth v. Rostad, 410 Mass. 618, 620 (1991) (inventory search “may not be allowed to become a cover or pretext for an investigative search”); Commonwealth v. Ortiz, 88 Mass. App. Ct. 573, 576-577 (2015).

If the vehicle was seized for a legitimate purpose, we look next to whether the seizure was reasonably necessary based on the totality of the evidence.  See Eddington, 459 Mass. at 108-110.  Where the police arrest the driver of a vehicle, we consider whether the vehicle reasonably could have been left in the place it was parked and therefore need not have been seized.  An important factor here is whether the driver chose where to park the vehicle or whether the police stopped a moving vehicle and caused it to be parked at a location the driver otherwise would not have chosen.  Where the driver chose the location to park the vehicle, and parked it lawfully on the street, in the owner’s driveway, or in a parking lot open to the public without limitation, the Commonwealth must show that it would have been unreasonable to have allowed the vehicle to remain where the driver chose to park it.  See Brinson, 440 Mass. at 610 (“the government may not impound and conduct an inventory search of a car based on the arrest of the owner, where the car was lawfully parked in a privately owned parking lot [by the owner] and there was no evidence that the car constituted a safety hazard or was at risk of theft or vandalism”).  But where the vehicle was stopped by the police and the driver arrested, the police are responsible both for the location of the vehicle and for depriving the vehicle of its driver, and therefore might be held responsible if the vehicle’s location created a risk to public safety or left the vehicle vulnerable to vandalism or theft.  Id. at 613-614, citing People v. Krezen, 427 Mich. 681, 687–692 (1986) (potential police liability for failure to impound can be considered in decision to seize).  See generally 3 W.R. LaFave, Search and Seizure § 7.3(c), at 809-815 (5th ed. 2012).

Where the vehicle reasonably could not have been left in the place it was parked, we consider whether the owner of the vehicle or a person clearly authorized by the owner to drive the vehicle was present and lawfully able to drive the vehicle away, that is, whether the vehicle was properly registered and the person was licensed to drive and neither under arrest nor under the influence of drugs or alcohol.  Where the owner or authorized driver, for whatever reason, was unable to drive the vehicle away, we consider whether the owner or authorized driver offered the police a lawful and practical alternative to impoundment of the vehicle.  See Ellerbe, 430 Mass. at 774 (“the police had no practical available alternative to towing the vehicle, and thus no discretion to exercise”); Commonwealth v. Caceres, 413 Mass. 749, 751 (1992) (“We conclude that there was no practical available alternative to the removal of the vehicle and to an inventory search of it.  The defendant did not suggest or request any alternative to removal of the vehicle”).

We have no litmus test to gauge whether the alternative offered by the owner or authorized driver was lawful and practical and therefore an alternative the police reasonably should have allowed instead of impoundment; the determination depends on the totality of the circumstances.  We have, however, made clear that the police have no obligation to locate or telephone the registered owner to determine his or her wishes, Eddington, 459 Mass. at 109, or to wait with the vehicle until a licensed driver can be located, Ellerbe, 430 Mass. at 776.

In this case, we agree with the judge that the decision of the police to impound the vehicle was unreasonable.  The police did not question that Violet was authorized by his girl friend to drive the vehicle, and it was properly registered to her.  Under the circumstances, Violet’s request that the police leave the vehicle where he parked it until his girl friend could retrieve it was lawful and practical.  Before the vehicle was impounded, Violet had been arrested only for shoplifting, a crime that was punishable by a fine of no more than $ 250, G. L. c. 266, § 30A, so it was likely that he would be released on bail after he was booked and could then notify his girl friend to retrieve the vehicle or retrieve it himself.  Even if he were not quickly released on bail, he was legally entitled to make a telephone call at the police station.  See G. L. c. 276, § 33A.  During this telephone call, he could notify his girl friend of the need to pick up her vehicle or ask another person to notify her.  Even if he were unable to reach her and was not released on bail, there was no evidence that the vehicle was at significant risk of being stolen or vandalized if it remained overnight in the department store lot.  Nor, where it was parked properly in the lot, did it pose any public safety risk or any obstruction to other vehicles.  Nor was there evidence that the lot was the private property of the department store; it was described simply as a “public way” at the hearing.  Even if the lot were owned by the department store, no weight can be given to the request of the department store manager to tow the vehicle from the lot, because there is no evidence to support a finding that the request occurred before the officers began the inventory search.  A seizure of a vehicle cannot be justified by information learned from the seizure and subsequent search of that vehicle.  See Commonwealth v. Thibeau, 384 Mass. 762, 763-764 (1981).

The Commonwealth contends that the police need only consider the request for an alternate disposition of the vehicle where the owner of the vehicle is present and proposes the alternate disposition.  Such a per se rule would undermine the nature of the impoundment decision, which requires the police to act reasonably and “necessitates a case-by-case analysis that takes into account the numerous and varied situations in which decisions to impound are made.”  Eddington, 459 Mass. at 109 n.12.  Here, the police did not question Violet’s assertion that he was authorized by the owner of the vehicle to drive it, and there were no circumstances that reasonably should have caused them to question that assertion.  The fact that the owner of the vehicle was not present when the driver was arrested is not sufficient by itself to justify impoundment of the vehicle and the consequent inventory search.  See id. at 111 n.14.

Conclusion.  Because we conclude that the impoundment was unreasonable and, thus, unconstitutional, we affirm the order of the motion judge suppressing the fruits of the inventory search of the motor vehicle.

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-1793                                       Appeals Court

COMMONWEALTH  vs.  ANTOINE KEENE.

No. 14-P-1793.     March 28, 2016.

Firearms.  Constitutional Law, Search and seizure, Reasonable suspicion.  Search and Seizure, Reasonable suspicion.  Practice, Criminal, Motion to suppress.

     This case began when two men, one of whom is the defendant, ran out of a nightclub in Stoughton at 12:52 A.M. on April 21, 2013.  When stopped by Stoughton police Officer Mark Baldner, they said they were leaving the club because there was a fight inside, which was true.  The officer told them they could leave, and saw them get into a Nissan Altima vehicle, the license plate number of which he wrote down.  He did not see them again.

Approximately ten minutes later there was a shooting outside the nightclub.  The officer told Stoughton police dispatch to issue a “be on the lookout” (BOLO) bulletin for the Altima, requesting that it be “stop[ped] and h[e]ld.”

Although the defendant and his companion had left the scene before the shooting occurred, the Boston police department issued a broadcast for units to be on the lookout for a Nissan Altima with the license plate number provided by Officer Baldner, which was described as “coming back to 130 Cummings Highway, [Boston] containing two occupants” and “last seen heading northbound on route 138.”  The broadcast directed units to “stop and hold for the Stoughton [police department] regarding a shooting” and, for reasons that are unexplained in the record, added that the occupants “should be considered armed and dangerous.”

Boston police officers saw the Altima on Radcliffe Street in Mattapan.  They stopped the car and approached it with guns drawn, ordering its occupants to keep their hands up and make no sudden movements.  The officers secured the defendant, who had been driving, and put him in a police car with his hands cuffed behind his back.

Police searched the car for a gun without success.  An officer from the K9 unit then conducted a more thorough search,  during which he lifted the armrest of the driver’s side door, which seemed to be loose and not sealed as designed.  He saw a cloth bag and the baseplate of firearm magazine.  He then closed the armrest and put his K9 partner inside the car, and the dog alerted to the driver’s side door armrest.  Two firearms were recovered.

A Suffolk County grand jury returned indictments against the defendant, and the defendant filed a motion to suppress.  A judge of the Superior Court allowed that motion, and the Commonwealth filed this interlocutory appeal.

The Commonwealth does not contend that the Stoughton police had a reasonable basis based upon articulable facts to believe that the defendant or his companion had committed, was committing, or was about to commit a crime, see Terry v. Ohio, 392 U.S. 1, 21 (1968), let alone to believe that they were armed and dangerous, see Arizona v. Johnson, 555 U.S. 323, 326-327 (2009).  They left the scene of the shooting ten minutes before the shooting took place, and there is no evidence in the record that they had anything to do with the shooting or that they were seen with any firearms at the nightclub.  The Commonwealth argues only that the evidence should not have been suppressed because the Boston police officers were acting reasonably in response to a BOLO radio report that described the defendant and

his companion as “considered armed and dangerous.”

The Commonwealth misperceives the nature of the constitutional inquiry.  Of course the Boston police officers on the scene responded appropriately to the BOLO.  Indeed, we may assume that their response was reasonable given the incorrect information they had been given.

But the question whether there was a constitutional violation, and whether the Fourth Amendment requires the suppression of the evidence seized, requires an examination not only of the actions of the Boston police but of the Stoughton police as well, and not only of the police officers, but of the police dispatchers.  In United States v. Hensley, 469 U.S. 221 (1985), the Supreme Court addressed the question whether an officer of a police department may make a Terry-stop[1] in reliance on a “wanted flier” issued by a neighboring police department indicating that the defendant was suspected of robbery.  The Court upheld such a stop provided, among other things, that “the police who issued the flier or bulletin possessed a reasonable suspicion justifying a stop.”  Id. at 233.  “Of course, this requirement is equally applicable where information is transmitted between officers by radio rather than by a wanted flier . . .”  Commonwealth v. Fraser, 410 Mass. 541, 546 (1991).  Here, where the Stoughton police department was not aware of any articulable facts that supported a reasonable suspicion sufficient to warrant a stop of the defendant’s vehicle, that stop violated the Fourth Amendment, and the evidence seized from the vehicle must be suppressed.

In light of this conclusion, we need not determine whether, as the defendant argues, the scope of the Commonwealth’s search would have been permissible only on the basis of probable cause.

Order allowing motion to

suppress affirmed.

Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.

Rebecca Kiley for the defendant.

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-11969

DRUMMER BOY HOMES ASSOCIATION, INC.  vs.  CAROLYN P. BRITTON & another.[1]

Middlesex.     January 7, 2016. – March 29, 2016.

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

Condominiums, Common expenses.  Real Property, Condominium.  Lien.  Mortgage, Priority.  Practice, Civil, Standing, Attorney’s fees.

Civil actions commenced in the Concord Division of the District Court Department on August 8, 2007; February 6, 2008; and October 6, 2008.

After consolidation, the case was heard by Peter J. Kilmartin, J., on a motion for summary judgment, and a motion to alter and amend the judgment was also heard by him.

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

Thomas O. Moriarty (Jennifer L. Barnett with him) for the plaintiff.

Michael A.F. Johnson, of the District of Columbia (Rhiannon A. Campbell with him), for Federal Housing Finance Agency & others, amici curiae.

Randy A. Britton, pro se.

The following submitted briefs for amici curiae:

Alan E. Lipkind & Elizabeth Brady Murillo for Avidia Bank & others.

Henry A. Goodman, Ellen A. Shapiro, Charles A. Perkins, Jr., Scott J. Eriksen, & David R. Chenelle for Community Associations Institute.

Clive D. Martin & Diane R. Rubin for Real Estate Bar Association for Massachusetts, Inc.

Stephen C. Reilly & Jennifer E. Greaney for Bank of America, N.A.

     SPINA, J.  At issue in this case is whether G. L. c. 183A, § 6, permits an organization of unit owners to establish multiple contemporaneous priority liens on a condominium unit by filing successive legal actions to collect unpaid monthly common expense assessments (common expenses).[2]  We conclude that the statute allows for such liens.  Accordingly, we reverse the judgment of the Appellate Division of the District Court,[3] which reached a contrary conclusion.[4]

1.  Background.  Over the last ten years, the parties in this case have been involved in protracted and contentious litigation concerning parking rights at a condominium complex.  Our recitation of the factual background and procedural history encompasses only those matters that relate to the specific issues now before this court.  Drummer Boy Condominium II, which consists of twelve individual units, is one of nine condominiums comprising Drummer Boy Green in Lexington.  In the aggregate, the nine condominiums have approximately 150 units.  The defendant, Carolyn P. Britton, purchased a unit in Drummer Boy Condominium II in May, 2001.  In April, 2008, she transferred title to the unit by quitclaim deed to herself and her husband, defendant Randy A. Britton, as tenants by the entirety.[5]

Around 2004, the Brittons began to withhold payment of their monthly common expenses because of a dispute concerning parking rules and related fines.  On August 8, 2007, the Drummer Boy Homes Association, Inc. (association),[6] commenced an action in the District Court against the Brittons.[7]  It sought to recover unpaid common expenses and to enforce a priority lien pursuant to G. L. c. 183A, § 6 (c), and G. L. c. 254, §§ 5, 5A, that would be superior to the first mortgage to the extent of the common expenses due during the six months immediately preceding the commencement of the action.[8]  The Brittons continued to withhold payment of their monthly common expenses.  On February 6, 2008, the association commenced a second action to recover the unpaid common expenses that had accrued since the filing of its first action, and to enforce a second six-month priority lien.  When the Brittons still did not pay their monthly common expenses, the association commenced a third action on October 6, 2008, to recover the unpaid common expenses that had accrued since the filing of its second action, and to enforce a third six-month priority lien.  The association subsequently filed a motion to consolidate the three actions, which was allowed.

On March 9, 2009, the association filed a motion for summary judgment.  Following a hearing, a judge allowed the motion and entered judgment in favor of the association in the amount of $ 22,742.08.[9]  The judge first determined that the association was the proper entity to seek recovery of unpaid common expenses pursuant to G. L. c. 183A, § 6.  He then concluded that there were no disputed issues of material fact regarding the association’s ability to recover unpaid common expenses and related fines, as well as reasonable attorney’s fees and costs associated with the collection of such expenses.  The judge pointed out that, notwithstanding the Brittons’ arguments about the purported illegality of the parking policies at Drummer Boy Green, they never initiated an action to resolve their parking dispute, and they could not remedy the matter simply by ignoring the fines and refusing to pay their common expenses.[10]  The judge also concluded, however, that the filing of successive actions was not consistent with G. L. c. 183A, § 6 (c), and that the association’s lien priority over the first mortgagee for common expenses, plus reasonable attorney’s fees and costs, was limited to the one six-month period preceding the commencement of the first of the consolidated actions.  That being the case, the judge established a priority lien under § 6 (c) in the amount of $ 15,054.86.[11]  The judge denied the association’s subsequent motion to alter or amend the judgment to reflect three successive six-month periods of lien priority.

Both parties appealed to the Appellate Division of the District Court.  By decision dated July 20, 2011, a panel of the Appellate Division affirmed the judgment in all respects.  After reviewing the parties’ extensive briefing, the panel determined that only two issues had been properly raised:  standing and statutory interpretation.  First, the panel considered the Brittons’ argument that the plaintiff was not a legal entity entitled to sue and, therefore, the judgment was void.  The association conceded that it should have brought suit in the name of “Drummer Boy Homes Association, Inc.,” rather than “Board of Directors of the Drummer Boy Homes Association, Inc.”  The panel corrected the misnomer, concluding that the litigation was brought by an existing legal entity with authority to sue, and that the Brittons suffered no prejudice as a result of the amendment.

Next, the panel considered the association’s argument that, pursuant to G. L. c. 183A, § 6 (c), it was entitled to lien priority for three successive six-month periods.  After reviewing the language of the statute, together with its underlying policy of balancing a condominium association’s need to enforce the collection of unpaid common expenses and a first mortgagee’s desire to protect the priority of its security interest, the panel concluded that the association was entitled to only one six-month period of lien priority.  In the panel’s view, extending a condominium association’s lien priority beyond one six-month period of time would undermine the purpose of the statutory scheme.  The panel also stated that the association was entitled to recover reasonable appellate attorney’s fees and costs.

Both parties appealed to the Appeals Court, which affirmed the judgment of the Appellate Division.  Drummer Boy Homes Ass’n, Inc. v. Britton, 86 Mass. App. Ct. 624 (2014).  We then granted the association’s application for further appellate review.

2.  Standing.  As an initial matter, the Brittons contend that because the association is not the “organization of unit owners” for Drummer Boy Condominium II, it does not have standing to bring a cause of action pursuant to G. L. c. 183A for the recovery of unpaid common expenses.  As a consequence, the Brittons continue, this court lacks subject matter jurisdiction to consider the association’s claims under the statute, and, therefore, summary judgment should enter in their favor.  We disagree.[12]

A condominium is a creature of statute.  See G. L. c. 183A; Kaplan v. Boudreaux, 410 Mass. 435, 442 (1991).  General Laws c. 183A, § 6 (a) (i), states that “[t]he organization of unit owners shall have a lien on a unit for any common expense assessment levied against that unit from the time the assessment becomes due.”  Pursuant to G. L. c. 183A, § 1, the “organization of unit owners” is “the corporation, trust or association owned by the unit owners and used by them to manage and regulate the condominium.”

On June 7, 1976, the trustees of Drummer Boy Trust (trustees), together with their successors and assigns, executed a Declaration of Covenants, Easements, and Restrictions (declaration) to create Drummer Boy Green.  In turn, the declaration provided for the creation of the association as the entity to which the trustees would delegate and assign “the powers of maintaining and administering . . . common areas and facilities and administering and enforcing the covenants and restrictions and collecting and disbursing the assessments and charges hereinafter created.”  The association was incorporated under the laws of Massachusetts for the purpose of exercising these functions.[13]  The declaration further states that “[e]very person who or entity which is a record owner of a fee or undivided fee interest in any Living Unit shall be a member of the [association].”  As set forth in the covenant for maintenance assessments, if an assessment is not paid in a timely manner, the association “may bring an action at law against the [unit owner] personally obligated to pay the same or to foreclose the lien against the Living Unit.”

On September 30, 1976, the trustees executed a master deed, submitting specified land, together with the buildings and improvements erected thereon, and all easements, rights, and appurtenances belonging thereto, to the provisions of G. L. c. 183A, thereby creating Drummer Boy Condominium II.  It was subject to the terms of the declaration, and the covenants, easements, and restrictions set forth therein were incorporated by reference into the master deed.  Section 8 of the master deed states that “Drummer Boy Condominium II Association” is the unincorporated association of unit owners that will manage and regulate Drummer Boy Condominium II.  Article I, Section 2, of the bylaws adopted by Drummer Boy Condominium II Association (bylaws) provides that such entity is the “organization of [u]nit [o]wners” as defined in G. L. c. 183A.  At the same time, Article I, Section 3, of the bylaws provides that the association (that is, Drummer Boy Homes Association, Inc.) has been organized under Massachusetts law for the purpose of administering and enforcing the declaration, and that the declaration vests in the association “certain responsibilities for the maintenance of the Common Elements described in the Master Deed.”  Moreover, Article VI, Section 1, of the bylaws states that “[f]or the duration of the Declaration, the Common Expenses shall be determined, assessed and collected by the [association] as provided in the Declaration and its By-Laws, on behalf of [Drummer Boy Condominium II] and all other Drummer Boy Condominiums . . . .”

In essence, pursuant to the master deed and the bylaws, Drummer Boy Condominium II Association delegated the exclusive authority to assess and collect common expenses to the association.  That being the case, the association functions as the “organization of unit owners” to recover unpaid common expenses and to enforce a priority lien in accordance with G. L. c. 183A, § 6.  We conclude that the association had standing to bring the present action.

3.  Successive priority liens.  The association contends that because a unit owner’s responsibility to pay monthly common expenses is a recurring obligation, an organization of unit owners can file successive legal actions under G. L. c. 183A, § 6, to establish and enforce multiple contemporaneous liens on a condominium unit, each with a six-month period of priority over the first mortgage, for the recoupment of successive periods of unpaid common expenses.  We agree.

Our analysis of G. L. c. 183A, § 6, is guided by the familiar principle that “a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.”  Hanlon v. Rollins, 286 Mass. 444, 447 (1934).  See Sullivan v. Brookline, 435 Mass. 353, 360 (2001), and cases cited.  “Courts must ascertain the intent of a statute from all its parts and from the subject matter to which it relates, and must interpret the statute so as to render the legislation effective, consonant with sound reason and common sense.”  Twomey v. Middleborough, 468 Mass. 260, 268 (2014).  “When amending a statute or enacting a new one, the Legislature is presumed to be aware of prior statutory language.”  Ropes & Gray LLP v. Jalbert, 454 Mass. 407, 412-413 (2009).

An organization of unit owners is entitled to have a lien on a condominium unit for unpaid common expenses from the time such expenses become due.  See G. L. c. 183A, § 6 (a) (i).  General Laws c. 183A, § 6 (c), first par., states, in relevant part, that “[w]hen any portion of the unit owner’s share of the common expenses has been delinquent for at least sixty days . . . , the organization of unit owners shall send a notice stating the amount of the delinquency to the unit owner . . . [and] to the first mortgagee.”  Then, “thirty days prior to the filing of an action by the organization of unit owners to enforce its lien for delinquent common expenses, the organization of unit owners shall send a notice stating its intention to file said action to the first mortgagee.”[14]  Id.  The evident purposes of such notices are to give the unit owner an opportunity to remedy the delinquency so as to avoid an enforcement action that may result in foreclosure, and to apprise the first mortgagee of the status of the property so it can take appropriate action, as necessary, to protect its security interest.

Prior to 1992, a lien on a condominium unit for unpaid common expenses was subordinate to the first mortgage of record.  See St. 1991, c. 554, § 1.  As a consequence, the first mortgagee had little incentive to initiate a foreclosure action against the unit owner because its security interest was not in jeopardy.  At the same time, during periods of falling real estate values, when the mortgage on a condominium unit might equal or exceed the fair market value of the unit, a foreclosure action by the first mortgagee could result in insufficient funds to satisfy a condominium association’s lien.  In 1992, the Legislature recognized that “a serious public emergency” had developed with respect to housing created pursuant to G. L. c. 183A.  St. 1992, c. 400, § 1.  “This emergency ha[d] been created by a policy of disinvestment by unit owners who [were] no longer paying their lawfully assessed share of the common expenses.  Without the payment of these common expenses, condominium buildings [were] falling into physical and financial disrepair, causing neighborhood blight, and jeopardizing the public health, safety, and welfare.”  Id.  The Legislature’s response was to “take action to aid condominium associations” by enacting numerous amendments to G. L. c. 183A.  Id.

Significantly, the Legislature inserted the second paragraph of G. L. c. 183A, § 6 (c), to establish the priority of diverse liens that could be placed on a condominium unit.  See St. 1992, c. 400, § 9.  It states, in relevant part, as follows:

“[A] lien [under G. L. c. 183A, § 6, for unpaid common expenses] is prior to all other liens and encumbrances on a unit except (i) liens and encumbrances recorded before the recordation of the master deed, (ii) a first mortgage on the unit recorded before the date on which the assessment sought to be enforced became delinquent, and (iii) liens for real estate taxes and other municipal assessments or charges against the unit.  This lien is also prior to the mortgages described in clause (ii) above to the extent of the common expense assessments based on the budget adopted pursuant to [G. L. c. 183A, § 6 (a),] which would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce the lien and to the extent of any costs and reasonable attorneys’ fees incurred in the action to enforce the lien . . .” (emphasis added).

G. L. c. 183A, § 6 (c), second par.  The statute further provides that “payment of the assessments with respect to such six month period, and to the extent of any costs or reasonable attorneys’ fees incurred in said action, shall serve to discharge such lien to the extent that such lien is prior to such mortgages described in clause (ii) above.”  Id.  Moreover, “[t]he priority amount shall not include any amounts attributable to special assessments, late charges, fines, penalties, and interest assessed by the organization of unit owners.”  Id.  In essence, when a condominium association initiates a lien enforcement action, it can obtain so-called “super-priority” status over a first mortgagee for six months’ worth of common expenses.  See id.

General Laws c. 183A, § 6 (c), second par., is silent with respect to whether, in the face of ongoing nonpayment of common expenses, an organization of unit owners can initiate subsequent actions to establish priority liens beyond one six-month period.  Nonetheless, the insertion of the fourth and fifth paragraphs of G. L. c. 183A, § 6 (c), as discussed infra, suggests that the Legislature anticipated that condominium associations might initiate multiple lien actions.  See St. 1998, c. 242, § 6.  Indeed, given the Legislature’s recognition of the “serious public emergency” caused by unit owners who fail to pay their common expenses, it is reasonable to think that the Legislature would view such payment delinquencies as an ongoing problem necessitating more than the heretofore limited remedy of one lien for six months’ worth of common expenses.  See Blood v. Edgar’s, Inc., 36 Mass. App. Ct. 402, 405 n.2 (1994) (Legislature consistently has amended G. L. c. 183A “to strengthen common expense collection”).  The financial stability of the condominium form of home ownership depends, in significant part, on the timely receipt of common expenses by the organization of unit owners.  See Trustees of the Prince Condominium Trust v. Prosser, 412 Mass. 723, 726 n.3 (1992) (“the collection of all common area charges is important to the viability of any condominium enterprise”).

In 1998, the Legislature inserted the fourth and fifth paragraphs of G. L. c. 183A, § 6 (c), to establish the procedure by which a first mortgagee could maintain its lien priority notwithstanding the initiation of an enforcement action by an organization of unit owners to recoup unpaid common expenses.  See St. 1998, c. 242, § 6.  General Laws c. 183A, § 6 (c), fourth par., states, in relevant part, as follows:

“The organization of unit owners shall take no further action to enforce its priority liens against a particular unit for common expenses if the first mortgagee agrees in writing that a priority lien exists without the requirement of instituting an action, as to such enforcement and pays, within [sixty] days of said writing, the following prescribed amounts:  (1) so much of any delinquent assessments on that unit for regularly recurring budgeted common expenses over a period for six months immediately preceding the notice of delinquency that would constitute a priority amount if an action had been commenced on the date the organization gives its delinquency notice to the mortgagee; (2) costs and reasonable attorney’s fees incurred by the organization at the time of said writing by the first mortgagee to collect outstanding common expenses . . . ; [and] (3) all future common expenses, and special assessments other than special assessments for improvements made pursuant to [G. L. c. 183A, § 18,] assessed against that unit from the date of said notice until such time as the mortgagee’s mortgage is foreclosed or otherwise no longer encumbers the unit.  The amount which the first mortgagee, if it so elects, would be required to pay to cause the organization not to proceed to enforce its priority liens shall not include any amounts attributable to late charges, fines, penalties, and interest assessed by the organization of unit owners . . .” (emphasis added).[15]

In addition, G. L. c. 183A, § 6 (c), fifth par., provides that, when requested by the first mortgagee, “the organization of unit owners shall provide a written statement in reasonable detail of the actual dollar amounts the first mortgagee would be required to pay, if it so elected, to cause the organization of unit owners not to take further action to enforce its priority liens against the unit” (emphasis added).  The fifth paragraph also sets forth a timetable by which the first mortgagee and the organization of unit owners shall enter into the written agreement described in the fourth paragraph.  See id.

By enabling a first mortgagee to assume responsibility for a unit owner’s unpaid common expenses, the Legislature has balanced the interests of a condominium association with those of a first mortgagee.  On the one hand, the condominium association is assured that it will receive six months’ worth of delinquent common expenses plus all future common expenses, thereby allowing it to meet its ongoing financial obligations without imposing an additional burden on unit owners who have paid their common expenses in a timely manner.[16]  On the other hand, the first mortgagee is assured that it will maintain its lien priority, and that the condominium association will refrain from taking further enforcement action.  The first mortgagee also can avoid the costs and reasonable attorney’s fees that otherwise would be incurred in the lien enforcement action, and can preserve the value of its collateral through the continuous payment of common expenses.[17]

Construing G. L. c. 183A, § 6 (c), as permitting an organization of unit owners to establish a single priority lien on a condominium unit for the recovery of only six months’ worth of unpaid common expenses would render the mechanism established by the Legislature in the fourth and fifth paragraphs of the statute inconsequential.  It also would ignore the Legislature’s references to “priority liens” in both the fourth and fifth paragraphs of § 6 (c) (emphasis added).  There would be little reason for a first mortgagee to assume responsibility for the payment of a unit owner’s future common expenses if the condominium association were limited to one six-month period of lien priority.  In such circumstances, future common expenses would always be subordinate to the first mortgage.  The procedure articulated in the fourth and fifth paragraphs of G. L. c. 183A, § 6 (c), reflects an awareness by the Legislature that the statute permits an organization of unit owners to establish and enforce multiple contemporaneous priority liens on a condominium unit.  Our interpretation of G. L. c. 183A, § 6, is consistent with the Legislature’s long-standing interest in improving the governance of condominiums and strengthening the ability of organizations of unit owners to collect common expenses, thereby avoiding a reemergence of the serious public emergency that developed in the early 1990s.  We are cognizant of the concern that by allowing a condominium association to establish multiple priority liens over an extended period of time, those liens eventually could have priority over much of the first mortgage.  However, it is well within the control of a first mortgagee to avert the establishment of such liens in the first instance by paying statutorily prescribed amounts to the organization of unit owners in conformity with G. L. c. 183A, § 6 (c), fourth par.

4.  Appellate attorney’s fees.  In its brief, the association has requested appellate attorney’s fees and costs incurred as a consequence of its efforts to recover the common expenses due and owing from the Brittons.  General Laws c. 183A, § 6 (b), states that “[t]he unit owner shall be personally liable for all sums assessed for his share of the common expenses including late charges, fines, penalties, and interest assessed by the organization of unit owners and all costs of collection including attorneys’ fees, costs, and charges.”  The Appellate Division of the District Court awarded the association $ 8,500 in appellate attorney’s fees and costs, which was added to the total judgment entered in its favor.

We now conclude that the association is statutorily entitled to recover reasonable attorney’s fees and costs associated with the proceedings before this court and the Appeals Court.[18]  See Yorke Mgt. v. Castro, 406 Mass. 17, 19 (1989).  The association is directed to file with the clerk of this court materials detailing and supporting its request for such fees and costs within fourteen days of the issuance of the rescript in this case.  See Fabre v. Walton, 441 Mass. 9, 10 (2004).  The Brittons will be afforded fourteen days to respond, and the court will then enter an appropriate order.  See id. at 10-11.

5.  Conclusion.  The association may file successive legal actions against the Brittons under G. L. c. 183A, § 6, to establish and enforce multiple contemporaneous liens on their condominium unit, each with a six-month period of priority over the first mortgage, for the recoupment of successive periods of unpaid common expenses.  Accordingly, the judgment of the Appellate Division of the District Court is reversed.

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-11905

ROLAND VAN LIEW  vs.  COLLEEN STANSFIELD.

Middlesex.     January 8, 2016. – March 30, 2016.

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

“Anti-SLAPP” Statute.  Practice, Civil, Motion to dismiss, Appeal, Review of interlocutory action.  District Court, Appellate Division.  Civil Harassment.

Civil action commenced in the Lowell Division of the District Court Department on February 22, 2012.

A special motion to dismiss was heard by Laurence D. Pierce, J.

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

Michael J. Fencer for the defendant.

Karen A. Pickett for the plaintiff.

BOTSFORD, J.  In this case we first consider a procedural issue concerning the appropriate forum to hear appeals from the allowance of a special motion to dismiss under G. L. c. 231, § 59H (§ 59H), the so-called “anti-SLAPP”[1] statute, by a judge in the District Court.  This case also requires us to evaluate the relationship between G. L. c. 258E, the statute governing civil harassment prevention orders, and allegedly political speech.  On the procedural issue, we conclude that a party seeking to appeal from a District Court order allowing or denying a special motion to dismiss may file the appeal directly in the Appeals Court, rather than in the Appellate Division of the District Court Department (Appellate Division).  We further conclude that with one possible exception, the speech at issue here — primarily concerning a local municipal election and more generally issues of local public concern — did not qualify as either “fighting words” or “true threats,” see O’Brien v. Borowski, 461 Mass. 415, 425 (2012), and therefore, no civil harassment prevention order should have issued in this case.  In the circumstances presented, Roland Van Liew established that Colleen Stansfield’s petition for a civil harassment prevention order was devoid of factual support, that he had sustained injury, and that Stansfield’s special motion to dismiss Van Liew’s complaint for abuse of process and malicious prosecution should have been denied.

Background.[2]  Van Liew and Stansfield are both residents of Chelmsford (town).  Stansfield has been an elected member of the local planning board since April, 2009.  At the time of the events at issue here, in 2012, Van Liew did not hold public office but was an active participant in local civic and political affairs.  Over the years, Van Liew has disagreed publicly with many positions taken by Stansfield on the planning board and in her role supporting local political campaigns.

In 2012, Van Liew was a candidate for selectman in the town, and on February 1, 2012, he held a public “meet and greet” event at the town libraryin connection with his candidacy.  Stansfield attended the event and challenged various positions taken by Van Liew during the discussion.  At the close of the event, Stansfield approached Van Liew and asked whether he was going to take part in upcoming debates.  According to Stansfield, Van Liew responded loudly, “[O]f course . . . and I know what you do. . . .  [Y]ou sent an anonymous letter to my wife and I’m coming after you,” to which Stansfield responded, “[Y]ou are looking at a restraining order,” and left.[3]

Later that day, after speaking with local police, Stansfield sought in the District Court a harassment prevention order against Van Liew pursuant to G. L. c. 258E, § 3.  She alleged four incidents of harassment in her complaint:  (1) Van Liew threatened Stansfield at the meet and greet event, where he was “in [her] face” and told her he was “coming after” her and she left shaking in fear; (2) Van Liew sent several mailings in the past year calling Stansfield corrupt and a liar; (3) during a recall election in July, 2011, Van Liew again called her a liar and corrupt; and (4) during their first interaction in a two-hour telephone call initiated by Stansfield (that took place at some point prior to 2009) Van Liew screamed at her and called her “terrible names.”  A District Court judge held an initial, ex parte hearing at which Stansfield testified; the judge issued a temporary harassment prevention order against Van Liew.[4]  The judge scheduled a full hearing on Stansfield’s request for a permanent order to take place two weeks later, on February 15, 2012.  Five days after the temporary order issued, it was modified at Stansfield’s request to prevent Van Liew from mentioning Stansfield’s name in any “email, blog, [T]witter or any document through [I]nternet, television show, ad or otherwise.”  On February 15, 2012, the scheduled hearing on Stansfield’s request for an order took place before a different District Court judge.  It was attended by Stansfield, who represented herself, and Van Liew, represented by counsel.  Stansfield testified about the verbal exchange at Van Liew’s meet and greet event, and further testified that, in the past, Van Liew had called Stansfield “corrupt and a liar” with regard to her work on the planning board, specifically pointing to two electronic mail (e-mail) messages written by Van Liew, one of which Stansfield read to the judge.  The e-mail message appears to mention Stansfield twice by name but goes on at great length to provide highly critical commentary about certain development projects that were being proposed for the town pursuant to G. L. c. 40B and other programs.[5]  The judge concluded that she could not find the requisite three acts of harassment for a harassment prevention order under G. L. c. 258E and that some of the acts alleged by Stansfield were political speech, not threatening in any way; the judge vacated the temporary harassment prevention order.

Van Liew then filed the present action against Stansfield in the District Court, asserting claims for abuse of process and malicious prosecution.  The complaint alleges that Stansfield sought the harassment prevention order against him “for the purpose of disrupting [Van Liew’s] campaign” and that she sought the order even though she knew she lacked probable cause for its issuance.  Stansfield answered and also filed a special motion to dismiss the complaint pursuant to § 59H along with a supporting affidavit.  Van Liew filed an opposition to Stansfield’s special motion to dismiss and a supporting affidavit.  A third District Court judge allowed the special motion after a hearing, and ruled that Van Liew “failed to show that the application for a harassment prevention order ‘was devoid of any reasonable factual support,’” quoting G. L. c. 231, § 59H.  Van Liew then appealed the ruling to the Appellate Division, which concluded after a hearing that Van Liew had presented sufficient evidence to show that Stansfield lacked any reasonable factual support for her petitioning activity; the Appellate Division vacated the order of dismissal and remanded the case to the District Court for trial.  Stansfield filed an appeal in the Appeals Court from the decision and order of the Appellate Division; we transferred her appeal to this court on our own motion.

Discussion.  1.  Stansfield’s right to appeal.  We first consider whether Stansfield may proceed with her appeal, given that the Appellate Division’s order vacating the allowance of the special motion to dismiss and remanding the case for trial is interlocutory, and generally may not be the subject of an appeal.  Van Liew argues that this court lacks jurisdiction because by statute, G. L. c. 231, § 109, only final decisions of the Appellate Division are appealable to the Appeals Court.  We disagree.

This court previously has held that regardless of where — i.e., in which department of the trial court — a suit may be commenced, a trial judge’s denial of a special motion to dismiss brought pursuant to the anti-SLAPP statute, § 59H,[6] may be appealed directly to the Appeals Court.  See Fabre v. Walton, 436 Mass. 517, 521-522 (2002), S.C., 441 Mass. 9 (2004).  The reasons for our holding, set out in Fabre,[7] apply with equal force to an Appellate Division decision denying a special motion to dismiss, and therefore to Stansfield’s appeal.  But more generally, and based on the same concerns that we expressed in Fabre about certainty, uniform treatment of similarly situated litigants, and consistent development of the law relating to the anti-SLAPP statute, see id. at 522, we conclude that any party in a case pending in the District Court who seeks to appeal from the denial or the allowance of a § 59H special motion to dismiss should file the appeal directly in the Appeals Court rather than in the Appellate Division of the District Court or the Appellate Division of the Boston Municipal Court.  See Zullo v. Goguen, 423 Mass. 679, 681 (1996) (“This court has wide discretion in devising various procedures for the course of appeals in different classes of cases” [citation omitted]).  In sum, Stansfield’s appeal was filed properly in the Appeals Court, and like the Appeals Court, this court has jurisdiction to decide it.

2.  Stansfield’s special motion to dismiss.  We turn to the merits.  Stansfield, as the party filing a special motion to dismiss under § 59H, bore the initial burden to demonstrate through her pleadings and affidavits that Van Liew’s claims she sought to dismiss were based on her “petitioning activities alone and ha[d] no substantial basis other than or in addition to the petitioning activities.”  Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168 (1998).  See G. L. c. 231, § 59H.  There is no dispute that Stansfield met that burden; Van Liew’s complaint focused solely on Stansfield’s application for a harassment prevention order, which originally was granted ex parte as a temporary order.  Van Liew makes no claim here, nor could he, that Stansfield’s application for this order did not qualify as petitioning activity under the anti-SLAPP statute.  Cf. McLarnon v. Jokisch, 431 Mass. 343, 347 (2000) (anti-SLAPP statute covers filings for abuse protection orders, pursuant to G. L. c. 209A, and supporting affidavits).  As a consequence, Van Liew was required by the statute to show by a preponderance of the evidence –- again based on pleadings and affidavits — that Stansfield’s petitioning activities were “devoid of any reasonable factual support or any arguable basis in law” and that such petitioning activities “caused actual injury” to him.  G. L. c. 231, § 59H.  See Benoit v. Frederickson, 454 Mass. 148, 152-153 (2009).  See also Baker v. Parsons, 434 Mass. 543, 553-554 (2001) (nonmoving party’s obligation to show moving party’s petitioning activities were devoid of either reasonable factual support or arguable legal basis is not “an insurmountable barrier to relief”).  Stansfield argues that Van Liew failed to meet either prong of his burden.  We agree with the Appellate Division, however, that Van Liew met both prongs, and the special motion to dismiss should have been denied.

A party seeking a harassment prevention order under G. L. c. 258E, § 3,[8] must demonstrate “harassment,” which the statute defines in relevant part to mean “[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property that does in fact cause fear, intimidation, abuse or damage to property.”  G. L. c. 258E, § 1.[9]  The definition of “harassment” in c. 258E was crafted by the Legislature to “exclude constitutionally protected speech,” O’Brien, 461 Mass. at 425, and to limit the categories of constitutionally unprotected speech that may qualify as “harassment” to two:  ”fighting words” and “true threats.”  Id.  See Seney v. Morhy, 467 Mass. 58, 63 (2014).  To qualify as “fighting words” the words “must be a direct personal insult addressed to a person, and they must be inherently likely to provoke violence.”  O’Brien, supra at 423.  As for “true threats,” these include “direct threats of imminent physical harm,” as well as “words or actions that — taking into account the context in which they arise — cause the victim to fear such [imminent physical] harm now or in the future.”  Id. at 425.  Moreover, to constitute “harassment” within the definition of the term in c. 258E, the fighting words or true threats must have been made with an intention to cause, and must actually cause, abuse, fear, intimidation, or damage to property.[10]  G. L. c. 258E, § 1.  And fear is narrowly defined as fear of physical harm or fear of physical damage to property; it must be more than “a fear of economic loss, of unfavorable publicity, or of defeat at the ballot box.”  O’Brien, supra at 427.

In her request for the harassment prevention order, Stansfield pointed to the following conduct on Van Liew’s part that, she claims in this appeal, compelled her to seek the harassment prevention order against him:  during a telephone call, Van Liew called her uneducated and stupid; in public mailings, Van Liew stated that Stansfield was corrupt and a liar, and further referred to her as corrupt and a liar during a local recall election; and Van Liew threatened her at the meet and greet event held in support of his candidacy for the office of selectman.[11]

We will assume that the most recent incident alleged by Stansfield, occurring at the meet and greet event, qualified as an act of harassment under G. L. c. 285E, § 1; that is, we will assume that Van Liew’s declaration to Stansfield, “I’m coming after you,” was an “act[] of willful and malicious conduct,” and further that it was aimed at Stansfield, was committed with the requisite intent, and caused Stansfield fear.  However, the other three instances complained of by Stansfield — accusations made in public mailings, accusations made during the 2011 recall election, and insults made during a telephone call that took place before 2009 — did not qualify as harassing acts within the scope of G. L. c. 258E.

The public accusations by Van Liew that Stansfield was “corrupt and a liar” — the subject of two of the four incidents of harassment — plainly were remarks about Stansfield’s performance as an elected planning board member, i.e., as a public official.  See Arlington v. Board of Conciliation & Arbitration, 370 Mass. 769, 777 (1976).  These remarks about a local public official constituted political speech and were at the core of the speech that the First Amendment to the United States Constitution protects.  See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995) (“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.  The First Amendment affords the broadest protection to such political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people’” [citation omitted]).  Although these types of public accusations may be “vehement, caustic, and sometimes unpleasantly sharp,” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), this form of political speech must remain “uninhibited, robust, and wide-open,” id.  Van Liew’s challenged accusations were neither fighting words nor true threats, but at most qualify as political hyperbole.  See Commonwealth v. Chou, 433 Mass. 229, 236 (2001) (“The term ‘true threat’ has been adopted to help distinguish between words that literally threaten but have an expressive purpose such as political hyperbole, and words that are intended to place the target of the threat in fear”).

The remaining act of which Stansfield complained occurred when she telephoned Van Liew to become acquainted with him and his views about issues of concern in the town, and Van Liew spoke “very loudly . . . telling [her she] was wrong, uneducated or stupid.”  The record indicates that at the time of this telephone call, Stansfield was not yet a planning board member and therefore not a public official, but the discussion involved matters of public interest.  Regardless of whether the discourse was political in nature, however, Van Liew’s insults certainly failed to qualify as fighting words or true threats.  The insults were not “so personally abusive that they [were] plainly likely to provoke a violent reaction and cause a breach of the peace,” O’Brien, 461 Mass. at 423, nor did such insults, even if delivered in a loud voice, rise to the level of a “true threat” of “imminent physical harm” or words that would cause someone to fear such harm.  Id. at 425.  As such, these telephone conversation insults do not qualify as harassing conduct within the scope of G. L. c. 258E.  Accordingly, because Stansfield failed to present three or more acts of harassment, she was not entitled to a harassment prevention order.  See Seney, 467 Mass. at 63-64 (evidence was insufficient to establish three acts of harassment under c. 258E where plaintiff failed to show defendant intended to cause fear or intimidation; e-mail message addressed to third party using unflattering terms to describe plaintiff was not directed at plaintiff and was not motivated by cruelty, hostility, or revenge).  As a result, and as Van Liew showed below in accordance with his burden to do so, Stansfield’s petitioning activity -– seeking a harassment prevention order — was “devoid of any reasonable factual support or any arguable basis in law.”  G. L. c. 231, § 59H.  See Benoit, 454 Mass. at 154 n.7.

Stansfield contends that the original issuance of a temporary harassment prevention order and its subsequent modification is proof that a reasonable person may conclude there was sufficient factual support for the petitioning activity.  The argument fails.  Although a judge granted the request for a harassment prevention order after a brief ex parte hearing and the order was modified thereafter to increase its restrictions on Van Liew,[12] that order was only temporary.  Two weeks later, after a full hearing that presented Van Liew with his first opportunity to be heard, the temporary order was vacated.  Contrast Fabre, 436 Mass. at 524 (where judge extended restraining order for six months after evidentiary hearing and final judgment entered, “the judgment is conclusive evidence that the petitioning activity was not devoid of any reasonable factual support or arguable basis in law”).  It was clear from the text of Stansfield’s complaint for a harassment prevention order that no valid basis for such an order was presented; the insufficiency of facts pleaded could not be cured by a temporary order that was entered erroneously.

Finally, Van Liew adequately demonstrated that Stansfield’s petitioning activity caused him “actual injury,” the second prong of the showing he was required to make to defeat Stansfield’s special motion to dismiss.  To defend against the harassment protection order sought by Stansfield, Van Liew retained an attorney to represent him at the full hearing before the District Court judge and submitted supporting evidence of the attorney’s fees and costs he was responsible for paying as a result.[13]^,[14]  The costs of defending against improper petitioning activity, once affirmatively proved, are evidence of reasonable damages.  Cf. Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 645-647 (2010).  We accordingly conclude that Van Liew met his burden as the nonmoving party and the Appellate Division correctly denied Stansfield’s special motion to dismiss.[15]

Conclusion.  We vacate the order of the District Court and remand the case to that 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-1348                                       Appeals Court

COMMONWEALTH  vs.  LUIS BONILLA

No. 14-P-1348.

Suffolk.     October 1, 2015. – March 30, 2016.

Present:  Cypher, Milkey, & Hanlon, JJ.

Larceny.  Uttering Forged Instrument.  Practice, Criminal, Required finding.

Complaint received and sworn to in the Central Division of the Boston Municipal Court Department on March 5, 2013.

The case was tried before Raymond G. Dougan, Jr., J.

Edward Crane for the defendant.

Helle Sachse, Assistant District Attorney, for the Commonwealth.

     HANLON, J. Following a jury trial, the defendant, Luis Bonilla, was convicted of larceny over $ 250 by a single scheme (count 1), and uttering a false instrument (count 2); he was sentenced to two one-year concurrent sentences to the house of correction.  On appeal, he argues that the evidence was insufficient to support his convictions.  We affirm the judgment in part and reverse in part.

Background.  On February 26, 2013, the defendant deposited six $ 5,000 checks, one into each of six newly opened bank accounts at Metro Credit Union, for a total amount of $ 30,000.  The next day, the defendant returned to Metro Credit Union and withdrew $ 600 in cash, $ 200 from each of three of the new accounts:  $ 200 was the maximum amount available for each new account until the original deposit checks cleared.  Sometime after the defendant withdrew the $ 600, Metro Credit Union was informed that all six of the initial checks had been dishonored and were being returned to the bank.  Three of the returned checks were drawn from the defendant’s TD Bank account, which had been opened only one week earlier; the other three checks, from his East Boston Savings Bank account, were returned because the account had been closed.  Thereafter, the defendant made no attempt to pay back the money he had withdrawn.  In addition, some of the identification information that the defendant had provided to Metro Credit Union when he opened his accounts was incorrect.^[1]  Specifically, both the social security number and mother’s maiden name were incorrect.

1.  Larceny.  In order to sustain a conviction for larceny, the Commonwealth must prove “that a defendant took the personal property of another without the right to do so, and ‘with the specific intent to deprive the other of the property permanently.’  Commonwealth v. Murray, 401 Mass. 771, 772 (1988).”  Commonwealth v. Liebenow, 470 Mass. 151, 156 (2014).  Property, as defined by G. L. c. 266, § 30, includes an “order or certificate.”  The defendant contends that the Commonwealth failed to present sufficient evidence to prove his specific intent to commit larceny.  We disagree.

Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury permissibly could have found that the defendant committed a larceny and that he had the specific intent to deprive Metro Credit Union of its property permanently.  We note that the defendant left the bank with $ 600 in cash and failed to cure the defects in the checks after they were returned to Metro Credit Union.  Cf. Commonwealth v. Klein, 400 Mass. 309, 312 (1987) (conviction of larceny pursuant to G. L. c. 266, § 37, affirmed where inference of intent to defraud and knowledge of insufficient funds where maker of returned check fails to cure within two days).  In addition, in finding fraudulent intent, the jury reasonably could consider that the defendant was likely to know that his closed and recently opened bank accounts did not contain $ 30,000; that he opened six separate bank accounts at the same time; and that he provided a false social security number and a false maiden name for his mother.  As “the Commonwealth may rely on reasonable inferences drawn from circumstantial evidence,” the evidence here was sufficient to convict the defendant of larceny over $ 250.  Commonwealth v. Degro, 432 Mass. 319, 325 (2000).

2.  Uttering.  The defendant next argues that the Commonwealth failed to provide sufficient evidence to support a conviction for uttering a false instrument.  We agree.  In order to support a conviction for uttering, the Commonwealth must show that the defendant:  ”(1) offer[ed] as genuine; (2) an instrument; (3) known to be forged; (4) with the intent to defraud.”  Commonwealth v. O’Connell, 438 Mass. 658, 664 n.9 (2003), quoting from Commonwealth v. Levin, 11 Mass. App. Ct. 482, 496 (1981).  See G. L. c. 267, § 5 (“Whoever, with intent to injure or defraud, utters and publishes as true a false, forged or altered record, deed, instrument or other writing mentioned in the four preceding sections, knowing the same to be false, forged or altered, shall be punished.”).

Here, looking at the evidence in the light most favorable to the Commonwealth, the defendant wrote and deposited checks totaling $ 30,000 knowing that he did not have sufficient funds to cover the checks.  However, the checks were written from his own accounts and they were not forged, false, or altered.  That is, the Commonwealth has not challenged the genuineness of the checks themselves drawn on the defendant’s accounts held at both TD Bank and East Boston Savings Bank.  Nor is there a dispute about authenticity of the defendant’s signature, which appears on the front of each of the six checks presented for deposit.  The Metro employee, Ms. Romero, testified that the defendant endorsed the back of the checks prior to her depositing each.

The Commonwealth invites us to construe § 5 broadly to include the defendant’s behavior.  We decline.  In a persuasive case, the United States Supreme Court in Williams v. United States, 458 U.S. 279, 284 (1982), held that writing a check with knowledge that there are insufficient funds to cover it cannot support a conviction for making false statements to a financial institution, as “a check is not a factual assertion at all, and therefore cannot be characterized as ‘true’ or ‘false.’”  Additionally, “[a]s defined by the Uniform Commercial Code, a check is simply ‘a draft drawn on a bank and payable on demand, which contains an unconditional promise or order to pay a sum certain in money.”^[2]  Id. at 285 (citations omitted).[3]

Although Williams interprets a Federal statute, it is still instructive, and the Massachusetts cases interpreting the statute do not hold otherwise.  Compare O’Connell, supra (defendant convicted of uttering for forging his father’s signature on five checks); Commonwealth v. Gall, 58 Mass. App. Ct. 278, 290 (2003) (defendant uttered falsified certificates of insurance to clients showing proof of workers’ compensation coverage).

Finally, Massachusetts has a bad check statute, G. L. c. 266, § 37, which permits the inference that the Legislature did not intend for defendants to be punished under the uttering statute for writing bad checks.  “Under the rule of lenity, we interpret ambiguous statutory language in a criminal defendant’s favor.”  Commonwealth v. Coppinger, 86 Mass. App. Ct. 234, 239 (2014).  We are satisfied that there was insufficient evidence to support the defendant’s conviction for uttering.

The judgment on count 1, larceny over $ 250, is affirmed.  The judgment on count 2, uttering, is reversed, the verdict is set aside, and judgment shall enter for the defendant.

So ordered.

Full-text Opinions

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

SJC-11719

COMMONWEALTH  vs.  EDWIN MAZARIEGO.

Worcester.     January 12, 2016. – March 31, 2016.

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

Homicide.  Felony-Murder Rule.  Rape.  Constitutional Law, Voluntariness of statement, Waiver of constitutional rights.  Evidence, Voluntariness of statement, Inflammatory evidence, Prior misconduct.  Practice, Criminal, Capital case, Motion to suppress, Voluntariness of statement, Argument by prosecutor, Postconviction relief, Duplicative convictions.

Indictments found and returned in the Superior Court Department on June 14, 2010.

A pretrial motion to suppress evidence was heard by James R. Lemire, J., and the cases were tried before David Ricciardone, J.

Kathleen M. McCarthy for the defendant.

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

     SPINA, J.  The defendant was convicted of murder in the first degree on a theory of felony-murder, based on the predicate felony of aggravated rape.  He also was convicted of aggravated rape, and he was sentenced to concurrent terms of life in prison.  On appeal, the defendant asserts error in (1) the denial of his motion for a required finding of not guilty; (2) the denial of his separate motions to suppress two statements he made to police; (3) the admission in evidence of emotional testimony from the victim’s daughter; (4) the admission of evidence of the defendant’s prior bad acts; (5) improper closing argument by the prosecutor; and (6) the denial of his postconviction motion to reduce the verdicts to rape and felony-murder in the second degree.  We affirm the convictions of murder in the first degree and order dismissal of the aggravated rape conviction as duplicative.  We decline to exercise our power under G. L. c. 278, § 33E, to reduce the degree of guilt or order a new trial.

1.  Background.  The jury could have found the following facts.  We reserve other details for discussion of particular issues.

Walter Martinez lived with his father, Rafael Martinez, on Benefit Street in Worcester in August, 2006.  Rafael owned the house.  He rented one room to Julio Mancias, Walter’s cousin, and another room to the defendant, Mancias’s friend.  On August 18, 2006, at about 10:20 P.M., Walter saw Mancias and the defendant talking to the victim in the hallway of their home.  At about 11 P.M., Rafael was driving home and saw Mancias with two other people, one a woman, standing at the corner of Benefit and Beacon streets.  About two or three hours later, Rafael heard a knock at a window.  It was Mancias and the defendant.  They asked Rafael to let them in.  When Rafael opened the door they ran into the house and went directly to Mancias’s room.  They appeared agitated and closed the door behind them.  The next morning, the victim’s body was discovered by police near train tracks in the vicinity of Benefit Street.  She was naked below the waist, her legs were spread apart, and her blood-soaked shirt and sweater were pulled up.  Her face was bloody.  Three bloody rocks ranging in weight from 11.17 pounds to 12.82 pounds were recovered near her body.  A condom also was found near her body.

About one month later, the defendant invited Walter to his room for a beer.  The defendant told him that he and Mancias had been with a woman and that they had killed her in the basement of the Benefit Street house.  The defendant said Mancias actually killed her by repeatedly hitting her on the back of her head until she “dropped dead.”  He said they moved her body from the basement of the house to some nearby train tracks.  Walter later confronted Mancias with what the defendant had told him.  Mancias admitted that he had killed the woman, and told Walter that the victim was a prostitute and there had been a problem over money.  An individual unconnected to those mentioned above initially was charged with the victim’s murder, but deoxyribonucleic acid (DNA) testing excluded him as the perpetrator.  The case remained unsolved for nearly four years.

In an unrelated case, a group of men fired shots at Walter, Mancias, and the defendant in 2007.  Mancias was killed, Walter was paralyzed, and the defendant escaped unharmed.  During a pretrial meeting in that case in February, 2010, Walter told the prosecutor and a detective about his conversations with the defendant and Mancias in 2006.  As a result, a Spanish-speaking detective interviewed the defendant on April 29, 2010, after first advising him of the Miranda warnings.  The defendant said he understood his rights and agreed to speak to the detective.  The detective showed the defendant a photograph of the victim.  The defendant said she did not look familiar.

A second interview took place on May 17, 2010, preceded by the Miranda warnings.  The defendant said he understood his rights and agreed to speak to the detective.  He admitted that he had lied on April 29 when he said he did not recognize the victim.  The defendant said she was not killed in the basement, but at the location where she was found.  He first said that he saw Mancias with the victim at about 1 A.M. on the night she was killed, and did not see him again that night until about 3 A.M.  At that time Mancias told him that he wanted to have sex with the victim, but he could not because it was too cold and the victim did not want to have sex.  Later in that conversation, Mancias told the defendant that he had killed the victim because she would not have sex with him.  According to the defendant, Mancias also said that he had killed her with some rocks.  The defendant denied being present when the victim was killed, and he denied having sexual relations with her.

After further questioning on May 17, the defendant admitted that he was with Mancias and the victim.  He said that he went with the victim first, that they both had removed their pants, that he had positioned himself on top of her, and she insisted on being paid.  Because he had no money, he then hugged her, put on his pants, and went over to Mancias.  He said he told Mancias that the victim did not want to have sex because he had no money.  The defendant denied having sexual relations with the victim.  He explained that sexual “relations” are when one “finish[es],” and he did not “finish.”  Mancias told him to act as a lookout in case the police came.  The defendant said that he went behind some bushes while Mancias took his turn.  He heard screams and he heard the hits.  He said that he did not see Mancias hitting the victim, but later said that he did see Mancias hitting her with rocks, at which point he fled.

A forensic pathologist’s testimony supported findings that the victim died from blunt trauma to the head and that she had been manually strangled, possibly before the head trauma.  Vertical drips of dried blood on her legs suggested that the victim had been injured while she was standing.  Examination of her external genitalia revealed a dry and red chafing-type abrasion to the inner folds of the labia of recent origin, that is, between one day and seconds before death.  The abrasions were consistent with vaginal penetration.  Neither sperm nor seminal fluid was detected on swabbings from the victim’s mouth, vagina, and rectum.  A vaginal swab tested positive for blood.

DNA test results supported findings that the victim’s DNA matched the major DNA profile in a mixture of biological material on one of the rocks found at the scene, and that Mancias was a potential contributor of the minor DNA profile in the mixture.  A mixture of biological material from the interior of the condom was subjected to DNA testing.  The defendant matched the major DNA profile, and the victim was included as a potential contributor of the minor DNA profile.  Mancias was excluded as a source of the DNA mixture from the interior of the condom.  A DNA mixture on the exterior surface of the condom was tested.  The victim matched the major DNA profile in the mixture, and the defendant was included as a potential contributor of the minor DNA profile.

2.  Motion for required finding.  The defendant contends that the judge erred in three respects in denying his motion for a required finding of not guilty.  He argues that the evidence was insufficient as to the issues of (1) penetration and lack of consent; (2) aggravating factors for aggravated rape; and (3) whether the killing occurred during the commission of a rape or aggravated rape for purposes of felony-murder.  The decision to grant or deny a motion for a required finding is a question of law.  In reviewing the sufficiency of the evidence we consider the evidence in the light most favorable to the Commonwealth and ask if any rational trier of fact could have concluded that the Commonwealth met its burden of proof as to the essential elements of the crime charged.  See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).  A fact finder may rely on common experience to draw inferences.  Id. at 678.  Inferences need not be necessary.  Id. at 678-679.  “It is enough that [they] be reasonable and possible” (emphasis added; citation omitted).  Commonwealth v. Marquetty, 416 Mass. 445, 452 (1993).

a.  Penetration and lack of consent.  The Commonwealth must prove some degree of penetration, Commonwealth v. King, 445 Mass. 217, 221-222 (2005), cert. denied, 546 U.S. 1216 (2006), and it must prove that such penetration occurred by threat of force and against the will of the victim, Commonwealth v. Sherry, 386 Mass. 682, 687 (1982).

The defendant contends that no rational fact finder could have found beyond a reasonable doubt that he penetrated the victim for purposes of rape, and that it was against the will of the victim.  He bases his argument on the following evidence:  he only hugged the victim because she would not allow him to have intercourse unless he first paid her; the relatively recent abrasions on the inner folds of the victim’s external labia could have been one day old and were consistent with several possible causes other than penetration; testimony from the Commonwealth’s pathologist that science could not determine the cause of the abrasions; the evidence that no seminal fluid or sperm cells were detected on any of the swabbings of the victim; and it could not be determined how the victim’s DNA was deposited on the condom found at the scene.  The defendant has distorted the Latimore analysis by casting the evidence in the light most favorable to himself.

A jury could have found beyond a reasonable doubt that the element of penetration had been established based on evidence that the defendant’s DNA matched the major DNA profile of the biological material from the interior of the condom; that the victim’s DNA matched the major profile of the biological material on the exterior surface of the condom; that in his statements to Rosario the defendant lied about his involvement and made incremental disclosures of his participation in the incident; that the defendant admitted being on top of the victim when they were both naked below the waist; that the abrasions to the victim’s external labia were consistent with forceful penetration; and that penetration could be inferred from the defendant’s statement that he did not have sexual relations with the victim because he did not “finish,” which a jury could infer to mean that the defendant penetrated but did not experience orgasm.  Separately, these facts would not warrant a finding of penetration, but together, they possess a synergy that supports a finding of the element of penetration.  See Phillips v. Chase, 201 Mass. 444, 448 (1909) (“When circumstantial evidence is largely relied upon to establish an issue, it is inevitable that many matters should be introduced which by themselves alone would be immaterial, although in connection with other evidence they may be helpful in discovering the truth”).

Additionally, a jury could have found that where the defendant acknowledged that the victim made it clear that she did not want to have intercourse unless she were paid in advance and that she had not been paid, the defendant had nonconsensual sexual intercourse with the victim, and that he did so with force.  The judge properly denied the defendant’s motion for a required finding of not guilty to the extent that the Commonwealth made out a prima facie case of rape.

b.  Aggravated rape.  The defendant next contends that there was insufficient evidence to support a verdict of guilty of the crime of aggravated rape.  Aggravated rape is rape “[a] committed with acts resulting in serious bodily injury, [b] or is committed by a joint enterprise, [c] or is committed during the commission or attempted commission of” certain specified offenses not relevant here.  G. L. c. 265, § 22 (a).  We are concerned only with the first two alternatives, which are intertwined in this case.  A jury could have found the defendant guilty on both alternatives based on the evidence that he and Mancias both planned to have intercourse with the victim; that they went to a location where the defendant previously had taken prostitutes; that the defendant had no money to pay the victim; that he did not ask Mancias to pay the victim; that neither of them had money to pay the victim nor the intention to pay her for sexual intercourse; that the defendant acted as a lookout while Mancias hit the victim with heavy rocks; that the defendant observed the killing; that after the victim collapsed one or both men raised her bloody shirt and sweater to expose her breasts and one or both men spread apart her legs; that they fled together and arrived together at the Benefit Street house where they rented rooms; and that the defendant told Walter that “they” killed the victim.

A jury could infer the existence of a joint venture from the circumstances, including engaging a prostitute for intercourse without having any money or intention to pay; the defendant positioning himself as a lookout during the beating, see Commonwealth v. Hanwright, 466 Mass. 303, 313 (2013); the evidence that Mancias and the defendant fled together, see Commonwealth v. Williams, 422 Mass. 111, 121 (1996); and from the other circumstances.  “The relevant question is whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding.”  Commonwealth v. Lydon, 413 Mass. 309, 312 (1992), quoting Commonwealth v. Brown, 401 Mass. 745, 747 (1988).  A jury had sufficient evidence from which they could conclude that the defendant raped the victim as part of a joint venture based on the evidence that he was present at the scene, with knowledge that either or both men intended to have nonconsensual sexual intercourse with the victim, and that the defendant was willing and available to help Mancias if necessary, the elements of a joint venture.  See Commonwealth v. Zanetti, 454 Mass. 449, 455 (2009).

Moreover, a jury had ample basis to find that serious bodily injury was inflicted on the victim by Mancias while the defendant was acting as his lookout.  The jury were not required to believe the defendant’s statement that he had disengaged from the joint venture, but that he remained with Mancias and that they left the scene together.  The judge did not err in denying the defendant’s motion for a required finding of not guilty as to the crime of aggravated rape.  See Commonwealth v. Lynch, 428 Mass. 617, 622 (1999).

c.  Felony-murder.  Last, the defendant contends that the evidence was insufficient to establish beyond a reasonable doubt that the killing occurred during the course of the predicate felony, here, aggravated rape.  “[F]or purposes of felony-murder, the homicide and predicate felony ‘need only to have occurred as part of one continuous transaction’; and [the] connection is sufficient ‘as long as the [predicate felony] and the homicide[] took place at substantially the same time and place.’”  Commonwealth v. Gunter, 459 Mass. 480, 488, cert. denied, 132 S. Ct. 218 (2011), quoting Commonwealth v. Ortiz, 408 Mass. 463, 466 (1990).  Where the jury could have found that the defendant and Mancias had engaged in a joint venture to rape the victim, that the defendant acted as a lookout for Mancias, and that contrary to the defendant’s assertion, he had not disengaged from the joint venture, Mancias’s killing of the victim constituted felony-murder for which the defendant could be convicted under a theory of joint venture.  There was no error in the denial of the defendant’s motion for a required finding of not guilty.

3.  Suppression issues.  The defendant argues that the two statements he made on April 29, 2010, and the one on May 17, 2010, should have been suppressed on grounds that he did not understand his Miranda rights, that he did not properly waive his Miranda rights, and that the statements were not made voluntarily.  On April 29 the defendant was transported from the Worcester County House of Correction, where he was being held on an unrelated matter, to the Worcester police station.  The first statement on April 29 consisted of a pretrial interview of the defendant with respect to the shooting case in which he was an apparent target.  The second interview concerned the instant matter.  On May 17 the defendant again was transported from the Worcester County House of Correction to the Worcester police station.  That interview concerned the instant case.  The three interviews were video recorded and were conducted in Spanish, as the defendant speaks little English.[1]  Detective Daniel Rosario of the Worcester police department, who speaks Spanish, conducted all the interviews.  Transcripts of the interviews were translated into English, and no question has been raised as to the accuracy of either the transcripts or the translations.  The first interview on April 29 began at approximately 7:20 P.M. and ended at approximately 8:45 P.M.  The second interview on April 29 lasted approximately one hour and ten minutes.  There was a break of about twenty-five minutes between the two interviews on April 29.  The May 17 interview lasted approximately two hours and eleven minutes.

The defendant filed a pretrial motion to suppress these statements.  His motion alleged that all three statements should be suppressed because they “were not preceded by a knowing and intelligent waiver of Miranda rights,” and because they “were involuntary.”  The statement of most concern to the defendant was the one that he made on May 17 because it contained admissions relevant to this case.  The defendant’s theory for suppression had two components, and it was complex.  First, at the beginning of the initial interview on April 29, during the Miranda advisement, the defendant asked, “[O]n whose side is the attorney?”  He argued in his supporting memorandum of law that the question demonstrated the defendant’s ignorance of the role of an attorney for purposes of Miranda rights, and because his question was never answered on the record, his waiver of Miranda rights could not have been knowing and intelligent as to any of the statements, all of which were preceded by a Miranda advisement that he never understood.[2]  Second, the interrogation techniques employed during the second interview on April 29 were so coercive as to render any statement he made at that time involuntary, and their effect on the defendant did not dissipate with time but instead continued to resonate and carried over to May 17, rendering the May 17 Miranda waiver and the May 17 statement, as well as the second April 29 statement, involuntary.  This argument also was set forth in the defendant’s memorandum of law in support of his motion to suppress.

The motion judge conducted an evidentiary hearing on the motion to suppress at which the defendant testified about the effects that Detective Rosario’s interrogation of April 29 had on him during the May 17 interview.  After reviewing the video recordings of the three interviews and the translations of the transcripts, the motion judge concluded that the defendant “knowingly, voluntarily and intelligently waive[d] his Miranda rights before being interrogated on each of the three occasions.”[3]  The motion judge also found the defendant’s testimony about the coercive effects of the second April 29 interview to be “not credible,” and he concluded that all three statements given by the defendant were voluntary.

a.  Miranda issues.  The path of the litigation of the Miranda issues took an unwieldy turn, to which we alluded in note 2, supra.  On the first day of trial, after learning that the prosecutor intended to offer portions of the defendant’s second statement from April 29 (there were no admissions, but the prosecutor wanted the jury to hear what details of the investigation had been shared with the defendant), the defendant filed a motion in limine seeking to exclude both statements made on April 29, essentially tracking the theories that had been made in the motion to suppress.  In his supporting memorandum of law, and for the first time, he claimed that he invoked his right to silence at the beginning of the second interview on April 29.  Based on discussions with counsel, the trial judge assumed that the issue had been decided by the motion judge.  Unfortunately, no one alerted the trial judge to the arguments made by the defendant in his memorandum of law in support of the motion to suppress.  Had that been done, the judge would have seen that the claim of invocation of the right to silence was new, and that he might have had discretion to consider it.  See Mass. R. Crim. P. 13 (a) (5), as appearing in 442 Mass. 1516 (2004); Commonwealth v. Haskell, 438 Mass. 790, 792-793 (2003); Commonwealth v. Marmolejos, 35 Mass. App. Ct. 1, 3 (1993).  Because resolution of this question can be made by reviewing the video recordings of the interviews and by reviewing the translations of the transcripts of the interviews, we are in the same position as was the trial judge, and we make our own independent judgment about the facts and the legal analysis.  See Commonwealth v. Clarke, 461 Mass. 336, 340-341 (2012).

i.  Knowing waiver.  The defendant first contends that the Commonwealth has not shown that he knowingly waived his Miranda rights.  During the Miranda advisement preceding the first interview on April 29 the defendant asked in response to the Miranda warning regarding the appointment of an attorney, “[O]n whose side is the attorney?”  The defendant contends that this question, which never was answered, demonstrates that he did not understand the Miranda warning about the right to an attorney, and therefore he could not have waived his Miranda rights knowingly and voluntarily.  He further contends that this lack of understanding about the role of an attorney at the first advisement on April 29 remained unexplained and carried forward as to all other advisements, namely, the second advisement on April 29 and the advisement on May 17.

Although the defendant claims that he did not understand the role of an attorney in the Miranda context, and that the question he asked went unanswered, the record belies his assertions.  The record reflects that when Detective Rosario started to explain the Miranda warnings in response to the defendant’s question about the role of an attorney, the defendant interrupted him.  Rosario had begun his explanation by saying, “the most important thing is that you have the right to remain silent.  In other words, you don’t have to talk to me if you don’t want to.  Do you understand?”  The defendant immediately interjected, “No, but if it’s about making a statement, I’ll give you a statement, because it’s my family.”  Rosario said:  “But, do you want me to explain or do you understand me all right?”  The defendant replied:  “No, I understood you.”  Nevertheless, Rosario continued:  “You can give up the right I just read to you, to an attorney and your right to remain silent, and you can answer any question or make any statement that you want to, do you understand?”  The defendant replied, “Yes.”  Rosario continued:  “If you decide to answer the questions, again, you can stop at any time to consult with an attorney.  Do you understand more or less?”  The defendant indicated that he understood and agreed to speak to Rosario.  We are satisfied that, when Rosario explained that the defendant could stop questioning at any time to consult with an attorney, his explanation was adequate, the defendant accepted the explanation, and the defendant indicated that he understood his rights.

We have viewed the video recordings and considered the translations of what was said during each of the three interviews.  We conclude that, in the totality of the circumstances, the defendant received, understood, and then knowingly and intelligently waived his Miranda rights before each interview.  See Commonwealth v. Edwards, 420 Mass. 666, 670 (1995).

ii.  Invocation of right to silence.  The defendant next argues that he exercised his right to remain silent at the beginning of the second interview on April 29.  This issue was raised for the first time in a motion in limine filed on the first day of trial, as discussed in note 2, supra.  At the end of the first interview on April 29 the defendant asked, “You’re still going to continue interviewing, aren’t you?”  After a short break and at the beginning of the second interview on April 29 Detective Rosario asked the defendant what he meant by his question at the end of the previous interview.  The defendant mentioned being taken back to the house of correction.  It appears that Rosario thought that the defendant meant he wanted to keep talking in order to delay being sent back.  He asked the defendant if he wanted to continue talking.  The record indicates the defendant laughed and said, “No, no, no.”  The context reveals that when he laughed and said, “No, no, no,” the defendant was signaling Rosario’s misunderstanding.  Indeed, in the very next exchange, the defendant said, “Yes, it is fine,” in response to Rosario’s request to begin the interview by advising the defendant of the Miranda warnings.[4]  The defendant did not exercise his right to remain silent.

b.  Voluntariness.  The defendant next argues that his May 17 statement was the product of coercive police interrogation techniques employed during the second April 29 interview.  We begin with the second April 29 interview.  Contrary to the defendant’s claim, Rosario did not misrepresent to the defendant that if he did not tell his side of the story at that time, he would not later be able to tell it to a jury.  Contrast Commonwealth v. Novo, 442 Mass. 262, 268-269 (2004).  Rosario essentially told the defendant that it was his opportunity to “explain it to me” and that it was important to Rosario that the defendant be truthful at that time.

Rosario engaged in some deception, telling the defendant that because their conversation was being recorded, he (Rosario) could not lie to the defendant.  That is not a correct statement of law.  The use of trickery or deceitful tactics, while disfavored, does not necessarily compel suppression, but is a factor to be considered when deciding if, in the totality of the circumstances, a confession is voluntary.  See Commonwealth v. DiGiambattista, 442 Mass. 423, 432-433 (2004).

Rosario also employed the technique of minimization, suggesting that the defendant’s mere presence did not mean that he killed someone.  This was a correct statement of law, but it could be misleading.  Significantly, Rosario made no assurance of leniency, so we consider the use of this technique to be a factor that should be considered when determining whether, in the totality of the circumstances, a confession is voluntary.  Id. at 437-439.

The defendant also cites Rosario’s inquiry about whether the defendant was a religious person.  When the defendant said he was, Rosario told him, “You can hide from us, but you cannot hide from God.”  However, it was not Rosario who first broached the subject of an Almighty observer.  In response to Rosario’s question whether the defendant helped Julio Mancias move the victim’s body from the basement of the house to the railroad tracks, the defendant said he did not, adding, “God is up there.  I am not lying.”  Rosario continued with the theme of divine guidance, telling the defendant that he was being offered a tremendous opportunity to be truthful now, otherwise he would “have a very long time to ask yourself:  why is it that when God gave me the opportunity to tell the truth I just remained quiet?”  And later, “[twenty-eight] years old.  Are you prepared to spend the rest of your life in jail?”  Unmoved, the defendant replied, “Whatever God wants.”  We consider this aspect of the interrogation to be a factor in the assessment of the question of voluntariness.  As with other factors, it alone is not determinative.

Detective Rosario also used the ploy of being the defendant’s “brother,” specifically, sharing a common bond of Hispanic ancestry and culture.  The defendant did not take the bait.

Although some of Rosario’s interrogation techniques warrant our concern, none of them, either individually or in combination, appears to have overborne the defendant’s will.  See Commonwealth v. Tremblay, 460 Mass. 199, 206-207 (2011).  Indeed, as the motion judge found, “the defendant held his ground and would not concede when [Rosario] tried to suggest that he played more of a role in [the victim’s] death.”  We have viewed the video recording of the second April 29 interview, and we agree with the motion judge.  The defendant laughed or chuckled at Rosario sixteen times.  He yawned once.  The defendant held fast to his denials about involvement in a killing in the basement at Benefit Street.  Rosario had information that the killing occurred there, but in fact it did not occur there, and the defendant knew as much.  The defendant had the superior position as to the details of the killing, and the calm he maintained during the interview, often with his arms crossed with confidence, is entirely understandable.  Significantly, Rosario also maintained his composure throughout the interview, never raising his voice, never taking an aggressive attitude, and engaging the defendant in a conversational tone at all times.  Rosario did not overbear the will of the defendant during the second interview on April 29.

Finally, we turn to the question whether the alleged coercive nature of the second interview on April 29 smoldered in the defendant’s mind such that it adversely affected his waiver of Miranda rights on May 17, and whether it rendered the defendant’s May 17 statement involuntary.  The motion judge specifically addressed these issues in his decision on the defendant’s pretrial motion to suppress evidence.  Not only did the motion judge view the video recordings of all the interviews and the translations of transcriptions of all the interviews, but the defendant testified at the hearing.  Specifically, he testified about how Rosario’s statements made him feel.  The judge found the defendant’s testimony “not credible.”  The judge found the May 17 interview to be “an attempt [by the defendant] to minimize his role in the crimes and was the product of his rational intellect.  He had the opportunity to reflect on the facts he had received from the police and made a decision to try to address these facts by providing information that tended to diminish any culpability on his part.”  We defer to the judge’s findings of credibility and fact based on testimony that he witnessed, and that we did not.  See Commonwealth v. Hoose, 467 Mass. 395, 399 (2014).  We have conducted our own “independent review of the judge’s application of constitutional principles to the facts found,” id. at 400, including a review of all the video recordings and the translations of those recordings, and we conclude that in the totality of the circumstances, the defendant made a knowing and voluntary waiver of his Miranda rights on May 17, and that his statement of May 17, which included a piecemeal unfolding of his involvement in the crime, was given voluntarily.  There was no error in the denial of the defendant’s motion to suppress.

4.  Testimony from victim’s daughter.  The defendant objected to testimony from the victim’s daughter, who described their immediate family and briefly described the date and circumstances when she last saw the victim and how she learned of her death.  The defendant argues this was irrelevant and an improper appeal to sympathy.  The testimony comprised but five pages of the transcript.  The judge gave an immediate limiting instruction, telling the jury that the testimony was “not an appeal to sympathy or emotions,” but was offered “to give you some background on the person, the decedent.”  The prosecutor did not refer to the testimony in closing.  Some limited biographical detail may be given to humanize a victim, and the testimony here fell within permissible limits, especially when its use could not be used to engender sympathy or an emotional response to the evidence.  See Commonwealth v. Holliday, 450 Mass. 794, 816, cert. denied, 555 U.S. 947 (2008).  There was no error.

5.  Evidence of prior bad acts.  The judge admitted evidence of the defendant’s past history of bringing prostitutes to the area of Benefit Street on the issue of motive, intent, state of mind of the defendant, or lack of mistake on August 18-19, 2006.  The defendant timely objected, and now argues that the evidence was irrelevant and prejudicial evidence of bad character and propensity.  Evidence of prior bad acts may not be admitted to show bad character or a propensity to commit crime.  “[S]uch evidence may be admitted, if relevant, to show a common scheme or course of conduct, a pattern of operation, absence of accident or mistake, intent or motive.”  Commonwealth v. Barrett, 418 Mass. 788, 793-794 (1994).  The evidence showed that on three prior occasions the defendant had had sexual relations with three prostitutes in the vicinity where the victim was killed.  The judge immediately gave a limiting instruction tracking the language of Barrett.  The evidence was relevant to show the defendant’s intent, similarities in the location where he took prostitutes, and absence of mistake, namely, that the defendant knew that he brought no money to a transaction that he must have known would require payment of money, and that having no money was probative of the defendant’s intent to have sexual intercourse with a prostitute without paying the requisite fee.  It also was relevant to show that the defendant had more than passive involvement in the planning of the incident, where he was familiar with the particular location of the crime and his past use of that location for engaging prostitutes.  There was no error.

6.  Prosecutor’s closing.  The defendant asserts that the prosecutor improperly misstated evidence, referred to facts not in evidence, and improperly appealed to juror sympathy.  See Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987).

The prosecutor referred to the abrasion on the victim’s labia as “[f]resh.”  The defendant asserts that this was a misrepresentation of the evidence.  The prosecutor did not misrepresent the evidence.  The Commonwealth’s pathologist testified that these abrasions were recent, and she gave a time range for their cause as being from a day before death to hours, minutes, or even seconds before death.  The pathologist’s opinion was expressed in isolation of the other evidence in the case.  The prosecutor’s selection of a point in time within the range expressed by the pathologist, as illuminated by other evidence in the case, was fair, reasonable, and proper.  A prosecutor is permitted to make arguments of this nature to assist the jury in analyzing the evidence and to suggest conclusions they should draw from the evidence.  See Commonwealth v. Johnson, 429 Mass. 745, 750 (1999).

The prosecutor argued initially that the fresh abrasions to the labia were “in the area of [the victim’s] vagina,” and that these abrasions, “coupled with the blood found inside her vagina, tells us the defendant didn’t hug [the victim].  He raped her.”  This argument was properly grounded in the evidence.  The prosecutor later misspoke, saying, “The injuries to her vagina and the blood inside of it tell us that.”  The defendant objected at the conclusion of the prosecutor’s argument.  The defendant contends this was prejudicial error requiring reversal.  The judge acknowledged that the injury to the vagina was a “misstatement,” but not one that “amount[ed] to impropriety.”  The judge immediately instructed the jury generally that if either lawyer said anything that did not concur with the jury’s recollection of the evidence, the jury’s memory controlled.  Although the prosecutor’s reference to an injury to the victim’s vagina, rather than injury to the labia and blood found in the victim’s vagina as he previously argued properly, was error, we think that it was not prejudicial.  The element of penetration does not require proof of vaginal penetration, but may be met by evidence of a touching of the labia.  See Commonwealth v. Donlan, 436 Mass. 329, 336 (2002); Commonwealth v. Gichel, 48 Mass. App. Ct. 206, 213 (1999).  Here, the Commonwealth’s pathologist testified that the injury to the labia was consistent with penetration.  The manner in which the judge addressed the issue was adequate.

The defendant next argues that the prosecutor impermissibly appealed to juror sympathy when he argued that the defendant and Mancias fled together, “leaving [the victim’s] body on the side of those tracks, as if she weren’t even a human being, as if she were the litter we saw walking around [during the] view.”  Defense counsel objected at the end of the prosecutor’s argument and asked that the “litter” comment be struck and the jury instructed.  The judge overruled the objection, stating that the prosecutor did not cross the line.  We doubt that the prosecutor’s needless comment had the effect of sweeping the jurors beyond a fair and calm consideration of the evidence, see Commonwealth v. Smith, 387 Mass. 900, 905 (1983), and we continue to credit jurors with that “certain measure of . . . sophistication in sorting out excessive claims,” Commonwealth v. Kozec, 399 Mass. at 517.  Regrettably, we cannot say the same for those prosecutors who seem bent on interjecting low grade drama into their closing arguments.  Here, the jury did not quite feel the prosecutor’s passion, given that they found the defendant not guilty of murder committed with extreme atrocity or cruelty.  This single reference was not so inflammatory as to require a new trial.  Commonwealth v. Judge, 420 Mass. 433, 452 (1999).

Finally, the defendant argues that the prosecutor argued facts not in evidence when he said, “[The victim] died so the defendants could cover up the rape they had just committed and what they had done.  And they ran up the hill afterwards together . . . .”  The defendant contends there was no evidence to support this theory.  There was no objection.  There was evidence to support a finding of aggravated rape by joint venture, that the defendant acted as lookout for Mancias, and evidence from which the jury could have found that they fled together.  The prosecutor was entitled to marshal the evidence “in favor of his client.”  Commonwealth v. Johnson, 374 Mass. 453, 459 (1978), S.C., 409 Mass. 405 (1991).  The argument, although not one that flows inevitably from the evidence, asked the jury to draw an inference that was “reasonable and possible” (citation omitted).  Commonwealth v. Marquetty, 416 Mass. at 452.  Moreover, the absence of an objection to this statement from vigilant defense counsel is some indication that the comment did not land a foul blow that was unfairly prejudicial.  See Commonwealth v. Toro, 395 Mass. 354, 360 (1985).  We conclude that the argument did not create a substantial likelihood of a miscarriage of justice.  Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).

7.  Motion to reduce verdicts.  The defendant moved postverdict, pursuant to Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979), to order entry of findings of not guilty or, alternatively, to order entry of verdicts on lesser included offenses.  The motion was denied, and the defendant appeals from the denial of his motion.  A judge’s decision to exercise the broad powers conferred by rule 25 (b) (2)[5] is reviewed for abuse of discretion or error of law.  Commonwealth v. Lyons, 444 Mass. 289, 291 (2005).  We do not substitute our judgment for that of the trial judge.  Other than arguing the facts of the case in the light most favorable to himself, the defendant has not shown that the judge abused his discretion.

8.  Review under G. L. c. 278, § 33E.  We have reviewed the entire record, the briefs, and heard oral argument, and conclude that there is no reason to reduce the degree of guilt or order a new trial.  However, the conviction on the indictment alleging aggravated rape is duplicative of the conviction of felony-murder and must be dismissed.  See Commonwealth v. Lopes, 455 Mass. 147, 148 (2009).

9.  Conclusion.  The judgment of conviction of murder in the first degree is affirmed, as is the denial of the postverdict motion under rule 25 (b) (2).  The matter is remanded for entry of an order dismissing as duplicative the conviction on the indictment alleging aggravated rape.

So ordered.

Full-text Opinions

GREEN, J. (dissenting, with whom Blake, J., joins).  In her statement to police, the defendant admitted that she stole the guns at issue from the victim (her father).  I agree with the majority that the evidence of operability of the .45 caliber weapon, while not overwhelming, when viewed in a light most favorable to the Commonwealth was sufficient to establish the element of operability.  See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1978).  I dissent, however, from the majority’s conclusion that the evidence was insufficient to allow a rational jury to conclude that the .38 caliber weapon was also a firearm.

The victim testified at trial that he purchased the .38 caliber weapon new from a gun dealer, who told him that it worked.  Though the dealer’s statement that the gun worked at the time of sale was hearsay, it was admitted without objection. In the absence of an objection, hearsay testimony is properly admitted, and the jury is “entitled to give [the statement] such probative effect as they deem[] appropriate.”  Commonwealth v. Julien, 59 Mass. App. Ct. 679, 687 (2003), quoting from Commonwealth v. Paniaqua, 413 Mass. 796, 803 (1992).[9]  Put another way, “our consideration [of the sufficiency of the evidence] ‘is to be measured upon that which was admitted in evidence without regard to the propriety of the admission.’”  Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting from Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).  The victim testified that he loaded the weapon with ammunition on occasion.  Though as the majority observes evidence that the gun was loaded with ammunition is inadequate standing alone to establish that the gun was operable, it constitutes some evidence in support of that proposition.  See Commonwealth v. Hollister, 75 Mass. App. Ct. 729, 732 (2009).^[10]  To prove operability, the Commonwealth may rely on reasonable inferences drawn from circumstantial evidence including, as in the present case, an inference that a handgun purchased new, working at the time of purchase, loaded with ammunition from time to time by its owner (a security professional), and carried by him in the regular course of his duties remained in operating condition at the time of its theft, particularly in the absence of any evidence that its condition had deteriorated or otherwise changed during the intervening period.

The majority opinion discounts the value of the dealer’s statement to the victim by challenging its foundation.  However, in the absence of an objection, any deficiency in the foundation for the dealer’s statement, or any challenge to its veracity, goes solely to the weight to be accorded that evidence, and accordingly is within the province of the jury.  See Commonwealth v. Zitano, 23 Mass. App. Ct. 403, 407 (1987).  In assessing the sufficiency of the evidence of the defendant’s guilt, “[i]t makes no difference whether we . . . would as jurors have voted to acquit [the defendant] or whether we ourselves think that there is some reasonable doubt.  The question posed by  Jackson [v. Virginia, 443 U.S. 307, 324 (1979),] is whether ‘any’ rational jury could on the evidence presented think [the .38 caliber weapon was operable] so likely as to exclude all reasonable doubts. . . .  A rational jury might well have acquitted without violating its oath; but, drawing all reasonable inferences in favor of the prosecution, a rational jury could also convict.”  Stewart v. Coalter, 48 F.3d 610, 616 (1st Cir.), cert. denied, 516 U.S. 853 (1995).  In my view, the fact that the dealer’s representation was hearsay, offered without explanation of the basis of his knowledge, and even self-serving, does not render irrational a jury’s conclusion adopting the unremarkable suggestion that a .38 caliber handgun, purchased as new and represented by the dealer as being in working condition, was capable of firing a bullet.

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-12024

SCOTT COOPER  vs.  COMMONWEALTH.

April 1, 2016.

Supreme Judicial Court, Superintendence of inferior courts.  Practice, Civil, Notice of appeal.  Notice, Timeliness.

Scott Cooper appeals from a judgment of the county court denying, without a hearing, Cooper’s petition for relief under G. L. c. 211, § 3, or for relief in the nature of mandamus.  We affirm.

In 2002, Cooper was convicted of forcible rape of a child and other offenses.  His convictions were affirmed by the Appeals Court in an unpublished decision.  Commonwealth v. Cooper, 69 Mass. App. Ct. 1110 (2007).  In 2013, Cooper filed a motion for a new trial, which was denied by a judge in the Superior Court (motion judge).  He filed a late notice of appeal and was advised that he must file a motion for an extension of time to do so.  He filed such a motion shortly thereafter, but apparently it was misplaced in the clerk’s office and was not acted on for over two months.  Once it was found, the motion judge allowed the motion and gave him forty-five days to file his notice of appeal.  Cooper did not file a new notice of appeal at that point, nor did he request that his original notice of appeal be deemed filed.  The record has not been assembled, and no appeal has been docketed in the Appeals Court.  It appears that Cooper discovered this when he filed a motion to file his brief late in the Appeals Court and was informed that he had no matter pending in that court.  He wrote to the Chief Justice of the Trial Court seeking assistance.  His request was forwarded to various court personnel, but no further action on his appeal was taken.  Ultimately, Cooper filed his petition in the county court for relief pursuant to G. L. c. 211, § 3, or for relief in the nature of mandamus pursuant to G. L. c. 249, § 5.  He subsequently filed a motion in the single justice session to transfer the matter to a single justice of the Appeals Court, stating that he was seeking only leave to file a late notice of appeal.  The single justice denied all relief without a hearing.

Cooper has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a petitioner seeking relief from an interlocutory ruling of the trial court to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.”  The rule does not apply here, as Cooper is not challenging any interlocutory ruling of the trial court.  See, e.g., Santiago v. Young, 446 Mass. 1006, 1006 (2006) (rule 2:21 does not apply where petitioner is “not challenging any interlocutory ruling of the trial court, but rather the inaction of the court”).  Nonetheless, it is clear on the record that, where Cooper did not avail himself of the opportunity to file a new notice of appeal after he was granted an extension of time to do so, the single justice was not obligated to grant extraordinary relief.

That said, we can see no reason why this appeal has not been permitted to proceed.  Cooper had the right to appeal from the denial of his motion for a new trial.  He did in fact file a late notice of appeal, albeit without first receiving an extension of time.  Once he did receive an extension — belatedly, for reasons attributable to the clerk and through no fault of his own — it would have been a simple matter for the Superior Court to recognize that a notice of appeal had already been filed, to which the motion applied, and to treat that notice of appeal as the operative notice.  We trust that if Cooper so requests in the Superior Court, his original notice of appeal will now be deemed properly filed, the record will promptly be assembled, and Cooper’s appeal will proceed in the ordinary course.

Judgment affirmed.

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

Scott Cooper, pro se.

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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-11906

PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION  vs.  EDWARD A. BETTENCOURT.

Suffolk.     October 6, 2015. – April 6, 2016.

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

Public Employee Retirement Administration Commission.  Retirement.  Public Employment, Retirement benefits, Forfeiture of retirement benefits.  Constitutional Law, Excessive fines clause.

Civil action commenced in the Superior Court Department on December 19, 2012.

The case was heard by Garry V. Inge, J., on motions for judgment on the pleadings.

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

Paul T. Hynes (Michael R. Keefe with him) for the defendant.

Peter Sacks, State Solicitor (Judith A. Corrigan, Special Assistant Attorney General, with him) for the plaintiff.

Ian O. Russell & Patrick N. Bryant for Massachusetts Coalition of Police, amicus curiae, submitted a brief.

BOTSFORD, J.  The Commonwealth’s law governing public employee retirement systems and pensions requires that a public employee forfeit the retirement and health insurance benefits (retirement allowance or pension) to which the employee would be entitled upon conviction of a crime “involving violation of the laws applicable to [the employee’s] office or position.”  G. L. c. 32, § 15 (4) (§ 15 [4]).[1]  We consider here whether this mandatory forfeiture of a public employee’s retirement allowance qualifies as a “fine” under the excessive fines clause of the Eighth Amendment to the United States Constitution.  We conclude that it does and that, in the circumstances of this case, the mandatory forfeiture of the public employee’s retirement allowance is “excessive.”[2]

Background.[3]  Edward A. Bettencourt was first appointed as a police officer in the city of Peabody in October, 1980, and became a member of the Peabody retirement system on November 7, 1982.[4]  Bettencourt was promoted to the rank of sergeant around 1990, and promoted again to serve as a lieutenant in 2003.  In the early morning hours of December 25, 2004, Bettencourt was on duty as a watch commander, and he knowingly accessed, through theInternet and without permission, the Massachusetts human resources division (HRD) computer system, and specifically the HRD Internet site containing individual applicant record information.  Gaining the unauthorized access, he viewed the civil service promotional examination scores of twenty-one other police officers, including four officers who were his direct competitors for a promotion to the position of captain in the police department.  In order to view the examination scores of these other officers, Bettencourt created a distinct user account for each officer, using the Social Security numbers and birth dates of the officers.

On October 26, 2006, Bettencourt was indicted for unauthorized access to a computer system, in violation of G. L. c. 266, § 120F; the indictment contained twenty-one separate counts.  On April 4, 2008, at the conclusion of a jury-waived trial before a judge in the Superior Court (trial judge), Bettencourt was found guilty on all counts.[5]  Bettencourt filed an application for voluntary superannuation retirement with the Peabody retirement board (board) on the same day he was found guilty.  As of that date, he had served as a Peabody police officer for over twenty-seven years and had been a member of the Peabody retirement system for over twenty-five years.  On May 23, 2008, after learning of Bettencourt’s convictions, the board held an evidentiary hearing to determine whether, because of these convictions, Bettencourt remained eligible for his retirement allowance.  A majority of the board concluded that none of the convictions was a “violation of the laws applicable to his office or position” under § 15 (4), and, thus, his application for superannuation retirement was to be processed, subject to the approval of the public employee retirement administration commission (PERAC).  On September 10, 2008, PERAC denied Bettencourt’s retirement application because it concluded that Bettencourt’s criminal convictions did relate to his office or position, and therefore, under § 15 (4), he was not entitled to receive any retirement allowance.

Bettencourt sought certiorari review of PERAC’s decision in the Peabody Division of the District Court Department, arguing that his convictions did not trigger the forfeiture mandated by § 15 (4) because they were not related to his office or position, and, alternatively, that the forfeiture of his pension would constitute an “excessive fine” in violation of the Eighth Amendment.  A judge in the District Court concluded that Bettencourt’s convictions were not sufficiently related to his office or position as to trigger forfeiture under § 15 (4), and, therefore, the judge did not reach the “excessive fine” argument.  PERAC sought certiorari review of the judge’s decision in the Superior Court.  A Superior Court judge affirmed the District Court decision, and PERAC appealed to the Appeals Court.  In a memorandum and order pursuant to its rule 1:28, the Appeals Court, concluding that Bettencourt’s convictions were linked directly to his office or position, vacated the judgment and remanded the case to the District Court for consideration of Bettencourt’s alternative argument that forfeiture of his pension constituted an excessive fine.  Public Employee Retirement Admin. Comm’n v. Bettencourt, 81 Mass. App. Ct. 1113 (2012).

On remand, the District Court judge concluded that forfeiture of a retirement allowance pursuant to § 15 (4) was a fine under the Eighth Amendment and that the fine in this case, forfeiture of Bettencourt’s lifetime retirement allowance, as compared to the harm suffered by the other officers and the public, was excessive and violated the Eighth Amendment.  PERAC again sought certiorari review in the Superior Court.  In an amended decision dated February 6, 2014, a Superior Court judge reversed, ruling that forfeiture of an employee’s pension rights under § 15 (4) does not constitute a fine for purposes of the Eighth Amendment because “the right to a pension is conditioned on not incurring criminal convictions related to public service.”  Bettencourt filed a timely appeal in the Appeals Court, and we transferred the case to this court on our own motion.

Discussion.  General Laws c. 32, § 15 (4), provides:

“Forfeiture of pension upon misconduct.  – In no event shall any member [of a retirement system] after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance under the provisions of [G. L. c. 32, §§ 1 through 28], inclusive, nor shall any beneficiary be entitled to receive any benefits under such provisions on account of such member.  The said member or his beneficiary shall receive, unless otherwise prohibited by law, a return of his accumulated total deductions; provided, however, that the rate of regular interest for the purpose of calculating accumulated total deductions shall be zero.”

At this juncture, Bettencourt does not challenge the Appeals Court’s conclusion that his convictions under G. L. c. 266, § 120F, involved violations of a law “applicable to his office or position” within the meaning of § 15 (4), and, thus, triggered imposition of the section’s forfeiture provisions.[6]  Rather, he focuses solely on his Eighth Amendment claim.[7]  That claim has two parts:  (1) the forfeiture of his pension under § 15 (4) by its terms qualifies as a fine; and (2) the fine is excessive.  This court has considered the claim’s second part, excessiveness, in two previous cases, MacLean v. State Bd. of Retirement, 432 Mass. 339, 347-350 (2000), and Maher v. Retirement Bd. of Quincy, 452 Mass. 517, 523-525 (2008), cert. denied, 556 U.S. 1166 (2009).[8]  We have never addressed the threshold question whether the forfeiture of a public employee’s pension under § 15 (4) is a “fine” under the Eighth Amendment.  We consider that question first.

1.  Is the forfeiture required by § 15 (4) a fine?  a.  Property requirement.  As it noted in United States v. Bajakajian, 524 U.S. 321, 327 (1998), the United States Supreme Court has had “little occasion” to interpret the Eighth Amendment’s excessive fines clause.  In that case, following the lead of two earlier decisions, the Court explained that “at the time the Constitution was adopted, ‘the word “fine” was understood to mean a payment to a sovereign as punishment for some offense.’”  Id. at 327, quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265 (1989).[9]  A fine may involve the payment of money to the government, but as Bajakajian makes clear, the forfeiture of property also may qualify as a fine.[10]  Moreover, the Supreme Court has held that the excessive fines clause does not apply solely to criminal cases, such as Bajakajian; a civil forfeiture proceeding in which the government seeks the forfeiture of particular property on account of its owner’s conviction of a crime also implicates the clause.  See Austin v. United States, 509 U.S. 602, 608-610, 618, 621-622 (1993) (civil proceeding initiated by government seeking to forfeit auto body shop and mobile home as instrumentalities of drug offense to which property owner pleaded guilty; forfeiture sought by government qualified as fine under Eighth Amendment).  “The Excessive Fines Clause thus ‘limits the government’s power to extract payments, whether in cash or in kind, “as punishment for some offense.”‘. . .  Forfeitures — payments in kind — are thus ‘fines’ if they constitute punishment for an offense.”  Bajakajian, supra at 328, quoting Austin, supra at 609-610.

To decide whether the forfeiture of Bettencourt’s pension qualifies as a fine under the Supreme Court’s definition, the first question to be answered is whether the forfeiture operates to “extract payments” from him — that is, requires the transfer of money or some other form of property of Bettencourt’s to the government.  See Hopkins v. Oklahoma Pub. Employees Retirement Sys., 150 F.3d 1155, 1162 (10th Cir. 1998) (considering forfeiture of retired State employee’s pension as result of criminal bribery conviction:  “Implicit in [the Supreme Court’s] interpretation of the Excessive Fines Clause is the notion that it applies only when the payment to the government involves turning over ‘property’ of some kind that once belonged to [the employee]“).[11]

In response to this first question, Bettencourt contends that the mandatory forfeiture under § 15 (4) has required him to transfer or turn over property — his right to receive his retirement allowance — to the Commonwealth.  PERAC, on the other hand, argues that Bettencourt had no property interest in the retirement allowance being forfeited.  Rather, in PERAC’s view, Bettencourt, as a member of the Peabody retirement system, had only a future interest in receiving retirement allowance payments, one that was wholly contingent on his not being convicted of a crime involving misconduct in office, and “contingent, future interests are not property.”

We do not share PERAC’s view.  Under the Commonwealth’s contributory retirement system, the relationship between a member and the system is contractual.  See G. L. c. 32, § 25 (5).[12]  However, we previously have noted that in this context, the term

“‘[c]ontract’ (and related terms such as rights, benefits, protection) should be understood . . . in a special, somewhat relaxed sense. . . .  It is not really feasible — nor would it be desirable — to fit so complex and dynamic a set of arrangements as a statutory retirement scheme into ordinary contract law which posits as its model a joining of the wills of mutually assenting individuals to form a specific bargain. . . .  When, therefore, the characterization ‘contract’ is used, it is best understood as meaning that the retirement scheme has generated material expectations on the part of employees and those expectations should in substance be respected.  Such is the content of ‘contract.’

“. . .

“The contract so ‘envisaged [by G. L. c. 32, § 25 (5),] is under the shelter of the impairment-of-contract clause, or, what amounts to much the same thing, the due process clause of the Federal Constitution and State constitutional provisions cognate to the latter. . . .  [A] retirement plan establishing a contractual relationship[,] . . . whether viewed strictly as contract or as property[,] may be constitutionally guarded against impairment” (emphasis supplied; footnote omitted).

Opinion of the Justices, 364 Mass. 847, 861, 863 (1973).[13]  See Madden v. Contributory Retirement Appeal Bd., 431 Mass. 697, 701 (2000) (under contractual relationship between State retirement system members and State, “[t]here can be no change to the system that deprives members of benefits as long as they have paid the required contributions”).

As Opinion of the Justices and Madden reflect, this court has long held the view that a public employee who is a member of a retirement system holds an interest in retirement benefits that originates in a “contract” and in substance amounts to a property right.  See Garney v. Massachusetts Teachers’ Retirement Sys., 469 Mass. 384, 389 (2014) (G. L. c. 32, § 15, “involves the forfeiture of property”).  See also Collatos v. Boston Retirement Bd., 396 Mass. 684, 686 (1986).[14]^,[15]  Cf. G. L. c. 208, § 34 (property constituting marital estate subject to division in divorce includes vested and unvested retirement benefits); Krapf v. Krapf, 439 Mass. 97, 104 (2003) (pension rights “often constitute valuable marital assets”).

In arguing that Bettencourt had no property interest in his retirement allowance, as stated previously, PERAC posits that an employee’s interest is always contingent on not being convicted of an offense “applicable to his office” under § 15 (4); in contractual terms, this contingency, in PERAC’s view, is a condition precedent that must be satisfied before the employee’s right to retirement benefits “matures” into a contractual right, see Haverhill v. George Brox, Inc., 47 Mass. App. Ct. 717, 719 (1999), and without so maturing, no property right is or could be created.  In support of this argument, PERAC relies on three decisions of courts applying the laws of other States:  Hopkins, 150 F.3d at 1162 (holding that, under Oklahoma law, public employee convicted of accepting bribe while in office had no property right in pension benefits because pension was always contingent on maintaining “honorable service” while in office; employee’s acceptance of bribe constituted breach of duty of honorable service, and as result, employee had no “vested right” in pension); Hames v. Miami, 479 F. Supp. 2d 1276, 1288 (S.D. Fla. 2007) (11th Cir. 2008) (under Florida law, public employee has no property interest in pension because pension vests “subject to the conditions in the forfeiture statute”); and Scarantino v. Public Sch. Employees Retirement Bd., 68 A.3d 375, 385 (Pa. Commw. Ct. 2013) (under Pennsylvania law, public employee’s right to pension depends upon certain conditions precedent, including that “an employee cannot have been convicted of . . . [certain] crimes”).

We are not persuaded by the reasoning in these cases.  If an employee has a protected contract right and, derivatively, a property interest in retirement benefits, the fact that the benefits may be subject to forfeiture on account of misconduct does not change the fundamental character of the contract right or property interest.  Rather, it simply means that the employee will lose his or her right and interest as a result of the misconduct.[16]

PERAC also argues that no forfeiture occurred here because, through the operation of § 15 (4), Bettencourt simply was foreclosed from receiving retirement benefits in the future, and nothing was actually “extracted” from him and paid to the government as required to trigger review under the Eighth Amendment.  We disagree with PERAC that the phrase “extract payments . . . in cash or in kind,” as used by the Supreme Court in Austin¸ 509 U.S. at 609-610, and Bajakajian, 524 U.S. at 328, means that there literally must be a physical transfer of tangible property from the individual to the State; “property” exists in tangible and intangible form.  Under the Commonwealth’s public employee retirement system, the employee makes contributions to the system during the period of his or her active employment through salary deductions.  When the employee retires for superannuation (assuming no beneficiaries), he or she retires with an allowance that is comprised of an “annuity share” actuarially determined on the basis of his or her accumulated deductions, and a “pension share” that the governmental unit is required to pay and that represents “the usually considerable difference needed to make good the normal yearly allowance paid to the [employee] until his death.”  Opinion of the Justices, 364 Mass. at 854.  The pension share that the employee is entitled to receive from the government during retirement is money, i.e., property.  If the employee is obligated to forfeit his or her retirement allowance pursuant to § 15 (4), the pension share reverts to the government; put another way, by operation of § 15 (4), the pension share is effectively transferred from the employee to the government.  We consider this effective transfer of property to qualify as an extraction of payment from the employee to the sovereign within the meaning of Austin and Bajakajian.

To summarize, at the point that Bettencourt, as a Peabody police officer, became a contributing member of the Peabody retirement system with deductions taken from his salary in accordance with governing statutes and rules, he acquired a protected interest in the retirement allowance provided by the retirement system that amounted to a property interest.  See Opinion of the Justices, 364 Mass. at 863.[17]  This is not to say that Bettencourt, or any public employee, may not lose his right to receive his retirement allowance as a result of committing a crime connected to his employment.  Section 15 (4) expressly requires this result, and Bettencourt raises no challenge to the authority of the Legislature to enact such a statute.  But the fact that § 15 (4) mandates forfeiture of an employee’s retirement allowance when the employee is convicted of misconduct in office does not mean that the employee lacked a property interest in that allowance prior to the employee’s conviction.  Rather, it is precisely this property interest that the employee is required to forfeit, and the forfeiture effects what is in substance an extraction of payments from the employee to the Commonwealth.

b.  Punishment requirement.  A forfeiture of property only qualifies as a fine under the Eighth Amendment if it constitutes punishment.  See Bajakajian, 524 U.S. at 328.  Bettencourt argues that the required statutory forfeiture here did operate to punish him for his criminal offense; PERAC, pointing to MacLean, 432 Mass. at 351, characterizes the mandatory forfeiture as serving remedial, nonpunitive purposes.

In MacLean, 432 Mass. at 351, in the context of considering a retired public employee’s argument that the forfeiture of his retirement allowance violated double jeopardy principles, we stated that “[a]lthough § 15 (4) certainly contains an element of deterrence, it also serves other, nonpunitive purposes, such as protection of the public fisc and preserving respect for government service.”  But there is no double jeopardy issue raised in this case, and for purposes of the excessive fines clause, the Supreme Court has made clear that unless the sanction at issue — here, forfeiture — can be said to serve “solely” a remedial purpose, it qualifies as punishment.  Austin, 509 U.S. at 610, quoting United States v. Halper, 490 U.S. 435, 448 (1989).  Accord Bajakajian, 524 U.S. at 329 n.4, 331 n.6.

In Bajakajian, the Court described the characteristics of the currency forfeiture at issue there that indicated it qualified as punishment:  “The forfeiture is . . . imposed at the culmination of a criminal proceeding and requires conviction of an underlying felony, and it cannot be imposed upon an innocent owner.”  Id. at 328.  Forfeiture pursuant to § 15 (4) meets all of these criteria.  It operates as “an automatic legal consequence of conviction of certain offenses,” MacLean, supra at 343; it only comes into play after the employee’s final conviction of one of those offenses; and it cannot be imposed on an employee who is not convicted of committing such an offense.  We conclude, therefore, that the forfeiture required by § 15 (4) qualifies as “punishment.”  Accordingly, because the forfeiture does involve an “extraction of payments” and is punitive, it is a fine within the meaning of the excessive fines clause of the Eighth Amendment.  We turn to the question whether the forfeiture is excessive.

2.  Was the fine excessive?  Bettencourt argues that the mandated forfeiture of his retirement benefits is excessive because the amount of the forfeiture is grossly disproportional to the gravity of his offenses.  The District Court judge agreed.[18]

We review the District Court judge’s determination of excessiveness de novo.  Maher, 452 Mass. at 523.[19]  “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality:  The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.”  Bajakajian, 524 U.S. at 334.  In conducting the review, we are to compare the forfeiture amount to that offense, and “[i]f the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense, it is unconstitutional.”  Id. at 337.  See Maher, supra at 522.  As the party challenging the constitutionality of the forfeiture, Bettencourt bears the burden of demonstrating that the forfeiture is excessive.  Id. at 523.

The amount of the forfeiture is the first issue to consider.  Bettencourt estimated the value of his pension benefits to be approximately $ 1,487,940 and the value of his health care benefits to be approximately $ 482,500, or approximately $ 1.9 million in total.  In contrast, PERAC introduced an actuarial estimate stating that the value of Bettencourt’s pension benefits, independent of the health benefits, was $ 659,000.  Although PERAC disputes Bettencourt’s calculation of health benefits, PERAC agrees that they confer some value.  Accepting for purposes of discussion that PERAC’s estimate is correct, Bettencourt would face forfeiture of $ 659,000 at a minimum, plus the value of health insurance benefits.[20]  Bettencourt accrued his interest in the forfeited benefits over more than twenty-five years of public service.

Turning to the gravity of the underlying offenses that triggered the forfeiture, we are called upon to gauge the degree of Bettencourt’s culpability and, in that regard, to consider the nature and circumstances of his offenses, whether they were related to any other illegal activities, the aggregate maximum sentence that could have been imposed, and the harm resulting from them.  See Maher, 452 Mass. at 523, citing Bajakajian, 524 U.S. at 337-339; MacLean, 432 Mass. at 346.  We consider these factors in order.

First, with respect to the nature and circumstances of the offenses, Bettencourt was convicted of twenty-one counts of unauthorized access to a computer system in violation of G. L. c. 266, § 120F,[21] during a single shift of duty; in the period of access, he viewed private information, including civil service examination scores relating to several police officers within his department.  In sentencing Bettencourt, the trial judge observed that there was no evidence that Bettencourt made any use at all of this private information — i.e., no evidence of any gain to Bettencourt other than the satisfaction of his curiosity; the essence of his crime, in substance, was one of “snooping.”

Second, Bettencourt’s offenses were wholly unrelated to other illegal activities.  Bettencourt had no prior criminal record, and there is nothing before us suggesting that he had engaged in any criminal or illegal misconduct besides this one episode of accessing the computer files without authority.

The third factor focuses on the maximum potential penalties for Bettencourt’s offenses.  See Bajakajian, 524 U.S. at 338-339.  In this regard, “the maximum punishment authorized by the Legislature is the determinative factor.”  Maher, 452 Mass. at 524 n.12.  See MacLean, 432 Mass. at 348.[22]  The maximum punishment authorized by the Legislature for a single offense under G. L. c. 266, § 120F, a misdemeanor, is imprisonment in a house of correction for thirty days and a fine of not more than $ 1,000, which suggests to us that the Legislature did not view this crime as a grave, serious offense.  See Bajakajian, 524 U.S. at 338-339 (maximum possible punishment of six months’ imprisonment and $ 5,000 fine confirms “minimal level of culpability”).  Compare Maher, supra at 524 (discussing maximum penalties of felonies of which retired public employee had been convicted).  The aggregate maximum penalty that could have been imposed on Bettencourt — imprisonment in the house of correction for 630 days and a fine of $ 21,000[23] — does not indicate a substantial level of culpability for purposes of this analysis, particularly where the potential period of imprisonment is relatively low as compared to that of other crimes.[24]

Harm caused by the offense is the fourth factor.  PERAC contends that Bettencourt’s offenses were a breach of the public trust that was “especially serious because it involve[d] a police officer, in command of a police department, breaking the law in the police station, by willfully impersonating fellow police officers while using their personal information to do so.”  We recognize that Bettencourt’s offenses certainly violated the privacy rights of his fellow officers, and — as will always be the case when a public employee commits a crime by violating a law connected to his or her office or position — that there was a breach of the public trust.  However, no harm to the public fisc was accomplished or threatened here, compare Maher, supra at 524-525, there was no improper or illegal gain involved, compare MacLean, supra at 349-350, and, as the trial judge recognized, the offenses did not warrant concern about protection of the public.  PERAC also argues that Bettencourt’s offenses undermined the integrity of the civil service promotion process because the knowledge of the identities of his main competitors for promotion to captain and their examination scores provided an advantage to him.  But, as the District Courtjudge stated, despite PERAC’s attempts to speculate about how Bettencourt could have gained from knowledge of the scores, nothing in the record demonstrates that Bettencourt received any personal benefit, profit, or gain from his actions.  Over-all, although there certainly was harm caused by Bettencourt, it was relatively small as compared to our other cases.[25]

Considering the factors discussed above, we conclude that the complete forfeiture of Bettencourt’s retirement benefits in excess of $ 659,000, accrued over a lengthy career as a full-time municipal police officer, was not proportional to the gravity of the underlying offenses of which he was convicted.  In sum, the forfeiture violates the excessive fines clause of the Eighth Amendment.

3.  If the mandatory forfeiture of a public employee’s retirement allowance qualifies as an excessive fine, what is the appropriate remedy?[26]  Although the United States Supreme Court in Bajakajian declined to consider the issue,[27] we recognize that like the trial judge in Bajakajian (see note 27, supra), as PERAC points out, a number of courts, after concluding that a statutory forfeiture operated as an excessive fine in the particular circumstances of the case, have proceeded to determine a forfeiture amount that would not be excessive, and have imposed it.  See, e.g., United States v. Castello, 611 F.3d 116, 121 (2d Cir. 2010), cert. denied, 562 U.S. 1251 (2011) (where forfeiture amount is constitutionally excessive, court must impose alternative fine in exact amount over which fine would become excessive); United States v. Sarbello, 985 F.2d 716, 724 (3d Cir. 1993) (holding in context of case involving Racketeer Influenced and Corrupt Organizations Act violations that lower court is required to impose maximum fine amount that would not be excessive under Eighth Amendment).[28]  Cf. United States ex rel. Bunk v. Gosselin World Wide Moving, N.V., 741 F.3d 390, 405-410 (4th Cir. 2013) (civil qui tam actions under Federal False Claims Act; relator’s acceptance of less than statutory False Claims Act penalty was permissible solution to Eighth Amendment excessive fines concern and amount agreed upon did not qualify as constitutionally excessive).  But see, e.g., United States v. One Parcel of Real Prop. Located at 461 Shelby Rd. 361, Pelham, Ala., 857 F. Supp. 935, 939-940 (N.D. Ala. 1994) (declining to adopt holding in Sarbello and impose alternative fine, noting difficulty judges would face in determining exact amount defendant could be fined without violating excessive fines clause).

We agree with PERAC that, as a general proposition, where a court determines that imposition of a statutorily mandated forfeiture would violate the Eighth Amendment’s excessive fines  clause, it is likely within the court’s authority to determine a level or amount of forfeiture or fine that would be constitutionally permissible –- whether the statutory forfeiture is criminal (as in the Castello and Sarbello cases) or, as here, civil in nature.  However, we decline to attempt such a determination in this case.  We do so because even if we put to one side the inherent difficulty in determining the maximum amount of retirement allowance forfeiture that is constitutionally permissible,[29] implementation of this judicially established forfeiture determination would involve the creation of procedures to be carried out by administrative bodies such as the local retirement board and perhaps PERAC, for which there is currently no legislative authorization or direction.[30]  Stated in more general terms, the decision that a public employee’s retirement allowance should be forfeited completely upon conviction of certain types of crimes constitutes a policy choice for the Legislature to make — as it has by enacting § 15 (4).

This is the first case in which this court has held (rather than assumed) that the forfeiture required by § 15 (4) is subject to the excessive fines clause of the Eighth Amendment, and the first case in which the court has determined that a total forfeiture of a public employee’s pension pursuant to § 15 (4) would violate that clause.  Accordingly, the Legislature has not had the opportunity to consider what should occur if and when such a judicial determination of excessiveness is made, and questions of policy abound.  For example, assuming that where a court finds that total forfeiture of a public employee’s pension would be constitutionally excessive, the Legislature would seek to require forfeiture of the maximum amount a court found constitutionally permissible — an assumption that itself obviously incorporates a policy judgment — what method for implementation of such a decision would the Legislature choose?  The method suggested by PERAC?[31]  A method that distributed to the employee a reduced benefit payment on a periodic basis immediately following the court’s judgment, calculated to account for the constitutionally permissible forfeiture amount?  A different method altogether?  Or, in light of our determination that the excessive fines clause applies to the statutory pension forfeiture program prescribed by § 15 (4), might the Legislature choose to establish a wholly different forfeiture system — for example, one that provided for different percentages of pension forfeiture depending on the nature and circumstances of the crime?

These types of determinations are ones that fit squarely within the legislative, not the judicial, domain, and we believe that the more prudent approach is to defer to the Legislature for its resolution of such issues in the first instance.  See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006) (where Court determines statute is unconstitutional as applied, its “ability to devise a judicial remedy that does not entail quintessentially legislative work often depends on how clearly [it has] already articulated the background constitutional rules at issue and how easily [it] can articulate the remedy”).

Conclusion.  There is no question that the mandatory forfeiture provisions of § 15 (4) serve an important public interest in protecting the honesty and integrity of those who are paid with public funds to carry out the responsibilities of government.  We emphasize that the Legislature properly may provide for such forfeitures.  We hold today, however, that under the pension forfeiture scheme established by G. L. c. 32, § 15 (4), the complete forfeiture of a public employee’s retirement allowance upon conviction of a crime “involving violation of the laws applicable to his office or position” is a fine that is subject to the Eighth Amendment’s proscription against excessive fines.  In the present case, because § 15 (4), as applied to Bettencourt, results in the imposition of an excessive fine under the Eighth Amendment, the statute cannot be enforced, and his retirement allowance cannot be forfeited pursuant to the statute’s terms.[32]  Any changes to the system of retirement allowance forfeiture established by § 15 (4) implicate policy determinations that the Legislature should have an opportunity to make in the first instance.

The judgment of the Superior Court is vacated, and the case remanded to that court for entry of judgment affirming the judgment of the District Court.

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-11964

COMMONWEALTH  vs.  MANUEL ANTONIO MERCADO.

Suffolk.     February 10, 2016. – April 6, 2016.

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

Controlled Substances.  Alien.  Constitutional Law, Plea, Assistance of counsel, Retroactivity of judicial holding. Due Process of Law, Plea, Assistance of counsel.  Practice, Criminal, Plea, Assistance of counsel, Retroactivity of judicial holding.

Complaint received and sworn to in the East Boston Division of the Boston Municipal Court Department on February 26, 1990.

A motion for a new trial, filed on March 18, 2015, was heard by John E. McDonald, Jr., J.

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

Benjamin L. Falkner for the defendant.
John P. Zanini, Assistant District Attorney, for the Commonwealth.

Emma C. Winger, Jennifer Klein, & Wendy S. Wayne, Committee for Public Counsel Services, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

CORDY, J.  In Commonwealth v. Sylvain, 466 Mass. 422, 423-424 (2013), S.C., 473 Mass. 832 (2016), we affirmed our decision in Commonwealth v. Clarke, 460 Mass. 30 (2011), that, under Massachusetts law, defense counsel’s duty to provide noncitizen defendants with accurate advice regarding the deportation consequences of pleading guilty (or being convicted at trial), as articulated by the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 360 (2010), was to be applied retroactively on collateral review.[1]  See Clarke, supra at 31.  We set the date of retroactivity at April 1, 1997, the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (IIRIRA), which, together with the enactment of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (effective Apr. 24, 1996) (AEDPA), made deportation for noncitizens convicted of certain criminal offenses virtually inevitable.  See Padilla, supra at 363-364.  See also Clarke, supra at 41.

The offense to which the defendant pleaded guilty is possession of a class A substance (heroin) in violation of G. L. c. 94C, § 34.  Although he received a suspended sentence, the statute provides for a possible penalty of up to two years in a house of correction, and consequently, deportation was virtually inevitable under the provisions of AEDPA.[2]  His guilty plea was entered after the effective date of AEDPA, but before the effective date of IIRIRA.  Thus, the first issue we must decide in this case is whether the retroactivity affirmed in the Sylvain case should extend back to the effective date of AEDPA, April 24, 1996, for convictions of offenses for which AEDPA eliminated the then available protections (or discretionary waivers) for noncitizens who were sentenced to less than one year of imprisonment for controlled substance convictions.  For the reasons articulated in Clarke and Sylvain, we conclude that it should.[3]

The next issue we need to decide is whether, in the circumstances of this case, the defendant’s motion for a new trial was properly denied.  For the reasons set forth below, we vacate the denial and remand the case to the motion judge for further proceedings.

It is uncontested that the defendant came to the United States in 1987 at the age of fourteen.  Most of his family lives in Massachusetts, but his father still resides in his home country of the Dominican Republic.  The defendant is not a United States citizen and his primary language is Spanish.  He was arrested at Logan Airport on February 23, 1990, and charged with possession with intent to distribute a class A substance (heroin).  After his arraignment, he fled Massachusetts and lived in Florida.[4]

The defendant returned to Massachusetts in 1996, his default was removed, and he was held in custody pending the resolution of the criminal complaint.  On February 7, 1997, he pleaded guilty to the lesser charge of possession of a class A substance, for which he was sentenced to one year in a house of correction suspended for one year with community service requirements.[5]

More than seventeen years later, on August 4, 2014, he received a notice to appear in which the United States Department of Homeland Security alleged that he was a removable alien because of his conviction of possession of a class A substance.[6]  On March 18, 2015, the defendant filed a motion for a new trial in the present case, alleging that his attorney was constitutionally ineffective for failing to advise him adequately as to the likely deportation consequences of his guilty plea.

A hearing on the motion was held in the Boston Municipal Court, at which the attorney who had represented the defendant at the plea tender testified, as did the defendant himself.  Their testimony differed on several critical points.  For example, the attorney testified that she advised the defendant that there might be immigration consequences if he was convicted and that he should consult an immigration attorney as to what those consequences could be.  The defendant testified that no such advice was given.  The attorney further testified that an interpreter was not necessary in her conversations with the defendant, and that the defendant told her that he consented to the police search of his coat at Logan Airport (in which the heroin was found), and thus a motion to suppress was not viable.  The defendant, however, testified that he used someone to interpret for him arranged by his mother on the day of his guilty plea, that he did not tell his attorney that he consented to the search, and that he had just picked up the coat from the floor after it had been dropped by some unknown third party.

Having observed this testimony, the motion judge was in a position to make the credibility assessments necessary to a determination whether counsel’s advice was deficient and, if so, whether the defendant had met his burden to prove that there was “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”  Clarke, 460 Mass. at 47, quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985).  In other words, the defendant must offer evidence sufficient to “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.”  Clarke, supra, quoting Padilla, 559 U.S. at 372.[7]

Unfortunately, the judge made no findings after the hearing concluded, but simply denied the motion.  This may have been the product of the Commonwealth’s understandable argument that the holding in Sylvain was retroactive only to convictions accruing after April 1, 1997, a ruling we have now clarified.

Consequently, we cannot be certain on what ground or grounds the judge may have based his denial.  The denial is therefore vacated and the matter remanded for further proceedings consistent with this opinion.[8]

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

13-P-1804                                  Appeals Court

COMMONWEALTH  vs.  GERALD SYLVIA.

No. 13-P-1804.

Middlesex.     October 7, 2015. – April 6, 2016.

Present:  Katzmann, Rubin, & Wolohojian, JJ.

Practice, Criminal, Plea, Sentence, Indictment.  Armed Assault in a Dwelling.

Indictments found and returned in the Superior Court Department on December 5, 2006.

A motion for release from unlawful confinement was considered by Edward P. Leibensperger, J., and a motion to revise and revoke sentence was considered by Diane M. Kottmyer, J.

Michael A. Cioffi for the defendant.

Crystal Lee Lyons, Assistant District Attorney, for the Commonwealth.

     WOLOHOJIAN, J.  The defendant pleaded guilty in 2007 to charges stemming from an incident in which he stole twenty pounds of marijuana at gunpoint.  The plea was tendered without an agreed sentencing recommendation.  In this consolidated appeal from the order denying his motions to be released from unlawful restraint and to revise and revoke his sentence, the defendant contends:  (1) his plea was not knowing and voluntary because, in violation of Mass.R.Crim.P. 12(c)(2)(A), as appearing in 442 Mass. 1513 (2004),[1] he was not informed he could withdraw his plea if the sentence exceeded the Commonwealth’s sentencing recommendation, (2) his plea was not knowing and voluntary because he had a “plea agreement” with the previous judge sitting in the session and that agreement was “breached,” (3) his plea was not intelligently made because there was insufficient evidence before the grand jury to support the charge of armed assault in a dwelling, and (4) being an armed career criminal is not a freestanding crime and; therefore, it was error to impose a separate sentence for it.  We agree with the defendant that there is no freestanding crime of being an armed career criminal and, therefore, a separate sentence should not have been imposed.  We accordingly remand the matter to the Superior Court to implement the procedure followed in Commonwealth v. Miranda, 441 Mass. 783 (2004), and for resentencing on the firearm charge.  We otherwise affirm.

Background.  The evidence before the grand jury showed the following.  Anthony Theriault agreed to sell twenty pounds of marijuana to Jemail Morris.  When Theriault arrived at the designated meeting spot, Morris was not alone.  Instead, Morris was accompanied by the defendant, whom Morris introduced as supplying the purchase money.  After overcoming his initial surprise and hesitation, Theriault agreed to proceed with the transaction.  All three men got into a car driven by the defendant and went to Theriault’s apartment.

Once there, Theriault placed two large green garbage bags of marijuana on the kitchen table for Morris’s inspection.  Meanwhile, the defendant drew a gun and, looking Theriault in the eye, stated, “You know what this is.  Let’s just get this over with.  Get down on the floor.”  Morris put on blue rubber gloves.  Fearing for his life, Theriault begged the men to take the marijuana without harming him.  In the subsequent scuffle, Theriault was able to escape and call 911, providing a detailed physical description of the two men, and a description of their car and its license plate number.

Police located the car almost immediately and gave chase.  The defendant was driving.  When the car reached an impasse, the defendant and Morris fled on foot.  The defendant removed a pair of blue rubber gloves and pulled a firearm from his waist as he got out of the car.  A Jennings .380 caliber semiautomatic pistol was later found in the driver’s area of the car.  Two large green garbage bags containing twenty pounds of marijuana were on the back seat.  A backpack the defendant tossed as he ran contained duct tape, blue rubber gloves, and garbage bags.  When searched at the station, six .38 special caliber bullets were found on the defendant’s person.  Theriault identified the defendant and Morris as the perpetrators from a photographic array.

On these facts, a grand jury returned five indictments charging the defendant with armed robbery, G. L. c. 265, § 17, armed assault in a dwelling, G. L. c. 265, § 18A, possession of a firearm, G. L. c. 269, § 10(a), possession of marijuana with the intent to distribute, G. L. c. 94C, § 32C(a), and being an armed career criminal, G. L. c. 269, § 10G(a).  The latter was the subject of a separate indictment.

From the docket sheet, it appears the case was actively litigated thereafter.  More specifically, the Commonwealth provided discovery and the defendant filed various discovery motions and a motion to suppress.  At some point on or before November 29, 2007, the defendant and Morris advised the judge that they intended to change their pleas.  On that date, the defendant filed a sentencing memorandum.  Also on that date, the judge (who was then sitting in the session to which the case was assigned) held a status conference “to determine whether one or both of the defendants wish to change their pleas.”  Although both the defendant and Morris stated that were prepared to plead guilty, Morris requested a delay in sentencing based on family circumstances.  In addition, the Commonwealth, having learned only that day about the defendants’ change in position, requested a delay in order to obtain a witness impact statement.  The defendant’s attorney suggested that the defendant and Morris be kept on the same schedule.  The judge allowed a continuance for both defendants to December 18, 2007, noting that if the pleas were not changed on that date the case would proceed to trial.

The following exchange then occurred:

The court:  “All right, I just want to be sure I keep a record of what I said I would do and my memory is what I indicated I would treat this not as a home invasion but as an armed robbery and then I looked at the guidelines and I think I indicated that I would go maybe one year under the guidelines that’s my memory and I have my notes here somewhere.”

The prosecutor:  “I wrote down with regards to Mr. Sylvia, you said 6 to 9, Judge, and with regards to Mr. Morris, you said 8 to 12, and that is a departure slightly from the guidelines based on the reasons you just stated.”

The court:  “All right.  Thank you for the sentencing memorandum.”

That judge did not retain jurisdiction.  Thus, although the change of plea occurred as anticipated on December 18, 2007, it occurred before a different judge (second judge), who was not informed by anyone of the previous judge’s sentencing views.  The second judge appears only to have been told that there was no agreement regarding the plea.

We need not recite in their entirety the details of the second judge’s comprehensive plea colloquy; we state only those aspects that bear on this appeal.  After noting that there was no agreement regarding the plea, the following exchange occurred.

The court:  “I will impose today, on the assumption that I accept the pleas, a conditional sentence.  The conditional sentence means that this is not the final sentence.  The final sentence will be determined after a sentencing hearing, at which, having received a sentencing memorandum from the Commonwealth, and such sentencing materials, including memoranda and/or letters of support, things of that kind, from the defendants, and a pre-sentence report for each defendant from the Probation Department, I will then proceed to a hearing.  And at the hearing, I will also hear argument from Mr. Donnelly for the Commonwealth, and from Mr. Elikann on behalf of Mr. Sylvia, and Mr. Napolitano on behalf of Mr. Morris.  Each of the defendants may, if he wishes — he’s not obliged to but if he wishes — the defendant may address the Court as well.”

“Now, at no time will either the Government through Mr. Donnelly, either in writing or verbally; or the Probation Department in the pre-sentence report or any other way, tell me what the Government’s recommendation is.  The sentence that the Government would have recommended is, has been — and I want confirmation of this — written on a piece of paper, signed by Mr. Donnelly and by counsel, and placed in the envelope which has been sealed and marked as Exhibit A . . . .^[[2]]”

. . . .

The court:  “Now, after having heard the argument and considered the written materials, I will then announce what I believe to be an appropriate sentence.  If that sentence requires no greater time committed than the  sentence that Mr. Donnelly would have recommended — that is to say the sentence that’s written on the piece of paper in Exhibit A — then that will be the sentence.  If the sentence I propose exceeds Mr. Donnelly’s recommendation, then I will either agree to reduce the sentence to the amount that Mr. Donnelly would have recommended; or I will say to the defendants, ‘I’m sorry, but I am not going to reduce my sentence.’  At that point, each defendant has an option:  He may accept the sentence as I propose to impose it; or he may say, ‘Well, under those circumstances, I want to withdraw my plea and go to trial.’  And the plea will be withdrawn and we will set up a trial.”

“To put it in a brief way, what this procedure does is to assure the defendant that the defendant will be sentenced to no greater a sentence than what Mr. Donnelly would recommend, and it may be that his sentence would be less.”

“Does everybody understand the procedure?  Would you, Mr. Elikann and you, Mr. Napolitano, consult your clients right now to make sure that they understand.”

“(Counsel and the clients confer.)”

Mr. Elikann:  “Your Honor, we’ve completed discussing this with our clients.”

The court:  “Mr. Elikann, your client understands?”

Mr. Elikann:  “Yes, Gerald Sylvia understands.”

Later during the colloquy, the second judge inquired whether “any court employee, anybody in the courtroom, courthouse, or me even, promised you or told you that I will for sure impose a particular sentence,” to which the defendant responded, “No.”

After completing the colloquy, and accepting the defendant’s change of plea to each indictment, the second judge sentenced the defendant (on the armed robbery indictment) to a conditional sentence of five years to five years and a day and stated, “[T]his is a conditional sentence.  I may go up, I may go down.  It’s just a number at this time.”

The second judge conducted the sentencing hearing approximately two months later.  At its conclusion, the second judge imposed a sentence which, for ease of reference, we place in the margin alongside the sealed recommendation made by the Commonwealth.[3]  During the sentencing hearing, the second judge did not repeat that the defendant could withdraw his plea should the sentence exceed the Commonwealth’s recommendation.

Discussion.  We begin by noting that the defendant, who until oral argument was proceeding pro se, has raised some issues on appeal that were not raised below and did not use the appropriate procedural mechanism for some of the issues he raised below.  That said, because the issues have been fully briefed and they raise purely questions of law given that the facts are undisputed, and in the interests of efficiency,[4] we exercise our discretion to reach the merits.

1.  Knowing and Voluntary Nature of Plea.  The defendant contends that his plea was not knowing and voluntary in three respects.  His first claim is that he was not adequately informed that he could withdraw his plea should the sentence exceed the Commonwealth’s recommendation.  Second, he argues that he tendered his plea based on a sentencing “agreement” with the first judge that was “breached.”  Third, he argues that there was insufficient evidence presented to the grand jury to permit them to find probable cause that he had committed an armed assault in a dwelling.  Each of these arguments fails.

Rule 12 of the Massachusetts Rules of Criminal Procedure sets out the procedures governing the tender and withdrawal of pleas.[5]  “If there were sentence recommendations contingent upon the tender of [a] plea,” rule 12(c)(2)(A), as in effect at the time, required that the judge “inform the defendant that the court will not impose a sentence that exceeds the terms of the recommendation without first giving the defendant the right to withdraw the plea.”  See Commonwealth v. Goodwin, 458 Mass. 11, 20 (2010) (Rule 12[c][2] applies where “a guilty plea is tendered in return for, and contingent on, a sentence recommendation”); Commonwealth v. Johnson, 11 Mass. App. Ct. 835, 842 (1981) (Rule 12[c][2] applies only where plea is contingent upon sentencing agreement); Commonwealth v. Katsirubis, 45 Mass. App. Ct. 132, 138 (1998) (where record does not disclose existence of a plea agreement, defendant cannot maintain argument that judge failed to advise him of right to withdraw plea).  Here, the defendant’s guilty plea was not contingent upon a plea agreement with the prosecutor and, therefore, he was not entitled to the benefit of rule 12(c)(2)(A).

Strictly viewed, the second judge departed from the requirements of the rule by extending a benefit to the defendant to which he was not entitled.  But deviations from the rule do not automatically entitle a defendant to withdraw his plea.  “The real issue in cases like the present one is whether a waiver was knowingly and voluntarily made.  Thus, while compliance with the procedures set out in rule 12(c) is mandatory, adherence to or departure from them is but one factor to be considered in resolving the issue.”  Commonwealth v. Johnson, supra at 841 (citations and quotation marks omitted).  See Commonwealth v. Barry, 19 Mass. App. Ct. 995, 996 (1985); Commonwealth v. Clerico, 35 Mass. App. Ct. 407, 413 (1993).  Here, unlike in other cases, the second judge’s departure from rule 12 resulted in the defendant receiving more procedural protection during the plea colloquy than he was entitled to under the rule.  The extra procedural protection does not cast in doubt the voluntary or knowing nature of the plea.

What remains to consider, therefore, is whether — having given the defendant a benefit to which he was not entitled during the plea colloquy (i.e., the ability to withdraw his plea even though it was not contingent upon a sentencing recommendation) — the second judge was required to repeat it during the sentencing hearing.  The defendant points to two facts that support his argument in this regard.  First, a significant amount of time passed between the plea colloquy and the sentencing hearing such that repetition was in order.  Second, the defendant could not have withdrawn his plea until he knew both the second judge’s sentence and the Commonwealth’s recommendation.  Thus, he argues, the rule 12(c)(2)(A) right was meaningless when given and absent when the time was ripe.

Even accepting the defendant’s argument, however, he does not argue that the second judge’s sentence exceeded that recommended by the prosecutor, because the prosecutor sought a ten to fifteen year sentence, while the defendant received a sentence of ten years to ten years and one day.[6]  In light of the defendant’s failure to argue any harm, we cannot conclude that the motion judge abused his discretion in denying the defendant’s motion to be released from unlawful restraint.  See Commonwealth v. Sherman, 451 Mass. 332, 342 (2008) (defendant not entitled to withdraw plea where deviation from rule 12 did no harm to him).

The record does not support the defendant’s argument that he had an “agreement” with the first judge that was “breached.”  “[P]lea bargaining is often analogized to a contractual negotiation.  However, no contract could have been made in the instant circumstances because . . . the judge did not participate in the plea bargaining process.”  Commonwealth v. Kelleher, 28 Mass. App. Ct. 915, 916 (1989) (citation and quotation marks omitted).  Although the first judge expressed her view, during a pretrial conference, of the sentencing range she would consider if the defendant changed his plea, that statement was informational in nature and did not amount to a binding agreement.  To begin with, it is doubtful “that a judge, as opposed to a prosecutor, could ever be held to a contract to accept a particular plea offer.  A judge would have discretion to change his or her mind until the plea was accepted.”  Id. at 916-917 n.5.  See Commonwealth v. Rodriguez, 461 Mass. 256, 261-262 (2012).  In addition, even if we were to view the first judge’s comment as a form of contractual offer, the defendant did not accept it by changing his plea.

Finally, there was no error in denying the defendant’s motion to be released from unlawful restraint based on his claim that the evidence before the grand jury was insufficient to permit the grand jury to determine that his entry into the victim’s apartment was unlawful.  “By pleading guilty the defendant admitted all facts well charged in the indictments against him,” Commonwealth v. Zion, 359 Mass. 559, 563 (1971), and “waive[d] all nonjurisdictional defects.”  Commonwealth v. Cabrera, 449 Mass. 825, 830 (2007).  Even were this not the case, the evidence before the grand jury was sufficient to permit the inference that, although the victim may have consented to the defendant’s entry, that consent was “legally [in]significant [because] the occupant [was not] made aware [that] the person at the door [was] armed with a dangerous weapon and [was] about to commit an assault once inside.”  Commonwealth v. Maher, 430 Mass. 643, 652-653 (2000).[7]

2.  Armed Career Criminal.  The defendant was charged with possession of a firearm, G. L. c. 269, § 10(a), and in a separate indictment, with being an armed career criminal, G. L. c. 269, § 10G(a).  The second judge sentenced the defendant to two and one-half to three years on the firearm charge, and to ten years to ten years and one day on the armed career criminal charge, both to run concurrently with the sentence imposed for the armed assault in a dwelling.  The defendant argues that, because there is no freestanding crime of being an armed career criminal, he should not have been sentenced separately for it.

The armed career criminal statute “does not define a stand-alone, separate offense.  Rather, the repeat offender statute establishes sentencing enhancements for offenders who, ‘having been previously convicted of two violent crimes, or two serious drug offenses or one violent crime and one serious drug offense,’ commit certain firearms offenses, including those prohibited by [G. L. c. 269,] § 10(a) and (h).  See Commonwealth v. Fernandes, 430 Mass. 517, 520–521 (1999), cert. denied sub nom. Martinez v. Massachusetts, 530 U.S. 1281 (2000) (repeat offender sentencing enhancement does not constitute ‘freestanding crime’; ‘the counts for the current offense and for the repeat offense are viewed as parts of one indictment and charge only one crime with a sentencing enhancement provision’).”  Alicea v. Commonwealth, 466 Mass. 228, 230-231 n.6 (2013).  It follows that the defendant should have received only a single sentence on the underlying firearm offense, enhanced as provided by the career criminal statute.  See Bynum v. Commonwealth, 429 Mass. 705, 708-709 (1999).  Separate sentences should not have been imposed.

Because the defendant pleaded guilty to the armed career enhancement, which included admitting the facts necessary to satisfy its application, we consider the simplest way to correct the error is to remand the matter to the Superior Court to implement the procedure followed in Commonwealth v. Miranda, 441 Mass. at 787-790 (2004).  Accordingly, the orders entered on July 11, 2013, and May 22, 2014, with respect to the indictments charging the defendant with armed robbery, armed assault in a dwelling with the use of a firearm, and possession of marijuana with the intent to distribute, are affirmed, and as to the remaining two indictments, the matter is remanded to Superior Court, where the possession of a firearm indictment is to be amended to include the armed career criminal indictment, the latter indictment is to be dismissed, and the defendant is to be resentenced on the former indictment as so amended.  See Commonwealth v. Owen, 61 Mass. App. Ct. 711, 715 (2004).  This is a “proper way to correct the Commonwealth’s mistake to avoid possible problems for the defendant if it appeared that he was convicted of two separate offenses.”  Commonwealth v. Miranda, 441 Mass. at 789-790.

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-11998

COMMONWEALTH  vs.  MICHAEL S. BOYD.

Middlesex.     January 11, 2016. – April 8, 2016.

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

Firearms.  Practice, Criminal, Sentence, Nolle prosequi.

Indictments found and returned in the Superior Court Department on October 28, 2008.

The cases were tried before Sandra L. Hamlin, J., and a motion to correct sentence, filed on May 4, 2014, was heard by her.

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

James M. Fox for the defendant.

KerryAnne Kilcoyne, Assistant District Attorney, for the Commonwealth.

Chauncey B. Wood & Timothy St. Lawrence, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

CORDY, J.  The defendant, Michael Boyd, was convicted on counts of an indictment charging two sentencing enhancements, one as a second-time offender, see G. L. c. 269, § 10 (d), and one under the Massachusetts armed career criminal (ACC) statute,[1] see G. L. c. 269, § 10G (c), both premised on an underlying conviction of unlawful possession of a sawed-off shotgun, in violation of G. L. c. 269, § 10 (c).  The Commonwealth moved for sentencing consistent with the fifteen- to twenty-year term of imprisonment required by the ACC statute, while the defendant recommended a lesser punishment, also within the range afforded by the ACC statute.[2]  See G. L. c. 269, § 10G (c).  The defendant was sentenced to a term of from fifteen to seventeen years in State prison on the ACC enhancement and was not sentenced on the second offender enhancement.

The defendant appealed from the ACC conviction, arguing that the Commonwealth’s evidence was insufficient to support a sentence enhancement under that provision.  In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court agreed, reversing the conviction and remanding the case for resentencing.  See Commonwealth v. Boyd, 85 Mass. App. Ct. 1106 (2014).  The Appeals Court’s decision ostensibly left the defendant with convictions of unlawful possession of a sawed-off shotgun, which carries a sentencing range of from eighteen months to life, see G. L. c. 269, § 10 (a), (c); and the second offender enhancement conviction for the same offense, which carries a mandatory term of imprisonment in State prison of between five and seven years, see G. L. c. 269, § 10 (d).

On remand, the case presented a unique circumstance:  a statute that affords greater potential punishment for an underlying crime than for a subsequent offense.  Consequently, at the resentencing hearing, the defendant argued that he should be sentenced under the enhancement statute, while the Commonwealth sought the imposition of a longer sentence on the underlying crime.  The Commonwealth, over defense objection, entered a nolle prosequi of the second offender enhancement charge,[3] and the judge sentenced the defendant to a term of from twelve to fifteen years on the underlying conviction of unlawful possession of a sawed-off shotgun.

In his present appeal, the defendant argues that it was error for the resentencing judge to allow the Commonwealth to avail itself of the nolle prosequi procedure after the initial sentencing had already occurred, particularly where such a decision exposed him to a greater potential punishment.

In Commonwealth v. Richardson, 469 Mass. 248, 249 (2014), decided one month after the resentencing in the present case, we established that, absent legislative intent to the contrary, “a defendant may be sentenced under only one sentencing enhancement statute,” even if he or she was convicted pursuant to multiple such provisions.  The Commonwealth, however, is free to charge a defendant under multiple sentencing enhancement statutes, and if it secures multiple convictions, it may, prior to sentencing, “exercise its prosecutorial prerogative to decide which enhancement provision will apply . . . by entering a nolle prosequi of all but one sentencing enhancement count.”  Id. at 254.  Because in Richardson the Commonwealth had not exercised its nolle prosequi authority prior to sentencing, and because the judge sentenced the defendant under two sentencing enhancement provisions, we remanded the case for resentencing, concluding that, “[w]here . . . the Commonwealth did not exercise its authority to enter a nolle prosequi of one of the enhancement counts before sentencing, the decision regarding which sentence will survive on remand rests with the sentencing judge.”  Id. at 249, 251-252, 254-255.

Consistent with our holding in Richardson, we conclude that the judge’s original sentencing on one of two possible enhancement convictions (ACC enhancement) effectively acted as a dismissal of the other (second offender enhancement).  Thus, the Commonwealth’s attempt to enter a nolle prosequi with respect to the second offender enhancement conviction, after the remand, is moot as duplicative.  The underlying conviction of possession of a sawed-off shotgun, however, remained viable, and where the judge on resentencing sentenced the defendant on that conviction, we affirm the sentence as imposed.[4]^,[5]

1.  Background.  a.  Underlying crimes.  The circumstances underlying the defendant’s conviction are not in dispute, and they also are not at issue in his appeal.  To give context, we present a brief recitation of the facts precipitating the defendant’s arrest and his subsequent convictions.

On September 24, 2008, the Framingham police responded to a report of a domestic dispute involving the defendant and his pregnant girl friend.  The officers discovered that the defendant had taken custody of the couple’s two children, so they proceeded to the defendant’s apartment to remove the children and to arrest the defendant.  The defendant refused to come outside, and the officers heard children screaming.  When the police sought to enter the home by force, the defendant fired a shotgun through the window.  The police returned fire, wounding the defendant.  They subsequently arrested him.

b.  Procedural history.  The defendant was named in indictments setting forth a total of ten different offenses.  In addition to the conviction of unlawful possession of a sawed-off shotgun, in violation of G. L. c. 269, § 10 (c), the jury returned guilty verdicts on indictments charging unlawful possession of ammunition without a firearm identification card, in violation of G. L. c. 269, § 10 (h); two counts of reckless endangerment of a child, in violation of G. L. c. 265, § 13L; unlawful possession of a loaded sawed-off shotgun, in violation of G. L. c. 269, § 10 (n); and unlawful discharge of a firearm, in violation of G. L. c. 269, § 12E.[6]

After evidence was presented at a separate jury-waived portion of the bifurcated trial that established the defendant’s prior criminal history, the defendant was convicted of two separate sentencing enhancements (as a subsequent offender and as an armed career criminal) for both the shotgun possession conviction and the ammunition possession conviction.  The defendant was sentenced to concurrent terms of from fifteen to seventeen years on those convictions, consistent with the provisions of the ACC statute, and to a subsequent ten years of probation for each of the remaining charges, to run concurrently with each other and from and after the prison sentence.  No sentence was imposed on the second offender enhancement convictions.

At the resentencing hearing on July 10, 2014, after the defendant had successfully challenged his armed career criminal status, see Boyd, 85 Mass. App. Ct. at 1106, the parties mutually agreed to dismiss the possession of ammunition charge as duplicative.  The Commonwealth also sought to enter a nolle prosequi of the subsequent offender enhancement portion of the indictment charging possession of a sawed-off shotgun.  The defendant objected, but the resentencing judge allowed the nolle prosequi and sentenced the defendant to a term of from twelve to fifteen years in State prison for the underlying crime.[7]  The defendant appealed.[8]  We transferred the case from the Appeals Court on our own motion.

The defendant argues that it was error for the resentencing judge to allow the Commonwealth to exercise its nolle prosequi authority at the resentencing hearing for two reasons, and the resentencing judge was therefore required to sentence the defendant under the subsequent offender enhancement provision on the charge of possession of a sawed-off shotgun:  first, that the nolle prosequi was time barred because sentencing had already occurred; and, second, that the Commonwealth’s nolle prosequi circumvented legislative intent in establishing the penalty structure for the underlying charge and the enhancement of which the defendant was convicted.

2.  Discussion.  Generally speaking, the Commonwealth has “absolute” authority “to enter a nolle prosequi” at any point “before sentencing,” see Mass. R. Crim. P. 16 (a), 378 Mass. 885 (1979) (“prosecuting attorney may enter a nolle prosequi on pending charges at any time prior to the pronouncement of sentence”), “either as to an entire indictment or . . . count thereof, or any distinct and substantive part of it.”  Commonwealth v. Massod, 350 Mass. 745, 748 (1966).[9]  Where the Commonwealth does not exercise its authority to enter a nolle prosequi prior to sentencing, the judge “must exercise discretion to craft the most appropriate individualized sentence within the bounds of the applicable criminal statutes” (quotations omitted).  Commonwealth v. Rivas, 466 Mass. 184, 190-191 (2013).

In the context of multiple convictions under sentencing enhancement statutes, the Commonwealth’s prosecutorial prerogative over which enhancement is available for sentencing ends when the defendant appears before the judge for sentencing.  See Richardson, 469 Mass. at 254.  At that point, in the absence of a nolle prosequi, the sentencing judge has the discretion to select one enhancement conviction before levying a punishment.  Id. at 254-255.  The judge’s decision has the effect of determining which sentence enhancement “survive[s]” for purposes of appeal and any potential remand.  See id. at 255.  The adverse effect is that the sentencing enhancement not selected by the judge is dismissed, similar to when a nolle prosequi is entered prior to sentencing.

The result in the present case is that the defendant was no longer subject to the second offender sentence enhancement after the case was remanded.  See Boyd, 85 Mass. App. Ct. 1106.[10]  That is, the judge’s initial sentencing of the defendant under the ACC statute effectively dismissed the second offender portion of the indictment.  Therefore, after the ACC charge had been reversed, the resentencing judge was left to craft a sentence based on the only remaining charge associated with G. L. c. 269, § 10:  the underlying crime.  As a result, the Commonwealth need not have — and indeed could not have — exercised its nolle prosequi authority to dismiss the second offender enhancement in order to subject the defendant to punishment under the underlying crime.[11]

This case presents the circumstance in which our holding will inure to the benefit of the Commonwealth.  Due to the peculiarity of the sawed-off shotgun possession statute, G. L. c. 269, § 10, which affords a greater potential punishment for first-time offenders than does the second offender charge for the same offense, the Commonwealth was able to secure a more severe penalty after the second offender charge had been vacated than it would have been able to had the charge remained.  In a more common scenario, the dismissal on appeal of the sentencing enhancement provision under which a defendant has been sentenced would protect the defendant from an enhanced punishment on remand, based on the same underlying offense.

The defendant argues that, even if it was appropriate to sentence him for the underlying crime, his sentence under that statute was excessive.  The defendant contends that a closer reading of the tiered penalty structure for possession of a sawed-off shotgun under G. L. c. 269, § 10 (c), reveals that the Legislature intended a first-time offender to have a sentence of less than five years.  The argument implies that, because the subsequent offender provisions for the underlying crime each subject an offender to a progressively serious potential penalty, based on the number of offenses, the Legislature must have intended a first-time offender to be subject to less punishment than any subsequent offender.

We conclude that the defendant’s statutory interpretation argument is inapt; the statute is not ambiguous, nor was the judge’s interpretation of that statute in handing down a sentence in excess of seven years inappropriate.  While the statute is no doubt unusual, there can be no misconstruing the language of the Legislature:  first-time offenders in the possession of sawed-off shotguns are subject to “imprisonment in the state prison for life, or any term of years,” with a minimum sentence of eighteen months.  G. L. c. 269, § 10 (c).  The weapons listed in § 10 (c) (machine gun and sawed-off shotgun) are the only “dangerous weapons” listed in § 10, the possession of which subjects the possessor to a term of up to life imprisonment.  The following section, § 10 (d), is an omnibus clause of the statute, allowing for subsequent offender sentence enhancements for violations not only of § 10 (c) but also of § 10 (a) (possession of other types of firearms) and § 10 (b) (encompassing a wide variety of handheld, nonfirearm weapons, including knives, chains, and nunchaku).  A single violation of neither § 10 (a) nor § 10 (b) subjects an offender to life imprisonment.  This clear differentiation by the Legislature indicates that offenses under § 10 (c) are more grievous than those under § 10 (a) or (b).  The inconsistent penalty system by which second offenders may (at least with respect to offenses under § 10 [c]) receive a lesser punishment than first-time offenders may seem illogical, but it is not ambiguous.  We therefore conclude, contrary to the defendant’s recitation of the rule of lenity, that there is nothing ambiguous about the statute in question.

3.  Conclusion.  The Commonwealth was unable to exercise its nolle prosequi authority as to the second offender enhancement because that conviction was no longer available.  Given that the judge had initially sentenced the defendant under the ACC enhancement provision, the second offender enhancement was effectively dismissed.  Our conclusion that the defendant was no longer subject to the second offender enhancement conviction, however, leaves the resentencing judge in the same position in which she had been on the initial remand:  able to craft a sentence, pursuant to G. L. c. 269, § 10 (c), based on the underlying crime, with a potential term of from eighteen months to life.  We therefore affirm as imposed the defendant’s sentence of from twelve to fifteen years in State prison.

So ordered.

Full-text Opinions

Appendix.

          Pertinent sections of the Wareham zoning by-law are set forth below.

“1322     Restoration of Damaged or Destroyed Structures

A nonconforming building or structure which has been damaged or destroyed may be repaired or rebuilt provided that such restoration shall not exceed the original area and height and shall be placed no nearer the street line than the building or structure which the restoration replaces and that there is no material change in exterior appearance except according to the terms of a Special Permit issued by the Board of Appeals.

“. . .

“1334     Alteration, Reconstruction, Extension or Structural Changes to Pre-existing Nonconforming Single and Two-Family Residential Structures.

“1335     Procedures

As provided for in M.G.L. c. 40A sec. 6, a nonconforming single or two-family dwelling or structure accessory thereto may be altered, reconstructed, extended or otherwise structurally changed provided that:  (1) the proposed alteration, extension or structural change itself conforms to the requirements of the present By-Law and does not intensify any existing non-conformities or result in any additional non-conformities in which event the Building Inspector may issue a building permit and an application to the Board of Appeals need not be made; or (2) as provided below the Board of Appeals finds that (i) there is no substantial increase in the nonconforming nature of said structure; and (ii) such reconstruction, alteration or extension will not be substantially more detrimental to the neighborhood than the existing nonconforming structure or use.

“. . .

“1341     Period of Abandonment or Discontinuation

All . . . nonconforming uses [other than agricultural, horticultural and floricultural uses], which have been abandoned or discontinued for more than two years, shall not be re-established. . . . [A]ny future use shall be in conformity with the provisions of this By-Law.”

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-1707                                       Appeals Court

JOHN DUFFY, D.C.  vs.  AMICA MUTUAL INSURANCE CO.

No. 14-P-1707.

Middlesex.     January 11, 2016. – April 8, 2016.

Present:  Katzmann, Milkey, & Hanlon, JJ.

Insurance, Motor vehicle personal injury protection benefits, Coordination-of-benefits clause, Unfair act or practice.  Contract, Insurance, Coordination of benefits clause.  Consumer Protection Act, Insurance.

Civil action commenced in the Lowell Division of the District Court Department on May 14, 2010.

The case was heard by J. Elizabeth Cremens, J., on motions for summary judgment.

Francis A. Gaimari for the plaintiff.

Charles G. Devine, Jr. for the defendant.

     KATZMANN, J.  This appeal presents the principal question whether summary judgment was appropriately allowed against a health care provider which, though having failed to coordinate benefits between the insured’s auto insurer and the insured’s health insurer, claimed entitlement to unpaid Personal Injury Protection (PIP) benefits under the compulsory motor vehicle liability insurance scheme contained in G. L. c. 90, §§ 34A-34Q.[1] The plaintiff, John Duffy, D.C., a corporation providing chiropractic services (we refer to the corporation and the individual as Duffy),[2] appeals from a decision and order of the Appellate Division of the District Court affirming a summary judgment granted by a District Court judge to the defendant, auto insurer Amica Mutual Insurance Company (Amica), on Duffy’s action for recovery of $ 394.44 in PIP benefits.  Duffy had treated Amica’s insured, Sandra Cormier, and he alleges that the PIP benefits were due him as an unpaid party pursuant to G. L. c. 90, § 34M.[3]  He also claims that he was entitled to recover damages and attorney’s fees and costs pursuant to G. L. c. 90, § 34M, and G. L. c. 93A, § 11.[4]  We affirm.

Discussion.  “We review the disposition of a motion for summary judgment de novo . . . to determine whether all material facts have been established such that the moving party is entitled to judgment as a matter of law[;] . . . [w]e construe all facts in favor of the nonmoving party, . . . and we may consider any grounds that support the motion judge’s ruling.”  American Intl. Ins. Co. v. Robert Seuffer GmbH & Co. KG., 468 Mass. 109, 113, cert. denied, 135 S. Ct. 871 (2014) (quotations and citations omitted).

The essence of the parties’ dispute is the question whether Amica’s obligation to pay unpaid portions of Duffy’s bills was ever triggered.  Amica initially denied all payments to Duffy in September and October, 2005, on the basis of an independent medical examination (IME)[5] conducted by an orthopedic surgeon, which indicated that Cormier would not need further professional medical care beyond a date roughly one month before she began treatment with Duffy.  Although the initial $ 2,000 in PIP benefits available under the insurance contract[6] had also already been exhausted at this point, Amica did not directly so inform Duffy.  However, Amica had previously advised Cormier and her counsel of this development on July 22, 2005, one month before Cormier began treatment with Duffy.

1.  Coordination of benefits.  Quite apart from its reliance on the IME as a basis for denying payment to Duffy,  Amica contends that its duty to pay Duffy was never triggered in any event because Duffy failed to coordinate benefits between Amica and Cormier’s health insurer.  See note 1, supra; Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112, 115 (1999) (“[G. L. c. 90, §] 34A, by it terms, expresses a legislative recognition that available health insurance reduces the cost of motor vehicle insurance by eliminating the need for additional PIP coverage, and codifies a legislative mandate that claimants utilize existing health insurance for medical expenses which exceed the $ 2,000 limit on an automobile insurer’s PIP liability”); Mejia v. American Cas. Co., 55 Mass. App. Ct. 461, 462 n.2, 466 (2002).  Duffy counters that Amica did not advise him directly in 2005 that the initial $ 2,000 in PIP benefits had been exhausted and so Amica is estopped from relying on any alleged failure to coordinate benefits.  Duffy’s arguments are unavailing.

The summary judgment record unequivocally demonstrates Duffy’s actual notice by July, 2006, at the latest, that Cormier’s initial $ 2,000 in PIP benefits had been exhausted.[7]  He therefore knew long before filing suit in May, 2010, that, even if Amica’s reliance on the IME to deny coverage could be shown to be invalid, he would nonetheless still first have to submit his bills to the health insurer and then resubmit any unpaid balances to Amica before the latter would have any obligation to pay notwithstanding the IME.  In fact, Duffy did ultimately receive $ 892.91 in partial payment of his bills from Cormier’s health insurer in August, 2006.  In August, 2007, Duffy received an additional $ 1109.90 in partial payment from proceeds of Cormier’s settlement with a third party.[8]  Duffy never resubmitted to Amica a request for the $ 394.44 that remained outstanding, nor did he provide Amica with documentation of the health insurer’s payments or his receipt of settlement proceeds.

Contrary to Duffy’s estoppel theory, Amica’s initial reliance on an IME cutoff to refuse payment to Duffy does not preclude Amica’s assertion of a defense of failure to coordinate benefits.  “[T]he mere statement of one ground for denying liability without explanatory words or circumstances does not warrant the inference of an intention to relinquish other defences.”  Royal-Globe Ins. Co. v. Craven, 411 Mass. 629, 635 (1992) (Royal-Globe), quoting from Sheehan v. Commercial Travelers’ Mut. Acc. Assn., 283 Mass. 543, 552 (1933).  Duffy was on actual notice of the coordination of benefits requirement no later than July, 2006 — a point in time still well within the two years allowed for the presentation of PIP claims under the statute[9] — and yet he still failed to coordinate benefits.  He then waited nearly an additional four years to bring this action.  It is therefore difficult to see how Duffy can claim that Amica’s conduct induced him “to do something different from what otherwise would have been done and which has resulted to his harm.”  Royal-Globe, 411 Mass. at 635 (citation omitted).  Duffy’s estoppel argument therefore fails.[10]  Ibid.

Duffy’s claim that it would have been futile to send documentation concerning health insurance payments and coordination of benefits to Amica ignores the fact that without that informationAmica would have had no way of knowing in 2006 (i) that Duffy was still claiming PIP benefits from the previous year at all, or (ii) whether it had any obligation to pay any unpaid balance left by the health insurer.  Duffy cannot maintain that he could rely on bills he previously submitted to Amica for payment in full as, without any documentation on the partial payments he received subsequently, Amica could have made substantial overpayments to him if it had conceded coverage.  See, e.g., Shah v. Liberty Mut. Ins. Co., 56 Mass. App. Ct. 903, 903 (2002) (after the first $ 2,000 in PIP benefits had been paid, provider was not entitled to “balance bill” PIP insurer to cover the difference between her usual charge for services and amount received from insured’s health insurer pursuant to a participating provider contract).  Amica would have also needed documentation concerning the third-party settlement payment Duffy received where Amica’s contract with Cormier specified that it “will not pay PIP benefits to or for an injured person, to the extent those benefits would duplicate expenses or losses recovered by that person in a court judgment or settlement.”[11]  In fact, Amica did not learn of any of the partial payments Duffy received until the discovery process in the instant litigation.

The undisputed facts on the summary judgment record therefore demonstrate that Duffy failed to comply with his obligation to coordinate benefits and, consequently, Amica’s obligation to pay never actually arose.  While this conclusion should be sufficient to resolve the present appeal, where Duffy contends that Amica’s denial letters themselves violated the statute, we consider whether any initial violation by Amica effectively suspended Duffy’s obligation to coordinate benefits.

2.  IME cutoff denials.  Duffy insists that even if he had a coordination of benefits obligation, Amica violated the statute and breached the insurance contract before that obligation arose by not including the exhaustion of the initial $ 2,000 as one of its reasons for nonpayment within ten days of his claim and instead relying exclusively on the IME cutoff.  However, where it is undisputed that Amica provided Duffy with “written notice of its intent not to make [medical] payments” and “specif[ied] reasons for said nonpayment,” G. L. c. 90, § 34M, fourth par., we do not agree that Amica violated the statute.  We decline Duffy’s invitation to read into the statute a requirement that the insurer specify all reasons it may have for nonpayment in the written notice where the reason(s) given were never contested prior to litigation.  See Boone v. Commerce Ins. Co., 451 Mass. 192, 199 (2008), quoting from Dartt v. Browning–Ferris Indus., Inc. (Mass.), 427 Mass. 1, 9 (1998) (“[W]e will not add to a statute a word that the Legislature had the option to, but chose not to, include”).

Duffy points out that the form denial letters he received from Amica contain a line that the claims handler could have simply checked to indicate to him that the $ 2,000 PIP threshold had been reached.  However, a denial based on the initial PIP threshold is only a conditional denial.  That is, if the only reason for nonpayment is that the first $ 2,000 in benefits has been exhausted, an insurer might yet have a continuing coverage obligation to the claiming provider. (See, e.g., notes 1 and 6, supra.)  Not so when an insurer denies coverage on the basis of an IME that indicates that the claiming provider’s treatment was not medically necessary.  The IME cutoff, unless refuted, would be an absolute denial of coverage for Duffy’s treatment.  Therefore, Duffy was well advised that before any of his bills could be considered for payment, he would need to refute the opinion in the IME report.  See, e.g., Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800, 802 (2014) (provider submitted expert response to IME, expressing different opinion as to when insured had reached medical end result).  This he did not do.  Here, Amica had already provided Cormier’s counsel with the IME before Duffy ever began treating Cormier.  The summary judgment record shows that Duffy had contact information for Cormier’s counsel and was invited to contact Amica in each of the four denial letters he received.  There is no evidence in the record that Duffy ever challenged the substance of the IME cutoff to put Amica on notice that it needed to do anything further to evaluate his claims for payment.

Duffy contends that the IME report did not state a definitive conclusion that Cormier had reached a medical endpoint but only a prediction that she would reach such an endpoint in four weeks.  He argues that where the statute allows insurers to have independent physical examinations performed “as often as may be reasonably required,” G. L. c. 90, § 34M, third par., Amica’s duty of good faith required it to reexamine Cormier before denying his bills for payment.  He disputes that under the circumstances here Amica had no duty of investigation to determine the medical necessity of any post-IME medical treatment that Cormier received.  We are not persuaded by Duffy’s claims.

Imposing on auto insurers an obligation to automatically conduct an additional IME simply because a bill for subsequent treatment has been received would run contrary to one of the key legislative purposes underlying enactment of § 34M:  “to control costs of compulsory automobile insurance.”  Dominguez, 429 Mass. at 115.[12]

Furthermore, Duffy’s arguments are fatally flawed as applied to the undisputed facts of this case.  First, the IME report stated explicitly that Cormier would have a decreasing partial disability for the next four weeks.  The existence of symptoms after that point would not, on its own, have indicated to Amica that the conclusions in the IME report were incorrect,[13] as the IME explicitly anticipated that Cormier’s symptoms would remain, but determined that “the remainder of her symptoms can be handled by a home exercise program.”

While Amica could have requested that Cormier submit to a fresh independent medical examination, Duffy has not shown that Amica was required to do so here where (i) it possessed a recent IME report by a reviewing physician with at least as much training and education as Duffy, the claiming provider, see Boone, 451 Mass. at 198; (ii) the IME supported the denial of coverage; and (iii) Duffy never challenged the IME.  The simple fact that Amica received medical bills from Duffy, then a new provider on the case, would not put it on notice that the IME required updating, especially where the actual opinion in the IME report was not that the symptoms would have disappeared but only that any remaining symptoms could be managed with a home exercise program after four more weeks.  See Brito v. Liberty Mut. Ins. Co., 44 Mass. App. Ct. 34, 37 (1997) (“The insurer is not required to pay unexplained medical bills merely on the unsubstantiated assertion by the claimant that they represent reasonable and necessary treatment for injuries caused by the accident”).  The denial letters it did send at least “impliedly invited” a response from Duffy, but none was ever received.  Washington v. Metropolitan Life Ins. Co., 372 Mass. 714, 719 (1977).[14]

Although Duffy is correct that insurers must operate in good faith, he too must act in good faith.  When confronted with a denial based on an IME and with contact information for both the claims handler and the insured’s counsel, good faith required Duffy to take at least some action to ascertain and, if necessary, challenge the validity of the denial before filing suit nearly five years later.  See Dominguez, 429 Mass. at 118 (concluding that the claimant was not entitled to recover medical expenses above $ 2,000 from the PIP insurer where, inter alia, he failed “to cooperate and deal in good faith” with both the health insurer and the PIP insurer).

Where it is undisputed that Duffy did nothing to alert Amica that he objected to denial of his bills on the basis of the IME’s determination in 2005 and then failed to resubmit unpaid portions of his bills to Amica after partial payments by Cormier’s health insurer in 2006, Duffy has not shown a violation of G. L. c. 90, § 34M, and judgment in favor of Amica  on count I was appropriate as a matter of law.  Therefore, because Duffy’s G. L. c. 93A claim asserted in count II was predicated on the alleged § 34M violation, it, too, must fail.[15]  See Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 227 n.13 (2009) (c. 93A claims “based on the same theory of injury and the same set of alleged facts” as underlying claims “survive or fail under the same analysis as the underlying . . . claim”).

Decision and order of the

Appellate Division

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-11684

COMMONWEALTH  vs.  ADAM CASSINO.

Suffolk.     December 11, 2015. – April 8, 2016.

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

Homicide.  Search and Seizure, Clothing, Warrant, Probable cause.  Constitutional Law, Search and seizure, Probable cause.  Probable Cause.  Deoxyribonucleic Acid.  Mental Impairment.  Jury and Jurors.  Practice, Criminal, Capital case, Motion to suppress, Instructions to jury, Voir dire, Jury and jurors.

Indictment found and returned in the Superior Court Department on November 15, 2011.

Pretrial motions to suppress evidence were heard by Charles J. Hely, J., and the case was tried before Garry V. Inge, J.

Azi Safar for the defendant.

Zachary Hillman, Assistant District Attorney (Ian Polumbaum, Assistant District Attorney, with him) for the Commonwealth.

HINES, J.  In August, 2011, a sixty-five year old woman was found dead in her apartment in the South Boston section of Boston.  She was the victim of blunt force trauma caused by a baseball bat.  The defendant, Adam Cassino, was indicted for the crime and a jury convicted him of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.  On appeal, the defendant claims (1) error in the denial of his three motions to suppress evidence stemming from a claimed illegal search of his clothing and shoes that were stored in a secured area while he was civilly committed pursuant to G. L. c. 123, § 35; (2) error in the presentation of deoxyribonucleic acid (DNA) results; (3) error in the failure to give a diminished capacity instruction; and (4) abuse of discretion in the judge’s juror bias determination.  We affirm the order denying the defendant’s motions to suppress as well as the defendant’s convictions, and we discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E.

1.  Motion to suppress.  a. Background.  After the discovery of the victim’s body on August 27, 2011, the police investigation soon focused on the defendant, the victim’s neighbor, as a possible suspect.  The investigation led police to the Massachusetts Alcohol and Substance Abuse Center (center) where the defendant had resided since August 24, 2011, after being civilly committed for drug treatment under G. L. c. 123, § 35.  On August 29, 2011, two days after the discovery of the body, two Boston police detectives went to the center to interview the defendant.  While there, the detectives viewed the defendant’s clothing and shoes and observed reddish brown stains on the shoes.  On August 31, 2011, police applied for and obtained a warrant seeking the authority to search and seize the clothing and shoes.  The affidavit submitted in support of the warrant application referenced the reddish brown stains.  Later that same day, police seized the items from the center pursuant to the warrant.

On September 8, 2011, police submitted applications for two additional search warrants, one pertaining to the apartment where the defendant stayed on August 23, 2011, the night before he was apprehended for the G. L. c. 123, § 35, civil commitment and the other for the defendant’s primary residence.  The affidavits accompanying both applications cited the forensic evidence obtained from the defendant’s shoes, including that DNA samples from the reddish brown stains matched the known DNA profile of the victim.

The defendant filed three motions to suppress, claiming, on State and Federal constitutional grounds, that the viewing of his clothing and shoes at the center was an illegal, warrantless search and that the three subsequent search warrants for the shoes and the two residences, based on that illegal “search,” lacked probable cause.  As background for the analysis of this issue, we summarize the relevant facts from the affidavit submitted in support of the warrant application dated August 31, 2011, and from the undisputed testimony adduced at the hearing on the motion to suppress.

The last known contact with the victim occurred Monday evening, August 22, 2011, and the last outgoing call from her cellular telephone was the next afternoon.  Police estimated that the murder occurred sometime between Monday and Tuesday evenings.  During a search of the victim’s apartment, police seized an empty bottle of Clonazepam that was issued to the victim on August 11, 2011, and initially contained ninety pills.  Police believed, based on witness interviews,[1] that the victim had been having ongoing problems with the defendant and that he had stolen her prescription medication and other belongings in the past.  A neighbor reported that the defendant stole prescription medicine from her that Monday.  The defendant told police that he met with the victim that Monday evening to discuss buying pills.  He stated that he would have purchased some, but he did not have any money.

Blood on the victim’s hands and nails indicated that she struggled with, and possibly caused injury to, her attacker.  Moreover, the police asserted in the search warrant affidavit that “the damage to the victim coupled by the amount of blood throughout the scene showed an extreme force which would have made it very difficult for any person involved, or even present, to avoid a transfer of some blood evidence to either themselves or their clothing or footwear.”

The defendant’s mother told police that the defendant was taken into custody for civil commitment on a warrant of apprehension on August 24, 2011, a process she started the day before because of the defendant’s substance abuse.  The defendant arrived at the center with injuries to his hand and knee.   The inner perimeter security commander for the center testified that booking and admission procedures require that the clothing and shoes of a person committed under G. L. c. 123, § 35, be taken and stored in a secure property storage area.  Property is returned to its owner after discharge, or it is transferred to follow the owner to any future confinement.

On August 29, 2011, two Boston police detectives interviewed the defendant at the center and requested to view the defendant’s personal property.[2]  A sergeant retrieved the property from the storage facility, opened the bag containing the defendant’s clothing and shoes, and lifted the items out of the bag so that the detectives could view the items.  As noted, reddish brown stains were visible on the defendant’s shoes.

b.  Discussion.  “In reviewing a ruling on a motion to suppress, we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of [his] ultimate findings and conclusions of law.’”  Commonwealth v. Craan, 469 Mass. 24, 26 (2014), quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004).  We “make an independent determination of the correctness of the judge’s application of constitutional principles.”  Commonwealth v. Woods, 466 Mass. 707, 717, cert. denied, 134 S. Ct. 2855 (2014), quoting Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

The judge denied the defendant’s motions, concluding that the defendant had no reasonable expectation of privacy in the clothing and shoes when the officers first observed them at the center and that all three warrants were supported by probable cause.  On appeal, the defendant reprises his argument that the viewing of his personal items was a warrantless search that unlawfully infringed on his reasonable expectation of privacy and tainted the three warrant applications.

“Warrantless searches are presumptively unreasonable, under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, subject only to ‘a few specifically established and well-delineated exceptions.’”  Commonwealth v. Gouse, 461 Mass. 787, 792 (2012), quoting Commonwealth v. Bostock, 450 Mass. 616, 624 (2008).

The defendant bears the “burden of showing that a warrantless search or seizure occurred.”  Commonwealth v. Bly, 448 Mass. 473, 490 (2007), citing Commonwealth v. D’Onofrio, 396 Mass. 711, 714-715 (1986).  “This question is analyzed under the familiar two-part query whether [the defendant] had a subjective expectation of privacy in the items seized, and if so, whether that expectation was reasonable objectively.”  Bly, supra.

The defendant asserts that he had a subjective expectation of privacy that society would deem reasonable because he surrendered his personal property with the expectation the property would be returned to him.  He asserts that the storage of his property in compliance with the center’s policy created an involuntary bailment and the sergeant exceeded his authority by producing the items for viewing by detectives.  The Commonwealth counters that any expectation of privacy the defendant may have had was not reasonable, analogizing to Commonwealth v. Silva, 471 Mass. 610, 619-620 (2015), in which we considered whether a pretrial detainee who was on notice of the facility’s policy treating detainee and inmate clothing as contraband has a constitutionally protectable privacy interest in such clothing.  We held that there was not, because any expectation of privacy was not objectively reasonable under those circumstances.  Id.  Our decision in Silva is not dispositive, however, because the center had no policy treating the defendant’s property as contraband.  The center’s policy specifically distinguishes between street clothes, shoes, and contraband.[3]

Although the defendant’s challenge to the search warrant rests on the claim that the police viewing of his property was an illegal search, we bypass the issue because the legality of the search is not determinative of the propriety of the judge’s order denying the motion to suppress.   The denial of the defendant’s motions to suppress was proper under the principle that, “[e]ven though the exclusionary rule generally bars from admission evidence ‘obtained during an illegal search as fruit of the poisonous tree, evidence initially discovered as a consequence of an unlawful search may be admissible if later acquired independently by lawful means untainted by the initial illegality.’”  Commonwealth v. Estabrook, 472 Mass. 852, 865 (2015), quoting Commonwealth v. DeJesus, 439 Mass. 616, 624 (2003).  Accordingly, the evidence deriving from the defendant’s shoes was admissible “as long as the affidavit in support of the application for a search warrant contains information sufficient to establish probable cause to [seize the defendant’s shoes], apart from the observation of the [reddish brown stains].”  Commonwealth v. Gray, 465 Mass. 330, 346, cert. denied, 134 S. Ct. 628 (2013), quoting DeJesus, supra at 625.   To establish probable cause, “[a]n affidavit must contain sufficient information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that the items reasonably may be expected to be located in the place to be searched at the time the search warrant issues.”  Commonwealth v. Almonte, 465 Mass. 224, 233 (2013), quoting Commonwealth v. Wilson, 427 Mass. 336, 342 (1998).

The affidavit in support of the warrant to search and seize the defendant’s shoes included the following information.  The defendant previously had stolen prescription medication from the victim.  He admitted to being with her during the period when the murder was estimated to have occurred.  He told police that he wanted to buy her prescription medication at that time, but he did not have the money.  The defendant was apprehended for civil commitment to treat substance abuse issues no more than thirty-six hours after the murder was estimated to have occurred.  The crime scene indicated that the assailant likely would have injuries and blood evidence on his or her clothing and shoes.  The defendant’s clothing and shoes were stored at the center.  The affidavit also linked the defendant to the victim during the estimated time of her murder, established a conflict between the two, and created a reasonable inference that the defendant may have brought some or all of the items he was wearing at the time of the murder into the center.  Thus, we conclude that the affidavit supporting the August 31 warrant application contained sufficient facts, traceable to sources independent of the reddish brown stains observed on August 29, to establish probable cause.

Because a valid search warrant would have issued regardless of the inclusion of the reddish brown stains observed on the defendant’s shoes, there was an independent source for the challenged evidence.  See Gray, 465 Mass. at 347.  On this basis, we affirm the denial of the defendant’s motion to suppress the shoes.[4]  The defendant’s challenges to the other two warrants are premised on the same argument.  Although the defendant claims that the September 8 warrants impermissibly relied on evidence derived from the shoes, he does not argue that they otherwise lack probable cause.  Because we conclude that the shoes were lawfully seized, and thus, evidence deriving from them was properly included in the two affidavits dated September 8, we do not address those warrants except to note our agreement with the denial of the defendant’s three motions to suppress.

2.  Trial.  a.  Background.  We recite the facts as the jury could have found them, reserving other facts for later discussion.  On Saturday, August 27, 2011, the body of the victim was found by her daughter and the daughter’s boy friend.  On Tuesday afternoon, August 23, the victim left a voicemail message for her daughter.  Because the daughter could not contact her after that voicemail, she went to the victim’s apartment on Friday and Saturday to check on her.  On Saturday, the daughter’s boy friend entered the apartment through a window in the rear of the house leading to the victim’s bedroom.

Once inside, he saw the apartment in disarray and with blood in several areas.  The victim’s feet were sticking out from under a blanket on the couch.  He and the daughter telephoned 911.  They started cleaning up pipes used to smoke “crack” cocaine and needles that were in the apartment, but then realized it was a crime scene and placed those items on the counter.

Boston police arrived to process the scene and canvass the neighborhood for information.  A criminalist observed that the assault had occurred in the main living area and that the body was later moved to the couch and covered with a blanket.  The victim had severe trauma to the head, and the police did not find anything in the apartment that was consistent with being the murder weapon.  Police found an empty pill bottle that was labeled as Clonazepan, filled on August 11, 2013, and has a brand name of Klonopin.  A v-neck T-shirt and gray cut-off shorts, both wet, were collected from the bathroom.

The medical examiner who performed the autopsy determined the cause of death to be blunt impact injuries to the victim’s head.  He concluded that a cylindrical, round object such as a baseball bat or pipe caused the injuries.  The autopsy revealed decomposition, which begins approximately thirty-six hours after death, and mummification, which begins four to five days after death.  From that information, he estimated that death occurred more than thirty six hours before the body was found, by at least “several days.”  The prosecutor argued that the defendant murdered the victim between late afternoon Tuesday and Wednesday morning.

The victim sold prescription Klonopin pills, sometimes using the money to purchase “crack” cocaine.  The defendant lived across the street from the victim and had previously purchased drugs from her.  His mother testified that he had relapsed into taking drugs approximately one week before the victim’s body was found.  Although she said that he agreed to go to a treatment facility for a “few” days, he would not agree to a longer period.  She threatened to have him civilly committed for treatment several times.  The defendant was accused of stealing prescription pills from a different woman who lived in the same building as the victim.  Following the neighbor’s accusation, the defendant’s mother kicked him out of the house and, on Tuesday afternoon, went to court to have him committed.

The defendant was apprehended for commitment early on Wednesday morning.  Between the time that his mother kicked him out of the house and when he was apprehended, he stayed at the nearby house of his friend, Thomas Kinsella.  Kinsella’s house and the victim’s apartment are connected by a staircase in the rear of both buildings.

Kinsella and his sister, who was at Kinsella’s house on Tuesday with her young daughter, testified that defendant was gone for approximately a three-hour period sometime after 2 or 3 P.M.  Kinsella’s sister testified that the defendant left the house wearing a white T-shirt and black mesh shorts and returned sweaty and wearing a black Boston team shirt and cargo shorts.  Kinsella and his sister both testified that defendant said he had been helping a neighbor with yard work.  The neighbor testified that the defendant did not help him in the yard that day.

After he returned, the defendant filled two plastic grocery bags and placed them outside the door to Kinsella’s apartment.  A neighbor testified that he saw the defendant’s brother placing a plastic store bag in a trash receptacle in front of a convenience store, but he could not recall when that occurred.  The defendant’s brother testified that he only used the trash can for his family’s home, not the one at the convenience store.

Kinsella and his sister went to bed at approximately 7:30 P.M.  The defendant was at Kinsella’s house when they went to bed.  Kinsella’s sister woke up at approximately 6:30 A.M. on Wednesday, and the defendant was in the living room with items from a doughnut shop for her and her daughter.

In addition to the seizure of the defendant’s shoes discussed supra, police seized a baseball bat from Kinsella’s home, which had one fingerprint on the grip and reddish brown stains.  Blood found on the grip, barrel, and butt of the bat was consistent with the victim’s DNA profile.[5]  Handler DNA taken from the grip of the bat contained a mixture that was consistent with three DNA profiles:  the victim, the defendant, and Kinsella.[6]  When testing for handler DNA, the analyst swipes an entire area to determine if any nonvisible DNA may be collected from locations where an item is typically handled.  The tongue of the defendant’s right shoe and the sole of the left shoe contained a mixture of DNA that was consistent with DNA profiles for the victim and the defendant.[7]  Kinsella was excluded as a possible contributor to the DNA found on the shoes.

The defendant, who did not testify or present witnesses, argued through cross-examination and closing that lack of motive and faulty police investigation created reasonable doubt.  He named Kinsella as the killer and argued that the defendant’s DNA was on the baseball bat because he took the bat from Kinsella’s niece the morning before he was committed and that Kinsella wore his shoes to commit the murder.

b.  DNA evidence.  Relying on Commonwealth v. Mattei, 455 Mass. 840, 855 (2010), in which we held that nonexclusion DNA results must be presented with statistics explaining the significance of that evidence, the defendant challenges the admission of evidence that the victim’s blood was on his shoes because the DNA test results were not provided with statistics.  Where the defendant did not object at trial and claims that counsel was ineffective for failing to preserve the issue, we review under G. L. c. 278, § 33E, “to determine whether any substantial conduct or omission by counsel ‘was likely to have influenced the jury’s conclusion.’”  Commonwealth v. Montez, 450 Mass. 736, 754 (2008), quoting Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).

The defendant’s argument is unavailing.  The DNA report by the Boston police crime laboratory was provided to the defendant before trial.  The report stated that the statistical likelihood of a match in the general population to the victim’s DNA profile taken from the defendant’s shoes was in the millions to quintillions.  Where the statistics in this case, if admitted, would have demonstrated that the likelihood of another person besides the victim leaving the DNA on the defendant’s shoes was less than one in one million, the evidence would have been damaging to the defendant.  Underlying our holding in Mattei was the concern that nonexclusion DNA results without statistics could mislead jurors into thinking that the results are conclusive when the DNA could have been left by “half the people in the world.”  Mattei, 455 Mass. at 852, quoting Commonwealth v. Mattei, 72 Mass. App. Ct. 510, 522 (2008) (Rubin, J., dissenting).  Such a concern is not applicable to the facts of this case, where the statistics would have demonstrated the high probability that the DNA on the defendant’s shoes belonged to the victim.

c.  Jury instruction on mental impairment.  The defendant argues that the judge committed reversible error by failing to instruct the jury that they could consider evidence of the defendant’s consumption of drugs as it related to his ability to act with extreme atrocity or cruelty or with deliberate premeditation.  If requested, a defendant is entitled to such an instruction.  See Commonwealth v. Doucette, 391 Mass. 443, 455 (1984), citing Commonwealth v. King, 374 Mass. 501, 508 (1978) (premeditation), and Commonwealth v. Perry, 385 Mass. 639, 648-649 (1982), S.C., 424 Mass. 1019 (1997) (extreme atrocity or cruelty).  Additionally, a judge must instruct the jury that they could consider evidence of a defendant’s mental impairment on the question of extreme atrocity or cruelty where evidence of such “mental impairment is significant and where it is a critical aspect of [his] defense.”  Commonwealth v. Rutkowski, 459 Mass. 794, 799 (2011).

In this case, the defendant did not request such an instruction or specifically object to its omission.  The defendant requested a manslaughter instruction, and the Commonwealth objected, arguing that there was no specific evidence of drug or alcohol use that had any effect on the defendant’s state of mind.  The defendant asserted that the relevant evidence was the Commonwealth’s theory that the defendant “was in such a state of withdrawal that he was willing and able and actually did . . . kill someone to get her prescription bottle of Klonopin.”[8]  The judge denied the defendant’s request, and the defendant objected.  The defendant concedes that this discussion was not sufficient to preserve the issue, and we review to determine if any error created a substantial likelihood of a miscarriage of justice.  Commonwealth v. Smith, 449 Mass. 12, 19 (2007), citing Commonwealth v. Berry, 420 Mass. 95, 113 (1995).

The omission of a mental impairment instruction in this case did not create a substantial likelihood of a miscarriage of justice.  First, mental impairment was not central to his defense where the defendant argued that someone else was the perpetrator.  See Commonwealth v. Sanna, 424 Mass. 92, 102 (1997).  Also, there was nothing close to “significant” evidence of the defendant’s mental impairment.  Contrast Rutkowski, 459 Mass. at 798-799.

Several witnesses testified about the defendant’s behavior around the estimated time of the murder.  The defendant’s mother and sister both testified that the defendant was “upset” on Monday and Tuesday afternoons because he had been kicked out of the house.  Kinsella testified that the defendant was upset on Tuesday afternoon before the two- to three-hour period when he was unaccounted for and that he returned “more relaxed.”  Kinsella noted that the defendant had one and one-half Suboxone pills (a medication to treat opiate dependency) when he returned, but Kinsella had no knowledge about whether the defendant took the pills.  The police officers who apprehended the defendant for commitment on Wednesday morning testified that the defendant appeared “nervous” but cooperated after being told that he was being committed, and he asked questions relevant to the apprehension.  Significantly, no witness noted that the defendant appeared impaired or testified to any observations of the defendant’s consumption of drugs or alcohol.

Because any diminished capacity instruction would have been of minimal significance considering the lack of evidence demonstrating any mental impairment, we conclude that the failure to give such an instruction did not create a substantial likelihood of a miscarriage of justice.[9]  See Commonwealth v. Rosado, 434 Mass. 197, 207, cert. denied, 534 U.S. 963 (2001).

d.  Juror bias.  During the afternoon break on the third day of trial testimony, an individual who had been watching the trial approached defense counsel and told him that he overheard two jurors discussing the trial during the morning break.  The judge conducted a voir dire, and the individual explained that he was at the court for a civil case scheduled for 2 P.M. and decided to sit in on this trial while he waited.  He said he was outside smoking during the morning break when he heard a female juror telling a male juror that “the witness was not credible” and the male respond, “nobody’s paying attention to the case, and he probably guilty already.”[10]  After he heard the two talking, the individual started eavesdropping by pretending that he was looking at a statue.  The individual told the judge that he had been falsely accused of murder in the early 1990s, and the conversation bothered him because he knew from his murder trial that jurors were not supposed to talk to each other about the case.  The individual provided conflicting testimony about the timing of his realization that the conversation was between two jurors.

The judge conducted a voir dire of the two jurors in question.  The female juror, in seat three, testified that she did not remember speaking to anyone and did not remember making any statements about a witness’s credibility or the guilt of the defendant.  The juror said that she did not “really know all the jurors so [she did not] speak to any of them” and did not know “who the black male is with beige pants.”  Lastly, she told the judge that she could say with confidence that she did not make the statements attributed to her.

The judge then conducted a voir dire of the male juror in seat nine.  The juror testified that he did speak with the female juror, and referred to her correctly by her first name, but said that they were discussing a case in Florida that was in the news at the time and did not discuss this case.  The juror stated that the only reference he may have made to this case was to say that he was keeping a clear mind.

The judge discussed an option of making the female juror an undisclosed alternate, but instead determined that the juror was indifferent.  He found the two jurors to be credible and the individual to lack credibility, and he rejected defense counsel’s argument that the testimony by the two jurors was contradictory.  Neither juror was chosen as an alternate.

The defendant argues that the judge abused his discretion in finding the female juror to be impartial.  Because “[t]he determination of a juror’s impartiality ‘is essentially one of credibility, and therefore largely one of demeanor,’ . . . we give a trial judge’s determination of impartiality great deference” (citations omitted).  Commonwealth v. McCowen, 458 Mass. 461, 493 (2010).  Accordingly, we review questions of juror bias for “clear abuse of discretion or a showing that the judge’s findings were clearly erroneous.”  Commonwealth v. Torres, 437 Mass. 460, 469 (2002), quoting Commonwealth v. Amirault, 399 Mass. 617, 626 (1987), S.C., 404 Mass. 221 (1989).

Specifically, the defendant argues that the female juror was intentionally dishonest and should have been excused.  We conclude that the judge did not abuse his discretion, as the testimony of the two jurors was not necessarily contradictory.  Although the male juror testified that the two spoke, it is possible that the female juror did not recall the conversation because it was not concerning this case.  Moreover, we cannot say that the juror’s statement that she did not know “who the black male is with beige pants” was dishonest as even the court officers first obtained the wrong juror based on that description, and the individual had to correct them so that the proper male juror was identified.  Our review demonstrates that the judge reasonably could have found the juror credible and, therefore, did not abuse his discretion.

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

So ordered.

Full-text Opinions

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15-P-253                                        Appeals Court

DONALD R. LANDRY  vs.  MASSACHUSETTS PORT AUTHORITY & another.[1]

No. 15-P-253.

Hampden.     November 12, 2015. – April 12, 2016.

Present:  Cohen, Grainger, & Wolohojian, JJ.

Massachusetts Port Authority.  Municipal Corporations, Liability for tort.  Practice, Civil, Summary judgment, Interlocutory appeal, Execution.  Negligence, Use of way.  Way, Public:  defect.  Notice, Action alleging injury caused by defect in public way.

Civil action commenced in the Superior Court Department on June 25, 2012.

The case was heard by C. Jeffrey Kinder, J., on motions for summary judgment.

Tara E. Lynch for the defendants.
Enrico M. De Maio for the plaintiff.

     COHEN, J.  The plaintiff, Donald R. Landry, brought this negligence action pursuant to the Massachusetts Tort Claims Act, G. L. c. 258, seeking damages from the defendants, the Massachusetts Port Authority (Massport) and the city of Worcester (city), for injuries he sustained at the Worcester Regional Airport (airport) when a motorized sliding gate pinned him to a metal bar protruding from the gate post.  The defendants jointly moved for summary judgment, claiming that Landry was injured by reason of a defect in a way and, hence, his exclusive remedy was an action under G. L. c. 84, §§ 15, 18, and 19.^[2]  See Botello v. Massachusetts Port Authy., 47 Mass. App. Ct. 788, 789 & n.3 (1999).  Because it was undisputed that Landry had not given notice within thirty days of his injury, as required by c. 84, § 18,^[3] the defendants argued that they were entitled to judgment as matter of law.  The city also argued that it was entitled to summary judgment for the independent reason that it was not responsible for “the way at issue.”

A judge of the Superior Court denied summary judgment, concluding that the defendants had failed to establish that the site of the accident was a “way,”^[4] and that there remained a genuine issue of material fact as to the city’s responsibility for the maintenance and operation of the gate.  The defendants then jointly filed a notice of appeal from this interlocutory order, claiming entitlement to immediate review under the doctrine of present execution.  Although we conclude that the appeal is not properly before us and must be dismissed, we exercise our discretion to consider the defendants’ substantive arguments, which we find to be without merit.

Background.  Viewing the evidence in the summary judgment record in the light most favorable to the nonmoving party, see Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), the relevant facts may be summarized as follows.  On June 26, 2009, Landry, an employee of a commercial laundry, drove to the airport to make a delivery of clean uniforms to the airport maintenance department.  At that time, under the terms of an agreement between Massport and the city, Massport operated the airport but all maintenance personnel were employed by the city.

Landry had been making such deliveries for six years.  In the beginning, he would drive up to the airport’s main gate, i.e., gate ten, where security guards would inspect his vehicle, escort him to the maintenance garage, and then escort him out.  Because this was a time-consuming process, approximately one year before his injury, Landry was given permission to park his vehicle outside gate eighteen,[5] which was right outside the maintenance garage.  He then would be admitted through that gate and proceed on foot.

The gate was twenty to twenty-five feet long, and ten feet high.  It was motorized and moved on wheels from left to right.  When the gate was not padlocked, it could be operated by remote control.  Typically, when Landry arrived, a worker would come out of the maintenance garage, go over to one of the maintenance trucks parked outside, reach up to a remote control on the visor, and press the button to open the gate.

On the day of the accident, Landry telephoned ahead and received confirmation that he should go to gate eighteen.  When he arrived, the gate was closed but not padlocked.  A maintenance employee spotted him and used the remote control in a maintenance truck to open the gate.  Instead of opening all the way, however, the gate moved only about three to four feet.  After waiting approximately thirty to forty seconds with no further movement of the gate or instructions from the employee using the remote control, Landry began to walk sideways through the opening.  This was a tight space, not only because Landry was carrying a load of uniforms slung over his shoulder, but also because there was a twelve-inch piece of angle iron protruding from the gate post in order to guide the gate into place as it closed.

With Landry’s back to the gate, and his chest facing the angle iron, the gate suddenly began to move, pushing him into the angle iron.  As a result, he sustained a fractured sternum and was unable to work for two months.  When he returned, he spoke with a few of the maintenance employees, who told him that the remote control button had gotten stuck.  They also told him that this had been an ongoing issue and that, prior to his accident, the gate had been closing on their pickup trucks as they went through.

Discussion.  1.  Doctrine of present execution.  The doctrine of present execution is a narrow exception to the principle that there is no right of appeal from an interlocutory order unless one is authorized by statute or rule.  Marcus v. Newton, 462 Mass. 148, 151-152 (2012).  The exception applies when two criteria are met:  the interlocutory ruling must interfere with rights in a manner that cannot be remedied on appeal from the final judgment, and the matter to be decided on appeal must be collateral to the merits of the controversy.  Id. at 152.

In this case, even assuming that the first criterion is met because the defendants’ immunity from suit is implicated,[6] we are unpersuaded that the second criterion has been satisfied.  A collateral issue is “one that will not have to be considered at trial.”  Shapiro v. Worcester, 464 Mass. 261, 264 n.2 (2013) (citation omitted).  Here, however, in order to decide whether Landry’s claim is subject to c. 84, it must be determined where and how his injury occurred.  Such factual issues are not collateral; they are essentially congruent with issues to be tried.

The case of Rodriguez v. Somerville, 472 Mass. 1008, 1009-1010 (2015), relied upon by the defendants, is distinguishable.  In that case, the issue presented for interlocutory review was whether the plaintiff’s presentment letter pursuant to G. L. c. 258, § 4, was defective.  This issue was discrete and unrelated to the underlying facts pertaining to the plaintiff’s injury.  Similarly, in Shapiro v. Worcester, supra at 265, the issue of the retroactivity of the presentment requirement was separate from those raised by the plaintiff’s underlying nuisance claim and, therefore, appealable under the doctrine of present execution.

We are compelled to conclude that the defendants’ appeal is not properly before us.^[7]

2.  Denial of summary judgment.  Nevertheless, we comment on the merits of the defendants’ arguments, as the issues have been fully briefed, questions concerning the parameters of liability under c. 84 are recurrent, and our discussion may be instructive in future cases.  Cf. Marcus v. Newton, 462 Mass. at 153.  We review the denial of the defendants’ motion for summary judgment de novo.  Anderson v. Gloucester, 75 Mass. App. Ct. 429, 432 (2009).

In order to be subject to c. 84, §§ 15, 18, and 19, the injury in question must have come about “by reason of a defect . . . in or upon a way.”  G. L. c. 84, § 15.  Here, the defendants have not shown that this statutory test is met.  First, the facts of record do not establish as matter of law that the site of Landry’s injury was a way.  Notwithstanding Landry’s testimony that he traversed gate eighteen on foot with some regularity, it is not conclusively established that the place where he was trapped was a roadway, sidewalk, or travel lane.  The defendants submitted no affidavit or testimony concerning the accident site from anyone associated with the airport.  There are, moreover, photographs in the record that raise a question whether gate eighteen simply marked the beginning of a restricted area used by the maintenance department for parking and storing their vehicles and equipment.  See Polonsky v. Massachusetts Port Authy., 60 Mass. App. Ct. 922, 923 (2004) (parking area at airport was not a way).

In any event, even if the accident occurred on a way, in order for c. 84 to apply, Landry’s injury had to be sustained “by reason of” a “defect in or upon the way.”  G. L. c. 84, § 15.  In this respect, “it is not the location of the injury, but rather the plaintiff’s theory of liability, that renders the [application of c. 84 and its notice requirement] at best unclear.”  Peters v. Haymarket Leasing, Inc., 64 Mass. App. Ct. 767, 777 (2005).

Landry has a factually supported theory of liability that his injury resulted not from any defect in the area where he was injured, but from human agency — the negligent operation or maintenance of the remote control by a person or persons employed by or under the supervision of the city, Massport, or both, which caused the motorized sliding fence to move unexpectedly while Landry was walking through the gate.  On that theory of the case, neither defendant was entitled to summary judgment.

Appeal dismissed.

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-11872

BURBANK APARTMENTS TENANT ASSOCIATION & others[1]  vs.  WILLIAM M. KARGMAN[2] & others.[3]

Suffolk.     December 8, 2015. – April 13, 2016.

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

Housing.  Fair Housing Act.  Anti-Discrimination Law, Housing.

Civil action commenced in the Boston Division of the Housing Court Department on March 16, 2011.

A motion to dismiss was heard by Jeffrey M. Winik, J.

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

Ann E. Jochnick (James M. McCreight with her) for the plaintiffs.

Janet Steckel Lundberg for the defendants.

The following submitted briefs for amici curiae:

John Cann, of Minnesota, for Sargent Shriver National Center on Poverty Law & others.

Harry J. Kelly & Joshua S. Barlow for Greater Boston Real Estate Board & others.

Joseph D. Rich & Thomas Silverstein, of the District of Columbia, Oren M. Sellstrom, of California, & Laura Maslow-Armand for Lawyers’ Committee for Civil Rights Under Law & another.

John J. McDermott, of Virginia, & Eleftherios Papadopoulos for National Apartment Association & another.

Esme Caramello, Louis Fisher, Erika Johnson, Aditya Pai, & Katie Renzler for Fair Housing Center of Greater Boston & others.

Roberta L. Rubin, Special Assistant Attorney General, for Department of Housing & Community Development.

CORDY, J.  This case arises out of a decision made by the defendants, the principals and owners of Burbank Apartments (Burbank), not to renew Burbank’s project-based Section 8 housing assistance payments contract (HAP) with the United States Department of Housing and Urban Development (HUD) when its forty-year mortgage subsidy contract expired on March 31, 2011.  In lieu of those project-based subsidies, the defendants opted instead to accept from its tenants Section 8 enhanced vouchers, enabling tenants living in units subsidized on a project basis to remain as tenants under an alternative Federal housing program.[4]  See 42 U.S.C. § 1437f (2012).

The plaintiffs, comprised of current and potential Burbank tenants, complained that Burbank’s decision violated § 3604 of the Federal Fair Housing Act (FHA or Title VIII), 42 U.S.C. §§ 3601 et seq. (2012), and the Massachusetts antidiscrimination law, G. L. c. 151B, § 4, both by virtue of intentional discrimination as well as disparate impact on members of otherwise protected classes of citizens.  In particular, the plaintiffs alleged that the defendants’ decision not to renew their HAP would have a disproportionately negative effect on people of color, the disabled and elderly, female-headed households, recipients of public and rental assistance, and families with children (collectively, members of protected classes).

In March, 2011, the plaintiffs moved to enjoin the defendants from allowing Burbank’s project-based HAP to lapse; the defendants demurred, and a Housing Court judge (motion judge) denied the injunction.  The plaintiffs filed an amended complaint in June, 2011, which the defendants moved to dismiss for failure to state a claim, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and oral arguments were held on January 25, 2012.  On December 31, 2014, the motion judge granted the defendants’ motion to dismiss.  The plaintiffs appealed.

The plaintiffs’ housing discrimination claims, based on the theory of disparate impact, raise an issue of first impression in Massachusetts concerning the relationship among Section 8, the FHA, and the Massachusetts antidiscrimination statute (together the fair housing statutes).  Specifically, can a private building owner’s decision not to renew participation in the project-based Section 8 subsidy program in favor of tenant-based Section 8 subsidies be the basis of a disparate impact claim when such decision was otherwise permitted by both Federal and State statutes, as well as by contract?  And, if so, what are the pleading requirements for making out such a claim?

In his comprehensive memorandum of decision and order, the motion judge determined that a disparate impact claim under these circumstances is not legally cognizable, and never reached the second question.  Subsequently, the United States Supreme Court released its decision in Texas Dep’t of Hous. & Community Affairs v. The Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2525 (2015) (Inclusive Communities), holding that claims, such as this one, based on the theory of disparate impact are generally cognizable under the FHA.  We granted the plaintiffs’ application for direct appellate review to consider their allegations in the context of the FHA, as well as the potential for similar claims under Massachusetts antidiscrimination law, and to examine the impact of the Inclusive Communities decision.

We affirm the decision of the motion judge granting the motion to dismiss, although on somewhat different grounds.  We conclude that even where the property owner has acted in accord with statute, regulation, and contract, a disparate impact claim under the fair housing statutes can be brought, subject to rigorous pleading requirements.  The plaintiffs in the present case, however, have not satisfied those requirements.[5]

1.  Background.  a.  Statutory background.  In 1965, Congress, under the auspices of the National Housing Act of 1934, approved a mortgage insurance program known as § 221(d)(3) of the National Housing Act, 12 U.S.C. § 1715l(d)(3) (2012).  See 12 U.S.C. § 1701s(a).  Pursuant to § 221(d)(3), which was “designed to assist private industry in providing housing for low and moderate income families and displaced families,” 12 U.S.C. § 1715l(a), HUD can offer below market interest rate (BMIR) mortgage loans to private property owners in exchange for an agreement from those owners to provide affordable housing.[6]  See 12 U.S.C. § 1715l(d)(3).  The regulatory agreements, and the attached mortgages, may have up to forty-year terms, 12 U.S.C. § 1701s(a), but permit the owners to opt to pay down those mortgages and withdraw from the program after twenty years.  12 U.S.C. § 1715l(g)(4)(A).

The Section 8 housing program was enacted in 1974 for the purpose of “aiding low-income families in obtaining a decent place to live and of promoting economically mixed housing.”  42 U.S.C. § 1437f(a).[7]  See Figgs v. Boston Hous. Auth., 469 Mass. 354, 362 (2014); Feemster v. BSA Ltd. Partnership, 471 F. Supp. 2d 87, 91 (D. D.C. 2007), aff’d, 548 F.3d 1063 (D.C. Cir. 2008).  Housing assistance through Section 8 is obtained through either “tenant-based” or “project-based” subsidies.  24 C.F.R. § 982.1(b)(1) (2015).  Both forms are funded by the Federal government and administered by State or local public housing agencies (PHAs).  See 42 U.S.C. § 1437f(a); 24 C.F.R. § 982.1(a)(1).  For project-based assistance, the “rental assistance is paid for families who live in specific housing developments or units.”  24 C.F.R. § 982.1(b)(1).  Tenant-based assistance, on the other hand, is appurtenant to the tenant, and the “assisted unit is selected by the family,” so that the tenant may opt to “rent a unit anywhere . . . in the jurisdiction of a PHA that runs a voucher program.”  Id.  See 42 U.S.C. §§ 1437f(r); 24 C.F.R. §§ 982.353(a) (2010), 982.355(a) (2015).  After Congress enacted the Section 8 program in 1974, many of the units built with the assistance of the § 221(d)(3) mortgage program were transferred to project-based Section 8 rent subsidies, including many of those at Burbank.  See Feemster, supra.

In 1987, and in response to subsequent concerns that owners operating under § 221(d)(3) regulatory agreements were opting to pay down their mortgages early and opt out of the Section 8 program, see Franconia Assocs. v. United States, 536 U.S. 129, 136 (2002), citing H. R. Rep. No. 100-122, at 53 (1987)  (interpreting 1994 version of 42 U.S.C. § 1472[c][4][B]). Congress enacted the Emergency Low-Income Housing Preservation Act of 1987 (ELIHPA) to provide incentives for continued participation by property owners.  Franconia Assocs., supra, citing 42 U.S.C. § 1472(c)(4)(B) (1994 ed. and Supp. V).  Congress also later provided further protection for tenants, including eligibility for tenant-based vouchers on the expiration of a project-based HAP.  12 U.S.C. § 4113 (2012).  Pursuant to that statute, where an owner opted to terminate or discontinue project-based subsidies, low income tenants in the units previously subject to that program automatically would be eligible for Section 8 mobile vouchers, see 12 U.S.C. § 4113(a), and, in some instances, enhanced vouchers.  See 12 U.S.C. § 4113(f).  Further, property owners opting out of project-based subsidies — but continuing to maintain the property for residential rental occupancy — are required to accept the tenant-based Section 8 subsidies for which their tenants were automatically eligible.  12 U.S.C. § 4113(d).

In 2009, the Legislature enacted cognate legislation, G. L. c. 40T (c. 40T), which addresses the rights and obligations of owners operating with project-based Section 8 subsidies.  See G. L. c. 40T, § 1.  See also St. 2009, c. 159, § 1.  Like the equivalent Federal statutes, c. 40T provides substantive protections for tenants previously occupying units covered by project-based subsidies.  See, e.g., G. L. c. 40T, §§ 2 (b), 7.  See also 42 U.S.C. § 1437f(c)(8)(B).  Also consonant with Federal law, however, c. 40T does not restrict owners from prepaying their mortgages or opting out of their subsidy contracts after doing so.  See G. L. c. 40T, § 2 (a) (“Nothing herein shall prohibit the owner from taking actions to terminate an affordability restriction”).

The distinctions between project-based and tenant-based subsidies (and among the various tenant-based subsidies themselves) are not insignificant.  Generally, all Section 8 tenants contribute a portion of their income to the rent based on an income indicator, amounting to the higher of thirty per cent of their monthly adjusted income or ten per cent of their monthly gross income.[8]  See 42 U.S.C. §§ 1437f(o)(2)(A), 1437a(a)(1).  There are, however, variations on the general scheme depending on the subsidy program, including who is responsible for determining a unit’s rental price.  For project-based entities, the PHA is responsible for setting rental prices for specific units.  See 24 C.F.R. §§ 983.301 (2014), 983.302 (2006).[9]

Rental prices for tenants holding tenant-based vouchers, on the other hand, are negotiated between the owner and the tenant.  24 C.F.R. § 982.506 (1999).  The Secretary of HUD sets a “payment standard” applicable to the units selected by the tenant, based on the fair market rental value of the unit, and in accordance with HUD regulation.  See 42 U.S.C. § 1437f(o)(1)(A)-(B).  Where the rent established in negotiation between the owner and the tenant exceeds the established payment standard, the PHA will pay only the difference between the income indicator and the payment standard, as opposed to the rental value, meaning that holders of tenant-based vouchers may be subject to paying a greater portion of their income than tenants living in project-based units.  See id. at § 1437f(o)(2)(B).

Enhanced vouchers, a more protective variation on the tenant-based subsidy, insulate holders from these rent variances, as their rent payments are still determined based on the difference between the income indicator and the rent, even if that rent exceeds the payment standard.  Id. at § 1437f(t)(1)(B).  In either tenant-based subsidy scenario, however, the rental value negotiation between an owner and tenant-based subsidy holder is subject to PHA approval, meaning that PHAs can opt not to approve a rental agreement and refuse to pay the subsidy if the PHA determines that the rent is not “reasonable.”  See 24 C.F.R. § 982.507 (2014); 42 U.S.C. § 1437f(o)(10)(B).  Because rents are established by the PHA under the project-based subsidy program, tenants living in project-based units are not subject to any reasonableness determination.[10]

b.  Factual and procedural background.[11]  The seven named plaintiffs in the amended complaint are an amalgamation of current Burbank tenants, prospective tenants, and organizations that represent the interests of other Burbank tenants and more prospective Burbank residents in the community.  The four individual plaintiffs, En Ci Guan, Richard Webster, Byron Alford, and Satisha Cleckley, are all members of protected classes.  Prior to the defendants’ decision not to renew their Section 8 HAP, Guan and Webster lived in units supported by Section 8 project-based subsidies.  Alford was a resident of a Burbank unit not supported by the Section 8 project-based subsidy, and Cleckley was a nontenant who had sought to apply for an apartment at Burbank.  Neither Alford nor Cleckley was ever in receipt of the project-based subsidy.  The individual plaintiffs claimed that the decision to allow the project-based subsidy to lapse discriminates against current Burbank tenants and potential Burbank tenants in the Fenway community.  The three organizational plaintiffs, Burbank Apartments Tenant Association, made up of tenants who reside at Burbank; the Massachusetts Coalition for the Homeless, a nonprofit corporation that works with homeless individuals and families; and the Fenway Community Development Corporation, a nonprofit corporation devoted to enhancing diversity in the Fenway neighborhood, alleged that the loss of low income housing at Burbank would harm the neighborhood.  The defendants are the principals and owners of Burbank.[12]

Burbank is a scattered site 173-unit rental development located in the Fenway neighborhood of Boston.  Beginning in 1970, the defendants began renovation of Burbank with the assistance of a federally insured and subsidized § 221(d)(3) BMIR mortgage loan.  See 12 U.S.C. § 1715l(d)(3).  Pursuant to their regulatory agreement with HUD, the defendants were obligated to lease the Burbank apartments to low or moderate income families for “so long as the contract of mortgage insurance continues in effect.”  The defendants’ mortgage was to be fully paid by April 1, 2011, with prepayment of the mortgage permitted as of April 1, 1991.

In 1982, the eligible tenants occupying Burbank’s units began to receive support from project-based Section 8 subsidies.[13]  Sixty-seven of the 173 units were designated as project-based Section 8 units.

The defendants opted not to prepay their loan in 1991.  Instead, they signed an ELIPHA use agreement[14] in 1994, specifying that HUD “shall not require the [defendants] to renew or extend any assistance contract beyond [April 1, 2011,] and shall not subject the [defendants] to more onerous requirements than those which exist under the Section 8 program.”  The use agreement remained in effect for the balance of the HAP.

In 2010, the defendants provided a one-year notice of expiration to HUD and the subsidized tenants at Burbank, as required by both Federal and State statute.[15]  See 42 U.S.C. § 1437f(c)(8); G. L. c. 40T § 2 (b).  As of April, 2011 (when the HAP ended), tenants in 129 of the 173 units at Burbank (including each of the three individual plaintiffs who were existing tenants) were deemed eligible for the enhanced voucher program.[16]  As a consequence of Burbank’s decision to leave the project-based subsidy program, the Boston Housing Authority obtained funding for a total of 171 new Section 8 enhanced vouchers, which can be retained by the city of Boston regardless of whether they would be used at Burbank.

As alleged in the complaint, Burbank tenants, including those receiving Section 8 subsidies, are, on average, more diverse than the surrounding neighborhood, and have a lower income than the area median.  For example, as of December 16, 2010, sixty-five per cent of the Section 8 households at the development had heads of household who were either persons of color, Hispanic, or both.  On the other hand, the population of the Fenway zip code area is sixty-six per cent white, and the immediate census tract is seventy-three per cent white and only six per cent African-American.  In addition, the majority of prospective tenants who were on the waiting list for project-based Section 8 units at Burbank were members of protected classes.  As of December, 2009, two-thirds of the prospective tenants on the waiting list were persons of color, and in December, 2010, only one of the responding eighty prospective tenants on the waiting list identified himself or herself as “white.”

The plaintiffs’ amended complaint raised two claims.  The first count alleged subsidy discrimination, in violation of G. L. c. 151B, § 4 (10), because Guan and Webster, who were receiving the project-based subsidies prior to April 1, 2011, would no longer be eligible for such subsidies.  Further subsidy discrimination was alleged under G. L. c. 151B, § 4 (5) and (10), because applicants and prospective applicants for the project-based units, including Cleckley and Alford, claimed that the defendants’ decision rendered them ineligible for a sufficient housing subsidy, and they are therefore unable to afford market rents at Burbank.

The second count alleged that the defendants’ decision not to renew the HAP was unlawful because it was discriminatory, based on both disparate treatment and disparate impact, in violation of G. L. c. 151B, § 4, and 42 U.S.C. § 3604.

The judge granted the defendants’ motion to dismiss both counts of the amended complaint, pursuant to Mass. R. Civ. P. 12 (b) (6), for failure to state a claim on which relief can be granted.  With respect to the first count, subsidy discrimination under G. L. c. 151B, § 4 (10), the judge ruled that the defendants “lawfully transitioned from one form of Section 8 subsidy (project-based) to another form of Section 8 subsidy (individual enhanced Section 8 vouchers) as [they were] permitted to do under [F]ederal law.”  The tenant plaintiffs were therefore not unlawfully discriminated against when they received the enhanced vouchers as opposed to the project-based subsidies.  The judge dismissed the prospective applicants’ G. L. c. 151B, § 4 (10), claims as too speculative and indefinite.

As for the second count, the judge dismissed the claim for intentional discrimination (a ruling that the plaintiffs have not appealed), and adopted a per se rule that precludes disparate impact liability where the decision not to renew a project-based subsidy was reached in compliance with applicable statutes and regulations.

2.  Discussion.  We review the allowance of a motion to dismiss de novo, accepting as true the facts alleged in the plaintiffs’ amended complaint and exhibits attached thereto, and favorable inferences that reasonably can be drawn from them, see Coghlin Elec. Contractors, Inc. v. Gilbane Bldg. Co., 472 Mass. 549, 553 (2015).  We also take into consideration matters of public record.  See Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000).  Those alleged facts, and reasonable inferences drawn therefrom, must plausibly suggest an entitlement to relief.  See Flagg v. AliMed, Inc., 466 Mass. 23, 26-27 (2013), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).  The facts, therefore, “must be enough to raise a right to relief above the speculative level.”  Iannacchino, supra, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (Twombly).  While “detailed factual allegations” are not required at the pleading stage, mere “labels and conclusions” will not survive a motion to dismiss.  Iannacchino, supra, quoting Twombly, supra.

On appeal, the plaintiffs pursue a discrimination claim because, as they argue, the defendants’ decision has — and inevitably will continue to — challenge integration efforts and perpetuate the segregation that has plagued Boston, generally, and the Fenway neighborhood, specifically.[17]  The plaintiffs argue that the defendants’ decision not to renew their HAP subjects the defendants to subsidy discrimination, in violation of G. L. c. 151B, § 4 (10); and housing discrimination, in violation of 42 U.S.C. §§ 3604(a), (b) and G. L. c. 151B, §§ 4 (6), (7), and (11).  Neither shoe fits.[18]

a.  Subsidy discrimination under G. L. c. 151B, § 4 (5), (10).  The plaintiffs, in the first count of their complaint, contend that the defendants’ decision not to renew the project-based Section 8 subsidies constitutes public assistance discrimination under G. L. c. 151B, §§ 4 (5) and (10).

It is “an unlawful practice . . . to discriminate against any . . . tenant receiving [F]ederal, [S]tate, or local housing subsidies . . . because of any requirement of such . . . housing subsidy program,” G. L. c. 151B, § 4 (10), or to “aid[ or] abet” such a violation.[19]  G. L. c. 151B, §§ 4 (5), (10).  See DiLiddo v. Oxford St. Realty, Inc., 450 Mass. 66, 78 (2007).  General Laws c. 151B, § 4 (10), has the goal of providing “affordable, decent housing for those of low income.”  Attorney Gen. v. Brown, 400 Mass. 826, 830 (1987).  “[T]he decision not to enroll in a voluntary governmental program by itself [does not] constitute[] unlawful discrimination under G. L. c. 151B, § 4 (10).”  Hennessey v. Berger, 403 Mass. 648, 652 (1988).  However, the voluntary nature of a program does not preclude the application of State law “mandating participation [in the voluntary Federal program] absent some valid nondiscriminatory reason for not participating.”  Brown, supra.[20]  In short, although the defendants are not obligated to participate in the project-based subsidy program, that fact alone does not shield them from an adequately pleaded claim.  The plaintiffs, however, have failed to adequately plead such a claim.

The plaintiffs’ subsidy discrimination claim plays out differently for the various groups.  We begin with the claim made by Guan.[21]  His claim relies largely on the assertion that he will be injured by the change in subsidy program because the enhanced vouchers he received are less favorable than the project-based subsidies.  Beyond bare “labels and conclusions,” Iannacchino, 451 Mass. at 636, quoting Twombly, 550 U.S. at 555, the plaintiffs allege no facts to suggest that the decision to opt out of the project-based subsidy program violated the fair housing statutes or was discriminatory in nature.  Every participant in the project-based subsidy program prior to its nonrenewal was deemed eligible for an enhanced voucher, which the defendants accepted and encouraged their tenants (both those formerly part of the project-based program and those who were not but received enhanced vouchers) to continue to use.[22]

This case does not present a situation in which the property owner has placed a barrier on tenancy due to the proffer of a certain form of subsidy, and not provided for an alternative means to remain in the unit.  Contrast DiLiddo, 450 Mass. at 72.  Instead, it is the lawful replacement of one form of subsidy (project-based) with another (tenant-based), both of which allowed the tenants to remain in their units.  It is indeed telling that every former participant in the project-based subsidy — including Guan — continued to occupy his or her unit after the HAP lapsed, relying instead on the tenant-based enhanced voucher subsidies.  It is therefore apparent that the defendants were willing to accept, as the Federal statute requires, and even accommodate, tenants who were receiving housing subsidies.

Moreover, it is not apparent that receipt of the enhanced vouchers has, or will, disadvantage these plaintiffs.[23]  At any rate, even if we were to assume that receipt of the project-based subsidies is more favorable than the enhanced vouchers, what the law requires is that the defendants not discriminate against public assistance recipients in general, not that they must provide the best — or any particular — form of rental assistance.

The next group consists of the nonparticipating plaintiffs, Alford and Cleckley.  These plaintiffs allege that the decision not to renew the project-based subsidy constituted discrimination because they sought to apply for the project-based subsidy.  They further allege that they and others will be excluded from Burbank at some time in the future, whether or not they have tenant-based subsidies.

We agree with the motion judge that these plaintiffs have failed to state a claim under G. L. c. 151B, §§ 4 (5) and (10).  It is not only the speculative and indefinite nature of the claims that is their death knell.  Simply put, the complaint contains no allegations that the defendants have discriminated against any tenant receiving Section 8 subsidies, or that the defendants have refused to consider the applications of prospective tenants because of such subsidies.  As to the allegation that the defendants will no longer accept the project-based subsidies, which these plaintiffs claim may be the basis of their claim of subsidy discrimination, those subsidies are appurtenant not to the tenant (or prospective tenant), but to the rental unit.[24]

The plaintiffs have therefore failed to allege facts “plausibly suggesting,” Iannacchino, 451 Mass. at 636, quoting Twombly, 550 U.S at 555, that the defendants’ decision violated G. L. c. 151B, §§ 4 (5) or (10).  The defendants did not discriminate against “a tenant receiving” a housing subsidy, but instead lawfully transitioned from one form of Section 8 subsidy to another, as is permitted under the Federal regulations.

b.  Discriminatory housing accommodation.  The plaintiffs take issue with the motion judge’s determination that the defendants’ decision not to renew their HAP contract is immune from a disparate impact challenge under the fair housing statutes.  They contend that precluding such a claim would be akin to reading an unwarranted exception for otherwise legal nonrenewal of a Section 8 HAP into the overriding discrimination proscriptions of the fair housing statutes.  We agree.

i.  Disparate impact claims under the FHA and the cognate Massachusetts fair housing statute.  Disparate impact occurs when a decision “disproportionately disadvantage[s]” members of a protected class.  See Lopez v. Commonwealth, 463 Mass. 696, 712 (2012).  See also Inclusive Communities, 135 S. Ct. at 2513, 2521.  There is no “single test” to demonstrate disparate impact.  Langlois v. Abington Hous. Auth., 207 F.3d 43, 50 (1st Cir. 2000).

We begin with the general framework for Federal housing discrimination claims pursuant to the FHA.  Claims under the FHA may be alleged under either disparate treatment or disparate impact theories.  See Inclusive Communities, 135 S. Ct. at 2518, 2524-2525 (extrapolating disparate impact theory under Title VIII from similar precedent, set by Griggs v. Duke Power Co., 401 U.S. 424, 431 [1971], construing Federal employment discrimination statute claims under Title VII).  However, while the Supreme Court has concluded that discrimination claims based on a disparate impact theory may be brought under the FHA, we have yet to determine whether such a fair housing claim could also be pleaded based on discriminatory impact under the Commonwealth’s antidiscrimination law.  We conclude that such a claim is cognizable.

In School Comm. of Braintree v. Massachusetts Comm’n Against Discrimination, 377 Mass. 424 (1979) (Braintree), we recognized that, like Title VII, the Massachusetts employment discrimination statute, G. L. c. 151B, § 4 (1), “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”  Id. at 429 n.10, quoting Griggs, supra.  We later expanded our disparate impact jurisprudence to claims under G. L. c. 151B, § 4A (interference claims).  See Lopez, 463 Mass. at 710-711.  Although we have not considered whether disparate impact claims apply to G. L. c. 151B, § 4, in its entirety, the Appeals Court has further broadened disparate impact application to other subsections of G. L. c. 151B.  See Porio v. Department of Revenue, 80 Mass. App. Ct. 57, 68-69 (2011) (reviewing disparate impact claim under § 4 [1C]).

Our decision to amplify our disparate impact analysis derives from the language of the statute and the purpose of our housing discrimination laws, which, like those preventing employment discrimination, seek to eradicate discrimination in all its forms, be they based on intent or effect.  “[A]ntidiscrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose.”  Inclusive Communities, 135 S. Ct. at 2518.  General Laws c. 151B, §§ 4 (6), (7) and (11), prohibit conduct that results in a “refus[al] to rent or lease or sell or negotiate for sale” on the basis of membership in a protected class.  This language indicates that it is not only the intent behind discriminatory housing actions that the Legislature sought to punish, but also the consequences of such actions.

Our conclusion is also tethered to the policy underlying the fair housing statutes.  See Inclusive Communities, supra at 2521 (“[r]ecognition of disparate-impact claims is consistent with the FHA’s central purpose”).  After all, it is a steadfast principle in the affordable housing context that “[c]onduct that has the necessary and foreseeable consequence of perpetuating segregation can be as deleterious as purposefully discriminatory conduct in frustrating the national commitment to replace the ghettos by truly integrated and balanced living patterns” (quotation and citation omitted).  Metropolitan Hous. Dev. Corp.  v. Village of Arlington Heights, 558 F.2d 1283, 1289 (7th Cir. 1977), cert. denied, 434 U.S. 1025 (1978).  Therefore, just as the Supreme Court deduced, based on precedent from Title VII, that a disparate impact theory of liability could appropriately be brought under Title VIII in the housing context, we too conclude from our employment discrimination precedent that such a theory of liability is cognizable under G. L. c. 151B, §§ 4 (6), (7), and (11).

ii.  Disparate impact claims under fair housing statutes where the defendant acted in accord with law.  Having concluded that disparate impact claims are generally cognizable under the fair housing statutes, we must determine whether they may arise in the context before us.  The defendants urge us to embrace a per se rule precluding disparate impact liability under the fair housing statutes where a property owner has acted in accord with statute, regulation, and contract, absent evidence of intentional discrimination.  We decline to adopt such a rule.

     Our analysis begins again with the policy behind the fair housing statutes, namely, to “provide[] a clear national policy against discrimination in housing.”  H. R. Rep. No. 100-711, 100th Cong., 2d Sess., 15 (1988).  See 42 U.S.C. § 3601 (“It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States”); G. L. c. 151B, § 9 (Commonwealth’s antidiscrimination statutes, including its fair housing statutes, “shall be construed liberally for the accomplishment of its purposes, and any law inconsistent with any provision of this chapter shall not apply”).  See also Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211 (1972) (FHA implements “policy that Congress considered to be of the highest priority”); Massachusetts Bay Transp. Auth. v. Boston Carmen’s Union, Local 589, Amalgamated Transit Union, 454 Mass. 19, 26 (2009) (antidiscrimination policy under G. L. c. 151B is “well defined and dominant” and “the overriding governmental policy proscribing various types of discrimination”); Dahill v. Police Dep’t of Boston, 434 Mass. 233, 241 (2001) (“We construe G. L. c. 151B, § 4, to . . . the fullest effect”).  The statute’s “broad and inclusive compass,” therefore, is accorded “generous construction” (quotations omitted).  Edmonds v. Oxford House, Inc., 514 U.S. 725, 731 (1995), quoting Trafficante, supra at 209, 212.

Our canons of statutory construction militate toward the same result.  The defendants argue that, where “a general statute and a specific statute cannot be reconciled, the general statute must yield to the specific statute” (citation omitted).  Hennessey, 403 Mass. at 651.  They also assert that we must give full effect and force to the legislative intent in managing the subsidy program, such that property owners would have some flexibility in choosing to eschew participation in the Section 8 subsidy program.  This would require a determination that the specific statutes (those allowing for nonrenewal of project-based HAPs) take precedence over general fair housing policies (against discrimination in housing).  The judge below agreed, determining that, although the general policy behind the fair housing statutes is to stamp out discrimination, Congress and the Legislature indicated a specific intent to manage the manner in which the Federal subsidy programs should be operated.

But support for such an interpretation is not so clear cut.  Although a fundamental precondition to satisfying the goals of the fair housing statutes is incentivizing private owners, through federally subsidized loans and tax breaks, to offer affordable housing,[25] it is also a goal to ensure that such programs and the private owners they subsidize do not act in a discriminatory manner with regard to such housing.  It is a balance of those interests that Congress and the Legislature sought to strike with the fair housing statutes and regulations.

Adopting a bright-line rule prohibiting disparate impact liability where a property owner follows the project-based Section 8 statutory scheme, absent evidence of intentional discrimination, would run counter to those policies preventing housing discrimination in all forms that were delineated by both Congress and the Legislature.  We will not shoehorn into the fair housing statutes what HUD would describe as an “additional exemption[] [that] would be contrary to Congressional intent.”  78 Fed. Reg. 11460, 11477 (2013).  See id. at 11460; Inclusive Communities, 135 S. Ct. at 2514 (citing HUD regulations favorably).  See also DiLiddo, 450 Mass. at 77 (declining to read exception into G. L. c. 151B, § 4 [10], as contrary to “the statute’s clear terms”).  Therefore, although the defendants never committed a breach of their Section 8 contract, followed the Federal and State requirements in deciding not to renew the project-based subsidies, and subsequently accepted the enhanced vouchers, this alone does not end the inquiry.  Instead, our disparate impact analysis will consider whether such actions were sufficient to insulate protected classes from discriminatory negative impacts the defendants might have caused.  Graoch Assocs. No. 33, L.P. v. Louisville/Jefferson County Metro Human Relations Comm’n, 508 F.3d 366, 377 (6th Cir. 2007) (Graoch) (“The mere fact that a landlord often can withdraw from Section 8 without violating the terms of Section 8 or the FHA does not mean that withdrawal from Section 8 never can constitute a violation of the FHA”); Brown, 400 Mass. at 830 (“It does not follow that, merely because Congress provided for voluntary participation, the States are precluded from mandating participation absent some valid nondiscriminatory reason for not participating”).

We therefore choose not to adopt the motion judge’s interpretation.  Although, “[i]n the absence of explicit legislative commands to the contrary, we construe statutes to harmonize and not to undercut each other,” School Comm. of Newton v. Newton Sch. Custodians Ass’n, Local 454, 438 Mass. 739, 751 (2003), we perceive no contrary commands in the fair housing statutes, nor a specific intent supplied to trump the overarching general principle.  Indeed, the statutes are harmonious:  Congress created a comprehensive incentive program to encourage property owners to continue to offer Section 8 subsidies in order to increase affordable housing.  See 42 U.S.C. § 1437f.  Because it became obvious that those property owners would inevitably opt to prepay their mortgages — or eventually not renew their Section 8 contract — Congress, and then the Legislature, through G. L. c. 40T,[26] again stepped in to ensure that the previously contracted property owners would maintain an efficient, fair, and nondiscriminatory post-HAP rental regime.  In so doing, a notice requirement was instituted, and Congress obligated the owners to accept the mobile or enhanced vouchers.  See 42 U.S.C. § 1437f; G. L. c. 40T, § 2 (b).

The statutes and regulations creating Section 8 contracts, and those regarding ending such contracts, are therefore harmonious in their goals:  incentivizing efforts to combat segregation, and protecting residents living in affordable housing while maintaining economical mechanisms by which property owners can effectuate such a purpose.  Because the defendants in this case have benefited — starting with the federally subsidized loans to undertake substantial renovations on Burbank Apartments in the early 1970s — from the incentives afforded by the Section 8 project-based subsidies, it is incumbent on them, should they choose to eschew such benefits, to do so in a manner that is in conformity with the legislative aspirations based on which they initially entered into the Section 8 contract.  This is evidenced by the fact that Congress has provided a program of enhanced vouchers, under which property owners like the defendants must act if they do not renew their HAP.  See 12 U.S.C. § 4113(d).  This Federal requirement underscores that, although Section 8 participation is initially voluntary, the policy ramifications that attend such participation endure beyond the term of the contract.  See Graoch, 508 F.3d at 376-377 (“[T]o say that Section 8 participation is ‘voluntary’ is only to say that a landlord does not break the law by declining to participate. . . .  [A]lmost every action that could create disparate-impact liability under the FHA is voluntary”).[27]

This result is in accord with fair housing precedent, as violating a regulation or breaking the law has never been a prerequisite to disparate impact liability.  See, e.g., Graoch, supra at 376 n.5, 377 (court “reject[ed] a categorical rule against disparate-impact challenges to withdrawals” of private property owners from Section 8 voucher program, even though such withdrawal from voluntary program was in accordance with statute and regulation:  “[a]lthough Congress created the Section 8 program six years after passing the FHA, . . . it did not include language indicating that Section 8 landlords should be exempt from any FHA requirements”).  We therefore do not agree with the judgment below that the defendants’ compliance with Federal and State regulations and statutes is a per se bar to disparate impact liability.  Instead, we conclude that the general and the specific interests of the fair housing statutes are not mutually exclusive, and a disparate impact claim is cognizable even if a defendant who is a private owner adheres to statutory, regulatory, and contractual obligations.

iii.  Pleading requirements.  Having concluded that disparate impact claims are cognizable under G. L. c. 151B, § 4 (6), (7), and (11), as they are under the FHA, we must now explicate pleading requirements for such claims.  In so doing, we will follow the burden-shifting framework laid out by HUD and adopted by the Supreme Court in Inclusive Communities, 135 S. Ct. at 2424-2425.[28]  See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984) (court defers to HUD’s implementing regulations as long as they are “permissible construction of the statute”).  See also Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11460, 11461 (2013); Inclusive Communities, 135 S. Ct. at 2514-2516.  The first step in the burden-shifting analysis is germane to the present case.  To establish a prima facie case for disparate impact housing discrimination under the FHA, and therefore survive a motion to dismiss, the plaintiffs bear the burden of alleging facts showing that the “challenged practice caused or predictably will cause a discriminatory effect.”  Inclusive Communities, supra at 2514, quoting 24 C.F.R. § 100.500 (c) (1) (2014).

The Supreme Court emphasized the need to balance the interests of both property owners and protected classes by requiring a rigorous examination on the merits at the pleading stage.  See Inclusive Communities, 135 S. Ct. at 2523.  To avoid the risk of “interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision,” id. at 2524, courts must “examine with care whether plaintiff[s] ha[ve] made out a prima facie case of disparate impact.”  Id. at 2523.  Fair housing claims based on the theory of disparate impact should therefore be limited to “avoid the serious constitutional questions that might arise.”  Id. at 2522.  Such a showing, for instance, may not be “imposed based solely on a showing of a statistical disparity.”  Id.  More particularly, the plaintiffs cannot satisfy this burden “[i]f a statistical discrepancy is caused by factors other than the defendant’s policy.”  Id. at 2514.  Instead, the plaintiffs must meet a “robust causality requirement,” id. at 2523, by “point[ing] to a defendant’s policy or policies causing that [statistical] disparity.”  Id.  A practice or policy is “contrary to the disparate-impact requirement [if it creates] ‘artificial, arbitrary, and unnecessary barriers’” that create discriminatory effects or perpetuate segregation.   Id. at 2524, quoting Griggs, 401 U.S. at 431.[29]

iv.  Application to the present case.  The fair housing statutes make it unlawful to “make unavailable or deny[] a dwelling to any person because of race, color, religion, sex, familial status, or national origin,” and bar discrimination “against any person in the terms, conditions, or privileges of . . . rental of a dwelling . . . because of race, color, religion, sex, familial status, or national origin.”  42 U.S.C. §§ 3604(a)-(b).  See G. L. c. 151B, § 4 (6), (7), and (11).  Based on the Supreme Court’s pleading requirements, the plaintiffs must meet a “robust causality requirement” in order to show that a policy by the defendants created a disproportionately negative statistical discrepancy in available housing for members of a protected class.  See Inclusive Communities, 135 S. Ct. at 2523; 42 U.S.C. §§ 3604(a)-(b); G. L. c. 151B, § 4 (6), (7), and (11).  The plaintiffs have failed to satisfy such pleading requirements.

The plaintiffs’ housing discrimination claims are applied to two classes of individuals, the current tenants (with project-based subsidies before the HAP lapsed) and the prospective tenants (whether or not they are on the waiting list).  The claim for the current tenants boils down to two facts:  (1) the defendants’ decision not to renew their project-based Section 8 subsidy contract has denied and will deny or withhold housing from current low income tenants; (2) such tenants are disproportionately members of protected classes.

The plaintiffs have not sufficiently pleaded disparate impact discrimination as to the existing tenants at Burbank.  Indeed, the amended complaint does not set forth any harm to plausibly suggest an entitlement to relief.  See Flagg, 466 Mass. at 26-27.  All of the tenants previously enjoying the Section 8 project-based subsidies were deemed eligible for enhanced vouchers, which not only allow them to remain in their apartments at Burbank, but also to choose to live at another property while still receiving Section 8 benefits.  The plaintiffs have not pointed to anything other than speculative prospective harm to these tenants.  See part 2.a, supra.  The suggestion that at some point in the future rents might increase beyond the level covered by the enhanced vouchers, or, because enhanced vouchers are subject to rescreening, some tenants might be found ineligible at some point in the future, is inadequate to state a claim under Mass. R. Civ. P. 12 (b) (6).

The claim that the defendants’ decision disproportionately disadvantaged the prospective tenants is also tenuous.  This claim likewise is premised on two facts:  (1) the prospective tenants on the waiting list are disproportionately members of protected classes; (2) without the benefit of project-based subsidies, the prospective tenants will almost invariably not be able to afford to live in the sixty-seven project-based subsidized units in which they might at some point in time have had the chance to live absent the defendants’ decision.  The claim presents two problems.  First, it is speculative and indefinite.  There is no guarantee that any of the individuals on the waiting list would have had the opportunity to take advantage of the Section 8 housing at Burbank even if the project-based HAP was renewed; prospective tenants’ eligibility to move into the sixty-seven project-based units does not necessarily mean they would actually, at some point in the future, have such an opportunity.  Indeed, the complaint offers no facts, beyond bare “labels and conclusions,” Iannacchino, 451 Mass. at 636, quoting Twombly, 550 U.S. at 555, that, even if those sixty-seven units did become available in the future, the prospective tenants who are members of a protected class would have the opportunity to move in.  Second, and more importantly, the allegations do not meet the “robust causality requirement” in showing that the defendants’ actions resulted in a statistical disparity, thereby supporting a claim that the defendants disproportionately disadvantaged members of a protected class.  See Inclusive Communities, 135 S. Ct. at 2523.  In the present case, it is apparent that, as of April 1, 2011, when the project-based subsidy ended, more tenants inhabiting Burbank units were eligible for Section 8 subsidies (129) than ever before (sixty-seven when the project-based subsidies ended).  There were, then, more low and middle income tenants (who, based on the plaintiffs’ statistics, are disproportionately members of protected classes) eligible for federally subsidized Section 8 housing (whether the enhanced vouchers are as beneficial as the project-based subsidies or not) because of the defendants’ decision.  The plaintiffs therefore have not shown that the defendant’s decision not to renew their HAP has resulted in a disproportionately negative impact on members of protected classes, and, in any event, they cannot meet the robust causality requirement necessary to satisfy a prima facie disparate impact claim.

The effect of the defendants’ decision not to renew the project-based subsidies is therefore distinguishable from the “heartland” cases of disparate impact liability, id. at 2522, in which the defendant’s actions unfairly function to “exclude [members of protected classes] from certain neighborhoods without any sufficient justification,” id., by, say, demolishing a development and making it wholly unavailable.  See Charleston Hous. Auth. v. United States Dep’t of Agric., 419 F.3d 729, 733-734 (8th Cir. 2005) (owner’s decision to discontinue Section 8 subsidies, prepay mortgage, and demolish building would have been illegal as resulting in disparate impact on existing and prospective African-American tenants).  See also Huntington v. Huntington Branch, Nat’l Assoc. for the Advancement of Colored People, 488 U.S. 15, 16-18 (1988) (overturning zoning law restricting construction of multifamily housing projects to part of town where fifty-two per cent of residents were people of color in town that was ninety-eight per cent Caucasian and four per cent African-American).  It is likewise different from other cases in which the defendant’s actions did or would alone have caused a statistical disparity based on membership in a protected class.  See, e.g., Greater New Orleans Fair Hous. Action Ctr. v. St. Bernard Parish, 641 F. Supp. 2d 563, 569, 577-578 (E.D. La. 2009) (invalidating ordinance allowing only “blood relative[s]” to rent housing units in section of city where residents were “88.3% Caucasian and 7.6% African-American”).

We are not presented here with a case in which the property owner’s actions exacerbated the differences between the project-based and tenant-based subsidies.  The complaint does not, for instance, indicate that the defendants raised the rent for the Burbank units to such a degree that the PHA refused to pay them as unreasonable.  See 24 C.F.R. § 982.507; 42 U.S.C. § 1437f(o)(10)(B) (PHAs allowed to refuse to pay unreasonable rents).  Had the defendants done so, thereby causing a disproportionate disadvantage for tenants of protected classes who had no other means to supplement the rental costs, it is possible that such actions would have resulted in a complaint that satisfied the “robust causality requirement” necessary to plead a disparate impact liability claim.  Here, however, there is no evidence to show that the tenants occupying the sixty-seven units previously subsidized by project-based Section 8 subsidies are negatively affected by the currently offered Section 8 enhanced vouchers, nor is there any indication that the defendants’ decision will lead to a disproportionate disadvantage to members of protected classes living in Burbank, specifically, and the Fenway neighborhood, generally (whether they sought to rent a project-based unit at Burbank or not).

We do not discern any alleged action by the defendants that justifies the imposition of disparate impact liability under the circumstances, as the plaintiffs have not sufficiently pleaded that the defendants’ decision will cause any discriminatory effect.  See Inclusive Communities, 135 S. Ct. at 2514, quoting 24 C.F.R. § 100.500(c)(1) (2014).  As a consequence, the plaintiffs have failed sufficiently to plead a prima facie case of disparate impact discrimination under 42 U.S.C. §§ 3604(a) and (b), as well as under G. L. c. 151B, § 4 (6), (7), and (11).

3.  Conclusion.  For the foregoing reasons, the allowance of the defendants’ motion to dismiss both counts of the plaintiffs’ amended complaint is affirmed.

So ordered.

Full-text Opinions

NOTICE: All slip opinions and orders are subject to formal
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error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
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1030; SJCReporter@sjc.state.ma.us
15-P-166 Appeals Court
EILEEN M. HEYN, personal representative,1 vs. DIRECTOR OF THE
OFFICE OF MEDICAID.
No. 15-P-166.
Worcester. February 5, 2016. – April 15, 2016.
Present: Green, Hanlon, & Henry, JJ.
Medicaid. Trust, Self-settled trust, Irrevocable trust,
Distribution, Allocation of payments between principal and
income, Power of appointment. Annuity.
Civil action commenced in the Superior Court Department on
December 12, 2013.
The case was heard by William F. Sullivan, J., on a motion
for judgment on the pleadings.
Patrick Tinsley for the plaintiff.
Daniel J. Hammond, Assistant Attorney General, for the
defendant.
Patricia Keane Martin, Robert P. Ford, Kathryn E. Szewczyk,
& Don J.J. Cordell, for National Academy of Elder Law Attorneys
(Massachusetts Chapter), amicus curiae, submitted a brief.
GREEN, J. We are called upon yet again to review a
determination that assets within a self-settled irrevocable
1 Of the estate of Everlenna Roche.
2
inter vivos trust should be treated as available to the trust
grantor for payment of nursing home expenses (and,
correspondingly, render the grantor ineligible for Medicaid
benefits). We conclude that a hearing officer of the MassHealth
board of hearings erroneously concluded that the trust at issue
permitted its trustee to distribute proceeds from the sale of
trust assets to the grantor in certain circumstances.
Consequently, we reverse the judgment of the Superior Court
affirming MassHealth’s termination of benefits to the
plaintiff’s decedent.2
Background. From November 4, 2011, until her death on
August 25, 2013, the plaintiff’s decedent, Everlenna Roche,
resided at a skilled nursing facility in Westborough.
Approximately eight and one-half years earlier, Roche had
established the Everlenna R. Roche Irrevocable Trust (trust),
and transferred to it title to her home at 10 Baker Way,
Westborough, retaining a life estate.3 Upon moving into the
2 We acknowledge the amicus brief submitted by the National
Academy of Elder Law Attorneys, Inc. (Massachusetts chapter).
3 The defendant makes no argument that the life estate
retained by Roche might itself have a value that could affect
her eligibility for benefits, stating in its brief that it is “a
correct statement of the law under Cohen [v. Commissioner of the
Div. of Med. Assistance, 423 Mass. 399 (1996), cert. denied sub
nom. Kokoska, by Kokoska v. Bullen, 519 U.S. 1057 (1997),] and
its progeny” that retention of a life estate does not render an
individual ineligible for benefits. We do not consider the
question.
3
skilled nursing facility, Roche applied for MassHealth benefits
to pay for the cost of her care, and her application was
initially approved. On March 27, 2013, MassHealth notified
Roche that her eligibility for MassHealth benefits was
terminated, based on its conclusion that her former residence,
held by the trust, should be treated as a countable asset with a
value in excess of the maximum asset value permissible to retain
eligibility.4 Roche timely appealed the termination of her
benefits, and a hearing was held on June 20, 2013. On October
8, 2013, following her intervening death in August of that year,
a decision on her appeal issued, upholding the termination of
benefits. In the decision, the hearing officer reasoned that
the trust instrument authorized the trustee to sell trust
assets, and to invest the proceeds of any such sale in other
forms of investment, including an annuity.5 Since the trust also
authorized the trustee to make distributions of income to Roche,
the hearing officer concluded that annuity payments resulting
from any annuity purchased by the trustee with trust principal
4 According to the notice, the value of the property was
$ 214,423, based on the then most recent assessment for the
property. Under 130 Code Mass. Regs. § 520.016(A) (2010), if
“countable assets” available to an institutionalized single
applicant exceed $ 2,000, the applicant is ineligible for
Medicaid benefits. The plaintiff does not dispute on appeal the
value assigned to the property in the MassHealth notice.
5 We reserve detailed discussion of the trust provisions for
our discussion below.
4
could be distributed from the trust as income, and thereby be
made available to provide support to Roche. After denial of the
plaintiff’s motion for rehearing, the plaintiff appealed the
decision to the Superior Court pursuant to G. L. c. 30A, § 14,
where a judge of that court denied the plaintiff’s motion for
judgment on the pleadings and affirmed the administrative
decision. This appeal followed.
Discussion. As intimated in our introduction, the effect
of the provisions of self-settled irrevocable inter vivos trusts
on eligibility for Medicaid benefits has been the subject of
considerable discussion. See, e.g., Cohen v. Commissioner of
the Div. of Med. Assistance, 423 Mass. 399, 401-407 (1996),
cert. denied sub nom. Kokoska, by Kokoska v. Bullen, 519 U.S.
1057 (1997). See also Lebow v. Commissioner of the Div. of Med.
Assistance, 433 Mass. 171, 172-173 (2001); Guerriero v.
Commissioner of the Div. of Med. Assistance, 433 Mass. 628, 629-
632 (2001); Doherty v. Director of the Office of Medicaid, 74
Mass. App. Ct. 439, 440-443 (2009). The legislative history and
case law concerning the treatment of self-settled trusts reflect
awareness of the possibility that comparatively affluent
individuals might avail themselves of such trusts as an estate
planning tool, in order to qualify for benefits. See Cohen,
supra at 403-404. The resulting law reflects a compromise, with
provisions for so-called “look back” periods for transfers of
5
assets preceding an application for benefits, see 42 U.S.C.
§ 1396p(c)(1)(B)(i) (2012),6 and strict requirements governing
the extent to which assets must be made unavailable to the
settlor in order to avoid being treated as “countable assets”
for purposes of Medicaid eligibility. Nonetheless, it is
settled that, properly structured, such trusts may be used to
place assets beyond the settlor’s reach and without adverse
effect on the settlor’s Medicaid eligibility. See, e.g.,
Guerriero, supra at 633. See also Doherty, supra at 442-443.
Like the trust at issue in Doherty, supra at 440, and
unlike the trusts in Cohen, supra at 408 n.15, Lebow, supra at
172 n.2, and Guerriero, supra at 631, the trust in the present
case is governed by the provisions of the statutory and
regulatory framework in effect after 1993, following amendments
to 42 U.S.C. § 1396p(d)(3)(B). Under the post-1993 version of
the statute, for purposes of determining eligibility for
Medicaid benefits, “countable assets” include any portion of the
trust principal that could “under any circumstances” be paid “to
or for [the] benefit [of]” Roche.7 Doherty, supra. Such
6 Under that section, a thirty-six month “look back” period
applies to transfers of assets prior to any application for
benefits, and a longer, sixty-month, “look-back” period applies
to assets placed into trust. See Guerriero, supra at 631.
7 The “any circumstances” test replaced the former
“peppercorn of discretion” test, which previously considered
whether the trustee of an irrevocable trust could, in the
6
circumstances need not have occurred, or even be imminent, in
order for the principal to be treated as “countable assets”; it
is enough that the amount could be made available to Roche under
any circumstances. See Lebow, supra at 177-178.
In assessing whether the trust would allow distribution of
principal to Roche “under any circumstances,” we construe its
provisions in light of the trust instrument as a whole. See
Doherty, supra at 441. With that principle in mind, we examine
the provisions of the trust that bear on the question. Article
SECOND mandates quarterly distribution of trust income to the
grantor for the remainder of her life. It also allows the
trustee to distribute part or all of the trust principal to
persons other than the grantor who are entitled to receive trust
assets after the death of the grantor. Finally, it contains a
reservation to the grantor of the power during her lifetime to
“appoint any part or all of the principal or income of th[e
t]rust to any one or more of the [g]rantor’s issue, free of
trust.”8
exercise of discretion, distribute principal to the person
seeking benefits, regardless whether such discretion was
exercised in fact to make a distribution. See Cohen, supra at
413 & n.20. Though the motion judge framed his analysis by
reference to the “peppercorn of discretion” test, the difference
is immaterial to the result in this case.
8 Article SECOND reads as follows:
7
Separately, Art. EIGHTH grants broad authority to the
trustee to deal with trust assets, including the rights to sell
assets and invest the proceeds of such a sale in another form of
asset, and “to determine, in accordance with reasonable
accounting principles and practice and state law, what shall
belong and be chargeable to principal and what shall belong and
be chargeable to income.”9 Finally, Art. NINTH includes a
“SECOND: A. The Trustee shall pay to the Grantor all of
the net income of the Trust, quarterly or more often, for
the remainder of the Grantor’s life.
“B. During the life of the Grantor the Trustee may
distribute part or all of the principal of this Trust to
any persons (other than the Grantor) otherwise entitled to
the assets of this Trust after the death of the Grantor.
“C. The Grantor reserves the power, exercisable at
any time or from time to time, by written instrument during
the Grantor’s lifetime or by the Grantor’s will or any
codicil thereto, to appoint any part or all of the
principal or income of this Trust to any one or more of the
Grantor’s issue, free of trust of [sic] otherwise,
referring specifically to this special power of appointment
in such written instrument, will, and/or codicil.”
9 Pertinent provisions of Art. EIGHTH include the following:
“EIGHTH: In addition to the other powers given to the
Trustee in this Trust Agreement or by law, the Trustee
shall have the following powers in each case to be
exercised in his, her or its sole discretion, upon such
terms as he, she or it deems advisable and without leave of
any court:
“A. to make and retain any investment, without notice
to or consent of any interested party, including, without
limiting the generality of the foregoing, the purchase,
sale or writing of put or call options relating to any
security or index, the purchase or sale of commodities (or
8
provision entitling the grantor to require the trustee to
“transfer any trust assets in exchange for assets of equivalent
value,” and provides that such power would be “exercisable [by
the grantor] solely in a nonfiduciary capacity,” free from
restriction by any fiduciary duty imposed on the trustee.10
options thereon), the purchase or sale of domestic and
foreign currencies and the purchase and sale of marketable
and non-marketable securities including interests in
limited partnerships of all types, although any of the
investments so made or retained may be of such kind or in
such amount or proportion that they would not otherwise be
proper;
. . .
“O. to determine, in accordance with reasonable
accounting principles and practice and state law, what
shall belong and be chargeable to principal and what shall
belong and be chargeable to income, and without limitation
to make such determination in regard to stock and cash
dividends, rights and other receipts in respect to the
ownership of stock, to purchase or retain stock that pays
dividends in whole or in part otherwise than in cash and to
treat such dividends in whole or in part as principal or
income and to amortize or to refrain from amortizing bond
premiums[.]”
10 Article NINTH is as follows:
“NINTH: The Grantor intends that this trust be a grantor
trust for federal income tax purposes and all provisions of
this trust shall be construed so as to effectuate this
intent.
“A. Upon the demand by EVERLENNA R. ROCHE, the
Trustee shall transfer any trust assets in exchange for
assets of equivalent value. This power is exercisable by
EVERLENNA R. ROCHE solely in a nonfiduciary capacity, and
no fiduciary duty imposed upon the Trustee of any other
person may be asserted as a defense to the exercise of the
powers granted under this Article.
9
As we have observed, the hearing officer concluded that the
trust authorized distributions of principal to Roche under
identifiable circumstances. In particular, pertinent to this
appeal the hearing officer suggested that the trustee could sell
the property, invest the proceeds in an annuity, and then treat
the resulting annuity payments as income eligible for
distribution. The analysis misapprehends the nature of annuity
payments. Annuity payments are comprised of distinct
constituent parts. One part is a return of a portion of the
principal investment in the annuity itself; the other part is a
portion of the investment income earned on the principal
investment. Following each payment, the remainder of the
principal investment remains in the annuity contract, accruing
income. Federal Medicaid law recognizes these distinguishable
parts, as does the United States Internal Revenue Code. See,
e.g., 42 U.S.C. § 1396p(e)(2)(B) (2012) (distinguishing between
the amount of an annuity’s “income or principal” being
withdrawn); 26 U.S.C. § 72(a) & (b) (2012). Out of each annuity
payment, only the investment income portion would be available
“B. EVERLENNA R. ROCHE may waive this power by a
writing delivered to a Trustee, and such waiver shall bind
EVERLENNA R. ROCHE, the Trustee, and all other persons.”
10
for distribution to the grantor from the trust;11 that portion of
each payment representing a return of capital would be required
by the trust instrument to be retained in the trust. The income
portion available for distribution in such circumstances would
be no different in character than interest earned on a
certificate of deposit, dividends from stocks purchased and held
by the trust, or other income earned on any trust assets. In
all events, the trust principal is preserved in the trust, and
is not available for distribution to the grantor under the
governing provisions of the trust.12
The foregoing analysis is unaffected by the authority of
the trustee, provided by Art. EIGHTH O., and noted by the motion
judge, to determine the allocation as between principal and
income of any proceeds of trust assets, because the trustee’s
authority in that respect is expressly constrained by
“reasonable accounting principles and practice and state law”
(emphasis added). See note 9, supra. In particular, the
allocation of annuity payments as between principal and income
is governed by G. L. c. 203D, § 18(a), which creates a statutory
11 The effect of income distributions on Medicaid
eligibility is considered as and when the income is available
for distribution, and is not at issue in this case.
12 As noted above, see note 8, supra, principal could be
distributed to beneficiaries other than the grantor. However,
any such distribution would not be available to the grantor, and
therefore would not affect the grantor’s Medicaid eligibility.
11
presumption that any amount received by the trust, not expressly
characterized as dividend or interest income, shall be allocated
to principal. See also Restatement (Third) of Trusts § 110
(2011).
The hearing officer articulated two alternative grounds on
which to rest a conclusion that the trust corpus could be made
available for distribution to the grantor. First, he noted that
Art. SECOND C. allows the grantor to appoint all or any part of
the trust principal to any one or more of the grantor’s issue,
free of trust. See note 8, supra. In the view of the hearing
officer, that would give rise to the possibility that the
grantor could direct conveyance of the trust property to one of
her children, who could in turn convey it to her. Second, the
hearing officer found that Art. NINTH A. allows Roche to compel
the trustee to return her former residence to her in exchange
for assets of equivalent value. See note 10, supra. The motion
judge did not rely on either ground in his order affirming the
hearing officer’s decision, and the defendant does not rely on
either rationale to defend the judgment in this appeal. In any
event, we offer the following brief comment on both arguments.
The hearing officer cited no case in which either rationale was
applied to support a conclusion that assets held in an
irrevocable trust should be treated as countable assets for
purposes of the trust grantor’s Medicaid eligibility, and we are
12
aware of none. As to the first rationale, a provision making
trust principal available to persons other than the grantor does
not by its nature make it available to the grantor, any more
than if the grantor had gifted the same property to such a
person when she created the trust, rather than placing it in
trust. Indeed, the continuing authority of the trustee in
Guerriero to distribute trust principal to beneficiaries other
than Guerriero following Guerriero’s irrevocable waiver of
rights to receive principal did not derogate from the court’s
conclusion that the trust principal should not be treated as
countable assets for purposes of determining Guerriero’s
eligibility for Medicaid benefits. See 433 Mass. at 635. More
generally, for purposes of computing countable assets, Medicaid
does not consider assets held by other family members who might,
by reason of love but without legal obligation, voluntarily
contribute monies toward the grantor’s support.13
Even less persuasive is the hearing officer’s other
rationale, which rested on the grantor’s reserved power to
direct a transfer of assets out of trust in exchange for other
assets of equivalent value. Such an exchange would be
equivalent to a sale of trust assets, with the grantor in the
13 Of course, any voluntary transfer of monies or other
assets by third parties to Roche, whether from distributions of
trust assets or from other sources, would count toward Roche’s
Medicaid eligibility as and when she received them.
13
role of purchaser and the proceeds of the sale nonetheless
retained by the trust as principal. Such a transfer would not
effect any distribution or diminution of trust principal, any
more than a sale of trust assets to unrelated third parties,
followed by a reinvestment of sale proceeds by the trust. As a
practical matter, of course, any assets held by the grantor and
available to exchange for the assets transferred out of trust
would themselves be treated as countable assets (if they
existed).
Contrary to the conclusion of the hearing officer, pursuant
to the terms of the trust there are no circumstances under which
the trustee may distribute trust principal to Roche. The case
is in that respect in contrast to Doherty, supra, in which Art.
XXII of the trust expressly authorized the trustee “in its sole
discretion” and notwithstanding “anything contained in this
Trust Agreement” to the contrary, to “pay over and distribute
the entire principal of [the] Trust fund to the beneficiaries
thereof [including the Medicaid applicant], free of all trusts.”
74 Mass. App. Ct. at 441.
Conclusion. The judgment of the Superior Court is reversed
and a new judgment shall enter reversing the decision of the
hearing officer.
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-11885

MARIA A. KITRAS, trustee,[1] & others[2]  vs.  TOWN OF AQUINNAH & others.[3]

Suffolk.     December 8, 2015. – April 19, 2016.

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

Easement.  Necessity.  Real Property, Easement.  Law of the Case.

Civil action commenced in the Land Court Department on May 20, 1997.

After review by the Appeals Court, 64 Mass. App. Ct. 285 (2005), the case was heard by Charles W. Trombly, Jr., J.

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

Jennifer S.D. Roberts for Vineyard Conservation Society, Inc.

Diane C. Tillotson for Martha’s Vineyard Land Bank.

Ronald H. Rappaport for town of Aquinnah.

Wendy H. Sibbison for Maria A. Kitras & another.

Leslie Ann Morse for Mark D. Harding & others.

Jennifer H. Flynn, Assistant Attorney General, for the Commonwealth, was present but did not argue.

The following submitted briefs for amici curiae:

Lawrence H. Mirel, of the District of Columbia, for Aquinnah/Gay Head Community Association.

Andrew H. Cohn, Felicia H. Ellsworth, & Claire M. Specht for Real Estate Bar Association for Massachusetts, Inc., & another.

Nicole Friederichs, Lorie Graham, & Jeffrey Pokorak for Wampanoag Tribe of Gay Head (Aquinnah).

Michael Pill, pro se.

SPINA, J.  In this case, we are asked to determine whether easements by necessity were created as a result of an 1878 partition of Native American common land in the town of Gay Head (now known as Aquinnah).[4]  Gay Head is located on the western coast of Martha’s Vineyard, connected to the rest of the island by an isthmus.  At the time of the 1878 partition, Gay Head was inhabited solely by members of the Wampanoag Tribe of Gay Head (Tribe).[5]  When two commissioners appointed by the probate court pursuant to statute partitioned the common land into hundreds of lots to be held in severalty[6] by members of the Tribe, they did not include express easements providing rights of access, leaving the lots landlocked.  The plaintiffs are owners of several lots created by this partition and are seeking, over one hundred years later, easements by necessity over the lots of the defendants.  We conclude that the defendants presented sufficient evidence to rebut the presumption that the commissioners intended to include rights of access and, therefore, no easements by necessity exist.[7]

1.  Procedural history.  The plaintiffs initiated this action in 1997 by filing a complaint for declaratory judgment.  In June, 2001, a Land Court judge allowed the defendants’ motions to dismiss, concluding that the United States was an indispensable party because any easement by necessity found would burden the tribal lands held in trust by the United States.  The plaintiffs appealed.  In 2005, the Appeals Court decided that before addressing the issue whether the United States was an indispensable party, it first had to decide whether easements by necessity could be implied for all or some of the lots.  Kitras v. Aquinnah, 64 Mass. App. Ct. 285, 291 (2005) (Kitras I).  The court concluded that lots numbered 189 and above were created by the partition of the common land and, thus, had the requisite unity of title to establish an easement by necessity.  Id. at 293-294.  Lots 189 and below were deemed held in severalty by members of the Tribe, which foreclosed the possibility of an easement by necessity because there was no unity of title as to those lots.[8]  Id. at 292.  The Appeals Court concluded that the United States was not an indispensable party because the lands in question were subject to a 1983 settlement agreement which provided that any land owned by the Wampanoag Tribal Council of Gay Head, Inc., a federally recognized Native American tribe, in the town of Aquinnah or in the Commonwealth, would be subject to the civil jurisdiction of the Commonwealth.  See id. at 297.  See also Building Inspector & Zoning Officer of Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp., 443 Mass. 1, 3, 14 (2004).  The Appeals Court reasoned that because the Tribe had waived its sovereign immunity as to these lands in the 1983 settlement agreement, the need to join the United States as a necessary party had been eliminated.  Kitras I, supra at 298.  Ultimately, the Appeals Court reversed and remanded the case to the Land Court to determine whether there was an intent to create easements affecting lots 189 and above and, if so, the scope of such easements.  Id. at 301.

On remand, a Land Court judge bifurcated the trial, addressing first whether rights of access were intended at the time of the partition in 1878, creating easements by necessity.  If so, then the judge would decide the location and proper routes of such easements.  The parties each submitted documents and their respective objections.  The judge ruled that the parties’ focus on lot 178 was not relevant because the Appeals Court had concluded that only lots 189 and above have the required unity of title for an easement by necessity.  The judge decided the case on documentary evidence submitted by the parties, without testimony.  The judge concluded that easements by necessity did not exist because there was sufficient evidence to rebut the presumed intent of the grantor commissioners to create access easements.  The plaintiffs appealed.

A divided panel of the Appeals Court reversed and remanded the case to the Land Court to determine the location of the easements by necessity.  Kitras v. Aquinnah, 87 Mass. App. Ct. 10, 18 (2015) (Kitras II).  We granted the defendants’ applications for further appellate review.[9]  The plaintiffs argue (1) that there was a presumed intent that the grantees had legal access to their lots and the defendants did not present sufficient evidence to rebut the presumption; and (2) that lot 178, like the plaintiffs’ other lots, is entitled to an easement by necessity.  The defendants argue that the trial judge (1) properly decided that no easements by necessity were created as a result of the 1878 partition; and (2) properly declined to reconsider whether lot 178 was included in the partition of the common lands.  We affirm the judgment of the trial court.

2.  Facts.  This case presents a unique set of facts in which we must examine a large-scale partition of Native American common land that occurred over one hundred years ago and ascertain the intent of the parties.  The majority of the facts arise from several reports written by commissioners appointed by the probate court pursuant to statute who were ordered to visit and describe the condition and circumstances of the various Native American tribes located in Massachusetts.  For much of the Nineteenth Century, a guardianship system managed the Native American tribes.[10]  St. 1828, c. 114, § 2.  Under this system, Native Americans were designated “involuntary wards of the State” where they could not sue or be sued, enter into legally binding contracts, or sell land to people outside of their own tribe.  Report to the Governor and Council, 1862 House Doc. No. 215, at 39.  See Report of the Commissioners, 1849 House Doc. No. 46, at 20; 2 C.E. Banks, The History of Martha’s Vineyard 14 (1966) (Banks); St. 1828, c. 114.  In the mid-Nineteenth Century, the Legislature began to depart from a paternalistic system of governance and move toward granting Native Americans full citizenship.  Report to the Governor and Council, 1862 House Doc. No. 215, at 7.  Over the years, the Legislature appointed commissioners and committees to visit the Native American tribes and assess the tribes’ condition, their way of life, and whether citizenship would be in their best interest.  Id. at 6-7.

In 1862, the Legislature established the district of Gay Head.  St. 1862, c. 184, §§ 4, 5.  Before the severance at issue in this case, Gay Head consisted of about 2,400 acres, of which about 450 acres were held in severalty and the remainder was held by the Tribe in common.  Report of the Committee of the Legislature of 1869 on the Condition of the Gay Head Indians, 1870 Senate Doc. No. 14, at 4 (Report of the Committee).  At that time the prevailing custom of the Tribe admitted “that any native could, at any time, appropriate to his own use such portion of the unimproved common land, as he wished, and, as soon as he enclosed it, with a fence, of however frail structure, it belonged to him and his heirs forever.”  Report of the Commissioners, 1849 House Doc. No. 46, at 20.  See R.L. Pease, Report of the Commissioner Appointed to Complete the Examination and Determination of All Questions of Title to Land and of All Boundary Lines Between the Individual Owners, at Gay Head, on the Island of Martha’s Vineyard, at 22 (May 22, 1871) (Pease Report).  The Tribe had another custom that allowed each member access, as necessary, across the common land and lands held in severalty.[11]  The Legislature appointed Charles Marston to determine the boundary lines of the land held in severalty by Tribe members and the boundary line “between the common lands . . . and the individual owners adjoining said common lands,” and report the details and results of his efforts.  St. 1863, c. 42.  Due to “advancing age and sickness,” Marston was unable to complete the task assigned, but he was able to prepare deeds and determine the boundary lines for a number of lots.  Report of the Commissioner, 1866 House Doc. No. 219, at 3.  The Legislature appointed Richard Pease to complete Marston’s charge.  See St. 1866, c. 67; Pease Report, supra at 3.

As the boundary lines were being determined in Gay Head, the Legislature granted Native Americans full citizenship.  An Act to Enfranchise the Indians of the Commonwealth, St. 1869, c. 463.  While other tribes were able to take full advantage of their citizenship status, the Tribe at Gay Head remained an aberration.  Because Gay Head had not been incorporated as a town, the Tribe could not freely enjoy the newly acquired benefits of citizenship such as voting at town meetings or electing town officers.  Pease Report, supra at 27-28; Report of the Committee, 1870 Senate Doc. No. 14, at 4; Banks, supra at 17-18.  Governor Claflin underlined this “political anomaly” during his annual address in 1869.  Report of the Committee, 1870 Senate Doc. No. 14, at 2-4.  See Pease Report, supra at 27; Banks, supra at 17-18.  With the hope of resolving the situation, a committee of Massachusetts Senators and Representatives visited Gay Head to determine whether it should be incorporated as a town.  Report of the Committee, supra.  The committee concluded that the members of the Tribe were capable of self-governance, well qualified, and supportive of the prospect of becoming a town.  Id. at 11.  As a result, the committee unanimously recommended that the district of Gay Head be incorporated as a town.  Id.  The Legislature responded quickly and officially incorporated the town of Gay Head.  St. 1870, c. 213.  The Legislature simultaneously established a process by which the members of the Tribe could choose to partition the common land.  St. 1870, c. 213, § 6.  “[A]ny ten resident owners of land” or, in the alternative, the selectmen of Gay Head may petition the probate court to initiate a division of the common land.  Id.  After notice and a hearing, if a probate judge determined that it was in the best interest of the parties for the common land to be divided, the judge would appoint commissioners to partition the land.  Id.

In September, 1870, seventeen Gay Head residents petitioned a probate judge in Dukes County to divide the common land for the residents to hold in severalty.[12]  Petition, Citation, and Decree for Division and Setting Off Our Lands in Gay Head, Sept. 1, 1870.  Court records reveal that after a hearing at which no one objected, Theodore Mayhew, a probate judge in Dukes County, concluded that the partition would be beneficial for the residents of Gay Head.  Joseph L. and Richard L. Pease were appointed commissioners.  In addition to partition, Richard Pease also was assigned to determine the boundary lines between the common land and the land held in severalty.  St. 1866, c. 67.  The commissioners completed the partition in 1878.  The land was divided into more than 500 lots.  Not one lot included an express easement of access.  As a result, the majority of the lots divided from the common land were landlocked.  The commissioners expressly included a right of access over three lots to a creek for the purpose of fishing.  They also reserved to certain lots the right to remove peat from other lots.

At the time of the division, there was an existing road that provided access from the Gay Head lighthouse to Chilmark, the neighboring town to the east.  Report of the Committee, 1870 Senate Doc. No. 14, at 9.  The road was in such “deplorable condition” that the committee in 1870 insisted that the Legislature repair the road.  Id.  However, the lots at issue in this case did not abut this road.  Over the past one hundred years, the landscape of Gay Head has changed.  There are other roads in existence, such as the Moshup Trail that was created decades after the partition of the common land.  The plaintiffs’ lots do not abut these roads and remain landlocked.

3.  Standard of review.  Generally, in a jury-waived case we review the trial judge’s findings of fact for clear error.  See U.S. Bank Nat’l Ass’n v. Schumacher, 467 Mass. 421, 427 (2014); Board of Registration in Med. v. Doe, 457 Mass. 738, 742 (2010).  However, “[w]here findings are predicated not on the assessment of witness credibility but, rather, on documentary materials, this highly deferential standard is inapplicable.” Commonwealth v. Pugh, 462 Mass. 482, 494-495 (2012).  In this case, we are in the same position as the trial judge to view the evidence and therefore no special deference is shown.  However, this case was not decided on documentary evidence alone.  It was presumed and undisputed that there was a tribal custom that allowed the Tribe members to pass freely over each other’s land as necessary.  This presumed fact is the law of the case and with respect to this one issue.  We will continue to treat it as fact.  We review the judge’s conclusions of law de novo.  U.S. Bank Nat’l Ass’n, 467 Mass. at 427.

4.  Easement by necessity.  An easement is a limited, nonpossessory interest in the land of another that can be created expressly, see Cheever v. Graves, 32 Mass. App. Ct. 601, 605-606 (1992), by prescription, see G. L. c. 187, § 2 (easement by prescription), or by implication, see Kitras I, 64 Mass. App. Ct. at 291.  An easement by necessity is a type of implied easement.  “An implied easement is ‘founded on the idea that it is the purpose of the parties that the conveyance shall be beneficial to the grantee,’” even if it had not been expressed in the instrument of conveyance.  Ward v. McGlory, 358 Mass. 322, 325 (1970), quoting Orpin v. Morrison, 230 Mass. 529, 533 (1918).  An easement by necessity most often arises when a conveyance renders a parcel of land landlocked.  It provides access over the parcel that is not landlocked, if the parties so intended.  There is no public policy that creates an easement by necessity to make land accessible.  Kitras I, supra at 298.  Richards v. Attleborough Branch R.R. Co., 153 Mass. 120, 122 (1891).  It is a purchaser’s “own folly” that he purchased land that had no access to some or all of the land “and he should not burden another with a way over his land, for his convenience.”  Orpin, supra at 533-534.  Gayetty v. Bethune, 14 Mass. 49, 56 (1817).  “The law does not give a right of way over the land of other persons to every owner of land who otherwise would have no means of access to it.”  Richards, supra.

The party claiming an easement by necessity has the burden of establishing that the parties intended to create an easement that is not expressed in the deed.  Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100, 105 (1933).  The law has devised a presumption to assist the inquiry into the intent of the parties when a conveyance renders a parcel of land landlocked.  It is the presumed intent of the parties that when a parcel of land becomes landlocked as a result of a conveyance the land conveyed included rights of access.  Orpin, 230 Mass. at 533.  See Davis v. Sikes, 254 Mass. 540, 545 (1926); Schmidt v. Quinn, 136 Mass. 575, 576 (1884) (“for when land is conveyed which is inaccessible without trespass, except by passing over the land of the grantor, a right of way by necessity is presumed to be granted; otherwise, the grant would be practically useless”); Bedford v. Cerasuolo, 62 Mass. App. Ct. 73, 76-77 (2004).  It is a “pure presumption raised by the law” that an easement by necessity exists, and this presumption is construed with strictness.  Orpin, supra.  A presumption of easement by necessity arises upon a showing of the following elements:  (1) unity of title; (2) severance of that unity by a conveyance; and (3) necessity arising from the severance, most often when a lot becomes landlocked.  Kitras I, 64 Mass. App. Ct. at 291.  The necessity must have existed at the time of the division.  See Viall v. Carpenter, 14 Gray 126, 127 (1859).

The parties opposing the easement may rebut the presumption by presenting evidence that at the time of conveyance the parties did not intend to create rights of access.  Orpin, 230 Mass. at 531, 534 (presenting oral testimony of conversation between original parties to rebut presumption).[13]^,[14]  The intent of the parties can be ascertained from the circumstances surrounding the conveyance, the information known to the parties of the conveyance, the language of the instrument, and the physical condition of the land.  Dale v. Bedal, 305 Mass. 102, 103 (1940); Davis, 254 Mass. at 545; Orpin, supra at 533.

5.  Discussion.  The Land Court judge assumed that the plaintiffs satisfied the elements of a presumption of an intent to establish an easement by necessity but concluded that the defendants submitted sufficient evidence to rebut the presumed intent of the parties.  The judge concluded that (1) tribal custom and usage of the land, (2) other rights granted, and (3) the condition of the land at the time of partition provided sufficient evidence to rebut the presumed intent.  We agree.

We first must determine whether the requisite elements exist that give rise to a presumption of an intent to create an easement by necessity.  There is no dispute amongst the parties that, as to the first two elements, there was unity of title (aside from lot 178) and a subsequent severance of that unity of title.[15]  The defendants contend that the plaintiffs have not satisfied the third element of necessity arising from the severance.  There is no question that the lots at issue are landlocked.  However, we must look to the circumstances at the time of the conveyance to determine whether necessity existed.  Mt. Holyoke Realty Corp., 284 Mass. at 104.  Richards, 153 Mass. at 122.  Schmidt, 136 Mass. at 576-577.  At the time of the partition in question, the prevailing tribal custom was to allow members of the Tribe to pass freely over the common land and land held in severalty when necessary.  In other words, the lots already had access rights, rendering express rights of access unnecessary.  Despite this question of necessity, where the lots in question appear to be landlocked because of the partition, we proceed under the assumption that the plaintiffs have established the three elements that give rise to the presumption of an intent to create an easement by necessity.  The defendants’ contention is more appropriately analyzed as rebuttal.

The primary question in this case is whether, at the time of partition, the parties intended to provide rights of access to the hundreds of lots divided from the common land.  Admittedly, this case does not present circumstances that typically support the presumption of an easement by necessity.  The typical situation involves one grantor and one grantee, and it is their intent that is dispositive.  In this case, we have a large scale partition of Native American common lands that have multiple grantees, and the commissioners who were appointed by the probate court (as authorized by the Legislature) as the grantors.  We look to the intent of these parties to determine whether they intended to create rights of access in the hundreds of lots partitioned.[16]

After analyzing the circumstances surrounding the 1878 partition and the information known to the commissioners at the time of the partition, we conclude that at that time the parties did not intend to create easements, and that therefore the defendants presented sufficient evidence to rebut the presumption.  There was evidence that tribal custom provided access rights to members of the Tribe, other easements were created, and the land was in poor condition at the time of partition.  This evidence is sufficient to rebut the presumption that the grantor intended to include easements by necessity.

The plaintiffs argue that the historical context of the partition makes it clear the intention was to provide rights of access to the lots.  According to the plaintiffs, one of the goals of granting Native Americans citizenship was to allow them to own and sell property and that is why the Legislature authorized the partition of the common land.  The plaintiffs maintain that if easements of access were not intended, the Tribe members’ lots would not be salable and this would undermine the Legislature’s purpose of granting Native Americans citizenship.  The plaintiffs are correct in saying that the Legislature considered the ability to exercise control over one’s own property as a privilege of citizenship.  See Report of the Committee, 1870 Senate Doc. No. 14, at 5.  However, we do not glean from the record the Legislature’s intention to create access rights for the purpose of dividing the common lands into salable property.  See St. 1870, c. 213, § 6.  The historical record demonstrates that it was for the members of the Tribe to determine whether to partition their common land because “[t]his . . . is a question of ‘property,’ which every ‘citizen’ should have the privilege of determining for himself.”  Report of the Committee, supra.  The Legislature merely gave the Tribe the authority to choose to partition their common land and a method by which to do so.  Furthermore, it was the commissioners who carried out the division of the common lands with input from the Tribe.

At the time of the partition, the tribal custom admitted free access over all the land, as necessary.  It is likely that the commissioners did not think that rights of access were necessary because it was provided by tribal custom.  The plaintiffs argue that the Legislature knew that Indian title[17] was nonexistent at the time of partition and that, even if it did not, the Legislature did not intend for tribal customs to prevail after partition.  This argument fails.  “[W]e see no reason why the common practice, understanding and expectations of those persons receiving title could not shed light on the parties’ probable, objectively considered intent.”  Kitras I, 64 Mass. App. Ct. at 300.  The commissioners partitioned the common land after a lengthy process that took into consideration the wants of members of the Tribe.  We find evidence of this process in the reservation of the right to remove peat, and in the decision to leave the cranberry bogs and cliffs in common ownership.  We infer that the commissioners, upon learning of this tribal custom, determined that it was not necessary to include access rights for the partitioned lots.  Also, whether the tribal custom continued after the partition is not relevant.  We look to the condition and circumstances at the time of the partition and not subsequent events.[18]  Mt. Holyoke Realty Corp., 284 Mass. at 104.  Richards, 153 Mass. at 122.

The Land Court judge also found persuasive the existence of reserved rights in a number of the deeds, and applied the rule of construction “expressio unius est exclusio alterius” (i.e., to express or include one thing implies the exclusion of the other) when concluding that the omission of other rights of access was intentional.  Joyce v. Devaney, 322 Mass. 544, 549 (1948).  A number of deeds reserved rights to gather peat from another’s land.  There were also three instances where rights were reserved for access to a creek for purposes of fishing.  The right to gather peat included in a number of deeds is known as a profit à prendre,[19] which the plaintiffs correctly observe is different from an easement.  Although a profit à prendre does not specifically grant a right of access, some access is implied in order to go onto specific land to remove that which is described therein.  See Gray v. Handy, 349 Mass. 438, 440 (1965).  More to the point, a profit à prendre indicates that the commissioners knew how to reserve rights when drafting deeds.  The commissioners also clearly provided for a right of access to a creek “for the purpose of fishing and clearing the creek.”  The fact that the commissioners had the knowledge and foresight to reserve peat rights and expressly grant access to a creek for certain Tribe members is evidence that the omission of access rights to the rest of the land was intentional.

Additionally, the Chappaquiddick Tribe, located on a small island on the eastern coast of Martha’s Vineyard, had their common lands divided.  The commissioners who partitioned Chappaquiddick’s common land included in their deeds express rights of access to roads.  It is likely that the commissioners of the Gay Head partition were well aware of the division of the common land at Chappaquiddick because Richard Pease, in his report written in 1871, frequently quoted and cited prior commissioners’ reports that described the Chappaquiddick Tribe (as well as other tribes residing in Massachusetts).[20]  See Pease Report, supra at 22.  See also Report of the Commissioners, 1849 House doc. No. 46, at 8, 11; Report of the Commissioner, 1862 House Doc. No. 215, at 16.  The fact that an earlier partition of common land on Martha’s Vineyard provided rights of access to Tribe members, known to the Gay Head commissioners, supports a finding that the absence of access easements in the conveyance flowing from the Gay Head partitions was intentional, thereby rebutting the presumption of easements by necessity.

The physical condition of the land in question also is a factor when determining the intent of the parties in this case.  Dale, 305 Mass. at 103.  The multiple reports authored by various commissioners provide detailed descriptions of the quality of the land and the landscape at Gay Head at the time of the partition in 1878.  The plaintiffs rely on the many descriptions that praise the land of Gay Head, and assert that the Land Court unnecessarily focused on the few poor descriptions.  The plaintiffs are correct in saying that there are some descriptions that praise the land at Gay Head.  A group of commissioners described the land as containing “almost every variety of soil; a portion of the land is of the very best quality, and capable, under good culture, of producing most abundant harvests.”  Report of the Commissioners, 1849 House Doc. No. 46, at 19.  John Milton Earle, an appointed commissioner in 1862, described the land as “a great variety of soil, some of it of excellent quality.”  Report to the Governor and Council, 1862 House Doc. No. 215, at 33.  Commissioners further observed that the land could be “reasonably productive” if there were more money available to tend to the land.  Report of the Committee, 1870 Senate Doc. No. 14, at 5.

Despite the intermittent praise, there were many contrary descriptions of the land as desolate and deficient.  One report described Gay Head as a “Sahara-like desolation” and implored the Legislature to provide a remedy to the poor condition of the Gay Head land, predicting that “unless some remedy is found, the whole will eventually become one cheerless desert waste.”[21]  Report of the Commissioners, 1856 House Doc. No. 48, at 9.  The special joint committee of Massachusetts senators and representatives who visited Gay Head in 1869, and whose assessment of the land the trial judge credited, thought it better for the common land to be held in common for the whole Tribe “as pasturage and berry lands,” than for the land to be divided into lots that ultimately would “lie untilled and comparatively unused.”  Report of the Committee, 1870 Senate Doc. No. 14, at 5.  The land also was described as “uneven, rough and not remarkably fertile.”  Id.  As the descriptions recited above indicate, contrary to the plaintiffs’ assertions, the poor condition of the land was predominant and widely documented.  It is likely that the commissioners, observing the poor condition of the land, reckoned that rights of access were not needed for land that would “lie untilled and comparatively unused.”[22]

We agree with the Land Court judge’s conclusions that (1) tribal customs, (2) the existence of other easements included in the deeds, and (3) the condition of the land provide more than sufficient evidence to rebut the presumption that the commissioners intended to create access rights when they partitioned the common land, and that the “[p]laintiffs have failed to introduce evidence sufficient to carry their substantial burden of proving easements by necessity.”  See Kitras II, 87 Mass. App. Ct. at 30-31 (Agnes, J., dissenting).  We conclude that the plaintiffs failed to meet their burden of establishing that the commissioners intended to create easements by necessity.

6.  Lot 178.  The plaintiffs argue that the trial court erroneously excluded lot 178, owned by the plaintiff Maria Kitras (as trustee of Bear Realty Trust), from the remand proceedings.  We disagree.  In Kitras I, 64 Mass. App. Ct. at 293-294, the Appeals Court concluded that only lots 189 and above could possibly have an easement by necessity.  The “law of the case” doctrine applies.  “The ‘law of the case’ doctrine reflects this court’s reluctance ‘to reconsider questions decided upon an earlier appeal in the same case’” (citation omitted).  King v. Driscoll, 424 Mass. 1, 7-8 (1996).  An already decided issue should not be reopened “unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.”  Id. at 8, quoting United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir.), cert. denied, 502 U.S. 862 (1991).  In this case, the issue only could have been reopened if the Appeals Court decision in Kitras I, supra, clearly was erroneous and would work a manifest injustice.  We see no reason to reopen the issue regarding lot 178.

7.  Conclusion.  For the foregoing reasons, we affirm the judgment of the Land Court.

Judgment affirmed.

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