These summaries of case decisions are intended for informational purposes only. They are not intended to be interpretations of the law, nor do they encompass the subtleties of each case. Therefore, reference to the original text is indispensable.

Wednesday, June 13, 2012

Commonwealth v. Ernesto Gonzalez

J. Lenk.

HISTORY:  The parties were granted a joint application for direct appellate review after a Superior Court judge allowed the defendant’s McCarthy motion to dismiss on the basis of the unconstitutionality of G.L. c. 209C, § 10(b).  Commonwealth v. McCarthy, 385 Mass. 160 (1982).  McCarthy allows a court to dismiss an indictment where the grand jury receives “no evidence of criminality” on the part of the accused.

FACTS:  The defendant was indicted in December 2008, under the parental kidnapping statute (G.L. c. 265, § 26A) after his five year old nonmarital son (G.G.) disappeared while in the defendant’s care.  The defendant argued that the Commonwealth could not prove that he acted “without lawful authority” in allegedly taking G.G. as required by the kidnapping statute.  The Commonwealth relied on G.L. c. 209C, § 10(b) to satisfy this element of the crime, “the child’s mother is vested with sole physical and legal custody, and that custody arrangement continues even after paternity is established until modified by a court.”  The defendant challenged § 10(b) because it discriminates against him based on his gender by granting ongoing custody of nonmarital children to their mothers absent modification by court order. 
In 2003, G.G. was born and the defendant is listed as G.G.’s father on his birth certificate.  The mother and the defendant never married, but the three lived together until G.G was about two years old.  The parents separated in 2005 and G.G. remained in the care of his mother while the defendant orally agreed to pay child support.  The mother ended up seeking an order for child support in the Probate and Family Court.  When G.G. was almost four years old, in April 2007, the judge ordered child support to be withdrawn from the defendant’s paycheck.  The defendant did not seek and the judge did not issue any custody or visitation orders.

            By June 2008, the defendant filed a complaint in the Probate and Family Court for joint custody of G.G. and for visitation rights even though he had not had any contact with G.G. for almost one year.  The mother and the defendant agreed that he could have weekend visits with G.G. at the defendant’s home.  There were no incidents during the first two visits occurring August 1-3 and August 8-10, 2008.  The next weekend, August 17, 2008, G.G. went missing and has not since been found.  According to the mother, G.G. was dropped off at the defendant’s home on a Friday (August 15, 2008) like the previous visits; whereas the defendant told the police he had not been with G.G. that weekend, and had not seen him since the previous weekend.

ISSUE:  Does an as-applied constitutional challenge of a parental kidnapping statute warrant a dismissal of a grand jury indictment when there may be other ways still available of proving the same element of the crime?

No.  Parental kidnapping requires that an individual, “being a relative of a child less than eighteen years old, without lawful authority, holds or intends to hold such a child permanently or for a protracted period, or takes or entices such a child from his lawful custodian.”  The Commonwealth must provide evidence of each of the elements before the grand jury to establish “probable cause” that the defendant, in taking or holding G.G. acted “without lawful authority.”  The Commonwealth can prove that an individual lacks lawful authority over his child in numerous ways through a range of statutes or court order.  Therefore the defendant can be convicted, if the Commonwealth can establish his lack of authority over G.G. in any way that element can be proved.

The indictment may instead be based on G. L. c. 209C, § 10(c), which states that “if either parent…relinquishes care of the child or abandons the child and the other parent is fit to have custody, that parent shall be entitled to custody.”  For three years, the mother acted as G.G.’s sole custodian while the defendant had completely disappeared during one of those years.  The defendant asked for permission to re-enter G.G.’s life from the mother, which recognizes her role as the custodial parent.  This evidence is sufficient to meet the burden of evidence that the defendant “relinquished care” of G.G. to the mother under G. L. c. 209C, § 10(c), and lacked lawful authority under the parental kidnapping charge “upon the expiration of [the mother’s] permission at the end of the weekend visit.”

The proper way to challenge the default rule in favor of the mother’s custody would have been to file for physical custody of G.G. in the Probate and Family Court pursuant to G. L. c. 209C, § § 1 and 10.  If the judge would have refused to grant the defendant either joint or sole physical custody and legal custody, the defendant could then use his as-applied constitutional challenge on appeal.  Otherwise, unmarried noncustodial fathers would be allowed to take their child without a court order or custodial mother’s agreement, and during a criminal prosecution for parental kidnapping which is sure to follow, “air their grievances” concerning statutes that apply to nonmarital children.

The standard of this inquiry is based upon the child’s safety first.  Unmarried, noncustodial fathers cannot resort to “self-help” in these circumstances by taking the child first, and raising an as-applied constitutional challenge of a custody statute disregards the child’s safety and best interests.  The rights of an unmarried, noncustodial father “will not be enforced to the detriment of the child.”  Richards v. Forrest, 278 Mass. 547, 553 (1932).

The defendant must show that he would have been denied custody before he can challenge the constitutionality of the custody statutes as applied to him.  Because he did not fully pursue his remedy in the Probate and Family Court, or demonstrate any interest in physical custody of G.G. in the three years prior to his disappearance, the defendant cannot now raise this constitutional challenge.

JUDGMENT:  Reversed the order allowing the motion to dismiss the indictment  (MB)

Commonwealth v. Alexander Molina

Facts: This is an appeal from the defendant’s conviction of murder in the second degree and two firearm violations based on a violation of Commonwealth v. Miranda, improper denial of his motion to suppress statements, and insufficient instruction with respect to “honest but mistaken identification.”

The victim was shot and killed in New Bedford. Three witnesses saw the events of the shooting and testified to their own accounts. One witness, given the pseudonym Claire, was given a cash reward from the New Bedford Chamber of Commerce reward program, which was established to assist in the resolution of unsolved homicide cases.

Issue #1: Were the requirements established in Commonwealth v. Miranda pertaining to cash rewards for witnesses satisfied? Yes, Miranda requires that (1) the payment arrangement must be disclosed to each defendant before the proceeding at which the witness testifies (2) the defendant must be afforded an opportunity to cross-examine the witness about the fee (3) the court must instruct the jury about the heightened scrutiny given to testimony under fee arrangement (4) there can be no indication that the government is sponsoring or suborning perjury. In this case, the requirements of pretrial disclosure and heightened scrutiny standard instruction are at issue.

(a) As to the nondisclosure, the Commonwealth addressed this issue at sidebar by expressing concern that Claire had not been examined with respect to the reward program. The defendant was able to cross-examine the witness and stated that the issue had been satisfied with the information he obtained.  While Miranda had not been decided at trial, the court stated that the requirements were made pursuant to rule 14 of the Massachusetts Rules of Criminal Procedure. As such, the defendant knew he was waiving an existing right when he did so at trial.

(b) As to the requirement of a heightened scrutiny instruction, the court provided an instruction, which stated that “you may also consider a witness’s motive for testifying and whether they display any bias in testifying and whether the witness has an interest in the outcome of the case.” The court reasoned that while the instruction may not be as extensive as that given in Miranda, it goes to the same premise, therefore satisfying the requirement.

Issue #2: Did the judge err in denying the defendant’s motion to suppress statements made to the police? No, the defendant had knowingly and voluntarily waived his Miranda rights and the defendant did not clearly request an attorney after such a waiver. While the defendant made mention of an attorney, the court held that such statements failed to rise to an unequivocal request for counsel.

Issue #3: Did the judge err in not making a sua sponte instruction on honest mistaken identification?  No, such an instruction should be given when the facts permit it and the defendant request it. The judge is not required to provide such an instruction in the absence of such a request. 

Judgment: Affirmed. (KL) 

Monday, June 11, 2012

William Plamond v. Outcepts Management & Consulting, LLC.

Facts: This is an appeal from the Superior Court ruling that the defendants failed to show that the area, which their new billboard was located in, was not predominantly residential, thus warranting removal.

In 2009 the defendants replaced an existing billboard that had stood for about forty years. The entire area at issue is zoned to be residential. As the new billboard would be different from the old one (in terms of size, shape, less surface area, changing display feature, and the new board is lit with LED lights, rather than floodlights), the new billboard has no grandfather status.

The Defendant filed two applications with the Massachusetts Office of Outdoor Advertising (MOOA). MOOA permit decisions are made solely by the MOOA director. In this case, the director did not visit the site, but approved the permit. The director relies on information provided by the application and field inspectors. In this case, the field inspector indicated that the area was not residential in character. Furthermore, the MOOA director relies on information provided by the building inspector. In this case, the inspector certified that the billboard was grandfathered under the zoning by-law. MOOA approved the application on March 11, 2010.

Plaintiff, who lives in at a property directly abutting the location of the billboard, first complained to the building inspector. The inspector visited the site, saw the sign exceeded the specified height, and delivered a stop work order. The order was lifted after the inspector received revised documentation of the sign height. Plaintiff next sought relief from the director of MOOA on the grounds that the sign was placed in a residential area. Plaintiff also sought relief from the town. The building inspector informed her that the sign did not require zoning relief. The inspector informed the plaintiff could seek relief under the Westport board of appeals and the State Building Code of Appeals Board. The plaintiff did not pursue either avenue.

Plaintiff filed this action in Superior Court seeking injunctive relief. At issue is 711 Code Mass. Regs. § 3.07, which states

“(3) No permit shall be granted or renewed for a sign that is not located in an area of business character. An area shall be deemed to be of business character only if, when viewed from the principal highway upon which the sign is to face, both of the following requirements are met:

(a) At least two separate business, industrial or commercial actives are being conducted within a distance of 500 feet from the proposed location of the sign, measuring from such proposed location to the buildings or parking lots or other places of actual business, industrial or commercial activity…

(b) The area in which the sign is located is not predominantly residential, agricultural or open space or natural area.”

Issue #1: Did the Plaintiff’s failure to exhaust their administrative remedies remove the Superior Court’s jurisdiction?  No, the only available means for challenging the MOOA’s decision was to bring equitable action. Administrative remedies are not available to abutters or other interested parties, which was made evident in the Plaintiff’s attempt to ask the MOOA to review its permitting decision.

Issue #2: Did the absence of the MOOA as a party deprive the Superior Court of jurisdiction?
No, the MOOA was a party in the amended complaint and moved to be dismissed on the grounds of immunity without defense objection. As such, the claim of indispensible party is effectively waived.

Issue #3: Did the judge err in finding that the billboard was in a predominantly residential area? No, the new billboard as a matter for law did not satisfy the requirements first in terms of the characteristic of the neighborhood as viewed from the highway and secondly the failure to satisfy both requirements under 711 Mass. Regs. § 3.07(a) and (b).

Judgment: Superior Court judgment affirmed.

Note: Though Superior Court applied a standard of review pursuant to G.L. c. 30A (appeal from administrative decisions), this court declined to determine the correct standard to be employed in actions brought under G.L. c. 93, 31 (review by interested persons), as the new billboard did not satisfy the requirements for 711 Code Mass. Regs. § 3.07. (KL)

John Richardson v. Board of Appeals of Chilmark

Facts: This is an appeal from the Land Court’s order of summary judgment dismissing the Plaintiff’s appeal from the issuance of a building permit.  In September of 1999 the Plaintiff’s neighbor obtained a building permit for the construction of a large single-family dwelling on his property. In January of 2005, the plaintiff began this action in Land Court to enjoin the neighbor from constructing the dwelling. The plaintiff alleged a zoning by-law violation related to his permit. The zoning board denied the Plaintiff’s multiple enforcement requests and a Land Court judge affirmed the board’s denials.

Issue: Did the Land Court judge err in affirming the zoning board’s denial of the Plaintiff’s multiple enforcement requests? No, the Plaintiff had constructive notice of the issuance of the permit and failed to a file a timely appeal within the thirty-day period allotted for such an appeal and the Plaintiff’s failure to raise the violation warrants the application of laches.

Reasoning: The court reasoned that the Plaintiff knew that the neighbor wanted to begin construction immediately, which was sufficient to place the Plaintiff on duty of inquiry into the building permit issuance. The failure of the Plaintiff to appeal within the allotted thirty-days warrants dismissal. Furthermore, the court reasoned as an independent ground for their decision the doctrine of Laches bars the Plaintiff’s complaint. The Plaintiff failed to raise the issue for a significant amount of time and such a delay was unjust, unreasonable, and prejudicial.

Judgment: Affirmed. (KL)

Commonwealth v. Acosta

Facts: This is an appeal from the defendant’s conviction of possession of cocaine with intent to distribute and an accompanying school zone offense. On January 1, 2009, a state trooper noticed the defendant weaving in and out of the speed lane on the highway. The trooper pulled the defendant over and directed him to roll down his window. The trooper smelt alcohol on the defendant and observed a ¾ empty bottle of whisky and a case of bear in the backseat of the defendant’s car. The trooper ordered the defendant out of the vehicle, who had difficulty complying and kept his left hand in his pocket, despite being told to take it out. The trooper placed the defendant under arrest, took his hand from his pocket. In the defendant’s hand was a clear plastic bag containing five smaller clear plastic bags containing cocaine, which weighed 3.16 grams. In a police dog search of the defendant’s car, the dogs discovered 2 additional open bags of cocaine in the defendant’s wallet containing a combined total of .14 grams of cocaine.

Issue: Did the judge err in denying the defendant’s motion for a required finding of not guilty? Yes, no jury could have found that the defendant had the intent to distribute without employing speculation or guesswork. Therefore, on the count of the complaint charging possession of cocaine with intent to distribute is vacated, while the verdict of the lesser-included offense of possession of cocaine stands.

Reasoning: The court reasoned that the amount of drugs in the defendant’s possession was not enough to infer intent to distribute, but that certain indicia may be considered in assessing the defendant’s intent to distribute such as distinctive packaging, possession of large quantities of drugs, or the presence other items used to manufacture or distribute drugs. The court stated that the Commonwealth’s evidence in the present case was ambiguous and lacked evidence of specific intent. The court further reasoned that while expert testimony may be used to meet the Commonwealth’s burden, in the instant case, the trooper’s opinion of the defendant’s intention was wholly speculative.

Judgment: On the count of possession of cocaine with intent to distribute, the portion of the verdict “with intent to distribute” is set aside, but the lesser-included offense of possession of cocaine is to stand. The case is remanded to District Court for resentencing on the lesser offense.

On the count the complaint charging the violation within a school zone, the judgment is reversed, verdict set aside, and judgment entered for the defendant. 

Note: The court declined to address the defendant’s remaining claims including those in relation to the school zone charge, as it could not stand in light of the reversal of the conviction of possession with intent to distribute. (KL)

Friday, June 8, 2012

Commonwealth vs. Obdulio Santana

The defendant noticed that one of the occupants was doing work on a fence at the residence and offered his services. Both agreed that he would come back on Monday with a different paint for the fence and he was informed that the occupant would not be home until after 6:00 pm. The other occupant was home on Monday and aware that the Defendant would be coming to paint the fence. The occupant heard persistent knocks and the doorbell ringing; then she witnessed the Defendant at the sliding door, knock, walk away from the door. Moments later she heard glass shattering. The occupant saw the Defendant leave, she then discovered that the cellar window had been broken, called the other occupant at work and told her she was “really scared” and instructed her to come home. While on the phone, the Defendant returned and looked as if he was painting the fence, moved out of sight and then noise was heard that sounded as if someone had entered into the basement through the broken window. She heard the footsteps come up the stairs and called 911 and on the phone reported his appearance. A short distance away two police officers noticed him and held him. The occupant who had hired the Defendant, identified him while he was being detained.

Procedural History:
The defendant was found guilty “of breaking and entering with the intent to commit a felony and with the resulting infliction of fear upon a lawful occupant” in Hampden Superior Court.

Did the court error in convicting the defendant?

No. The Defendant claims that the Commonwealth did not meet their burden of proof in proving that he “intended to cause fear to the occupant”. Looking at the relevant language in G.L. c. 266 §17 as quoted in the opinion it states that “Whoever… breaks and enters in the day time, a building… with intent to commit a felony, the owner or any other person lawfully therein being put in fear, shall be punished...”. Usually when the evidence and its sufficiency of bringing about a verdict are questioned the evidence is considered in a light that would be more favorable to the prosecution and must be proven beyond a reasonable doubt, in this case the intent to place the owner or others lawfully in the building in fear does not have to be intended but rather it must be the result of the acts the Defendant committed. Additionally, courts usually use statues in a manner that does not contradict Common Law unless it is explicitly attempting to change the statutory meaning; the common law does not reflect the need of intent to cause fear in the occupant. This is especially true when it involves a home. Lastly, unlike the case cited by the defendant, this case does speak of the need to prove intent and thus does not manifest a strict liability crime; his “intent to commit the crime will fairly subject him to liability for its incidental but serious consequences.

Affirmed (DQ).