Commonwealth v. Cheremond, 461 Mass. 397 (2012).

 Supreme Judicial Court -- January 30, 2012

Facts: The victim operated a beauty salon on Salem Street in Malden and the defendant operated a video and music shop next door. The victim and defendant lived together until February 5, 2007 at which time defendant was ordered to move out of their apartment pursuant to a non-contact abuse prevention order obtained by the victim, that had recently expired. The order, however, allowed for defendant to operate his business.

On February 10, 2008, the defendant learned that the victim was dating a man named Yves at which point he confronted the two individuals and berated the victim.

On Feburary 13, 2008 the victim arrived at the beauty salon at about 9:45 am. At about 11:40 am she told Blandine, an employee, that she was going out and would return. She left without her pocketbook and never returned. Throughout the day, Blandine tried to call the victim's cellular phone but the victim did not answer. Within two hours of the victim leaving the salon, the defendant entered and told Blandine that he had come for the victim's pocketbook.

Multiple people, including Blandine, Yves, and victim's brother had attempted to call the victim over the next two weeks but each call went unanswered. The victim's cellular phone records showed which local cellular telephone tower transmitted each call. On February 13, the victim's cellular telephone received all calls from the tower near the victim's salon and the defendant's store. On February 14, calls were received from a tower near where the defendant was living.

The victim's brother arrived at the defendant's store and inquired about the victim. The defendant told him that he had seen men changing the lock on the salon door. When the victim's brother telephoned the salon the following Friday, the defendant answered the telephone and told her brother that he had obtained a key from the landlord of the building and that he was there to clean the salon. When her brother asked for the landlord's telephone number, the defendant said that he did not have it. The brother then drove to the Lynn police department for assistance.

On Wednesday, February 27, officers from the Malden police department discovered the victim's car parked on Faulkner street which is between the victim's salon and a location where the defendant had been dropped off by a cab at approximately 3:30 am on February 14. The pocketbook was found in the car, the contents of which were inventoried. Police found a duplicate car key, the original was found above a ceiling panel in the defendant's store, her cellular telephone, and a copy of the abuse prevention order. The victim's body was found in the trunk of the car.

An autopsy of the victim's body revealed that she had died from asphyxia. DNA from the defendant was found under the victim's fingernails and was obtained through vaginal and anal swabs. Chewing gun affixed to the victim's shirt was also determined to match that of the defendant.

Procedural History: The defendant was convicted of murder in the first degree on theories of deliberate premeditation and felony-murder based on a predicate felony of aggravated rape, and aggravated rape. The defendant appealed his conviction asserting error in the denial of his pretrial motion to dismiss based upon an argument that there was a lack of probable cause that the sexual intercourse between him and the victim was not consensual, and denial of his motion for a required finding of not guilty, both based on the sufficiency of evidence as to the element of consent with respect to aggravated rape. He also challenged the admission of evidence of prior bad acts, and the propriety of the prosecutor's closing arguments.

Issue #1: Whether the grand jury received evidence of criminality on part of the defendant so as to justify his indictment for aggravated rape?

Yes. The court determined that the grand jury had been presented with sufficient evidence to “establish probable cause to believe the defendant had had sexual and unnatural sexual intercourse with the victim, that he compelled her to submit by force and against her will, and that serious bodily injury resulted.” Therefore, the court concluded that the lower court did not err in denying the defendant's motion to dismiss the aggravated rape indictment because the jury could have inferred that the victim did not consent to intercourse with the defendant.

Issue #2: Whether the lower court erred in denying his motion for a required finding of not guilty as to the indictment alleging aggravated rape and so much of the murder indictment that relied on a theory of felony murder based on the predicate felony of aggravated rape, because the Commonwealth failed to prove beyond a reasonable doubt that the victim did not consent to sexual intercourse with the defendant?

No. The court found that based upon the evidence of lack of consent presented, particularly the victim's injuries, was very powerful and supported a finding beyond a reasonable doubt that the victim did not consent to sexual intercourse or “unnatural intercourse” with the defendant.

Issue #3: Whether the lower court erred by allowing evidence of the defendant's prior bad acts?

No. The court determined that because the absence of consent is an essential element of the crime of rape, the victim's state of mind at the time of the intercourse is relevant to the issue of consent. All such objected to evidence presented at the trial was relevant to the victim's state of mind, specifically whether she would have consented to sexual intercourse with the defendant. (MS)

In re Adoption of Meaghan, 461 Mass. 1006 (2012).

 Supreme Judicial Court -- January 30, 2012

Facts: Child's legal guardians filed a petition to adopt her pursuant to G.L. c. 210 s3(a), 6. The child's father, who is indigent and whose parental rights would be terminated if the petition were granted, filed an objection to the adoption.

Procedural History: The Probate and Family Court appointed counsel for the father and child. CPCS sought a ruling as to whether it was authorized to compensate counsel in these circumstances. In doing so, CPCS moved to intervene for purposes of asking the judge to reserve and report the question of the father's and child's entitlement to appointed counsel in a case initiated by private parties.

Issue #1: Whether indigent parents have a right to court-appointed counsel in termination/adoption proceedings filed by persons with care and custody of the child?

Yes. The court agreed that an indigent parent has a constitutional right to counsel when an action for adoption is commenced by the would-be adoptive parents, just as the parent would be entitled to counsel had the action been initiated by the department or other agency. This is so because the Supreme Court of the United States has deemed that the interests of parents in their relationships with their children are fundamental and constitutionally protected. The cost to this interest in erroneously terminating the parent's rights is too high to risk without the assistance of counsel. Therefore, an indigent parent facing possible loss of parental rights will not have a meaningful right to be heard without the right to assistance of counsel. This guarantees that the court's decision concerning this fundamental right is made with the “utmost care” and “an extra measure of evidentiary protection.”

Issue #2: Whether children of indigent parents have a right to court-appointed counsel in termination/adoption proceedings filed by persons with care and custody of the child?

Yes. With regard to the child, the court also determined that the child cannot have a meaningful opportunity to be heard in a contested proceeding without the assistance of counsel, regardless of whether the case was initiated by the department, agency, or a private party. Furthermore, children are entitled to appointed counsel in a variety of other cases where the parent-child relationship is at stake. (MS)

Zaniboni v. Massachusetts Trial Court, 81 Mass.App.Ct. 216 (2012)

 Appeals Court -- January 30, 2012

Facts: In 1998, the Trial Court advertised for two level fifteen HAA positions at the Plymouth County Division of the Probate and Family Court. Devitt, Gomes, and the Plaintiff, Zaniboni applied for the HAA positions. When the Plaintiff and Gomes were offered the positions, Devitt filed a grievance and the three above mentioned candidates were reinterviewed. Following the interviews, Gomes and Devitt were offered the HAA positions and the Plaintiff was demoted from her HAA position.

Procedural History: Plaintiff sued the Trial Court, alleging age discrimination in its demotion of her from the HAA position, and the court's failure to designate her as a DAR. The Trial Court (Defendant) moved for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial judge allowed the defendant's motion for a new trial, from which the plaintiff appealed. The defendant cross-appealed from the denial of its motion for judgment notwithstanding the verdict.

Issue: Whether from anywhere in the evidence, a reasonable inference could be drawn in favor of the plaintiff?

No. The court concluded that denial of the defendant's motion for judgment notwithstanding the verdict was an error. The court stated that for the verdict denying the defendant's motion for judgment notwithstanding the verdict must be sustained if the plaintiff offered any evidence whatsoever from which the jury could have reasonably reached a decision in favor of the plaintiff. It determined that while the plaintiff successfully established a prima facie case for age discrimination, the defendant was able to show evidence which illustrated that the defendant's motivation for hiring Devitt was due to the fact that she was more qualified than the plaintiff, not due to her age. Furthermore, the plaintiff was unable to refute the defendant's legitimate nondiscriminatory claim that Devitt was more qualified for the HAA position. The order denying the defendant's motion for judgment notwithstanding the verdict was reversed. (MS)

JOHN P. SULLIVAN & another(1) vs. ELIZABETH O'CONNOR & others

 Appeals Court -- January 27, 2012

  

Facts: In 1977, the Sullivans purchased a lot within the Westwood Hills Community. The Community is served by the Westwood Hills Improvement Association, which provides services and amenities to the Community, including landscaping, snow removal, and general maintenance. The Association is funded by semi-annual assessments paid by property owners within the Community. Generally, when a property is sold, the previous owner passes onto the new owner a certificate, issued by the Association, which represents both the right to benefit from the Association and the obligation to pay the assessments. The Sullivans paid the assessments from 1977 through 1983, but from thereafter refused to pay, arguing that they had never received a certificate from the previous owners and had never agreed to pay.

Issue 1: Was the obligation to pay the assessment in force, despite the Sullivans’ not having a certificate from the Association?

Yes. The court concluded the obligation was in force for three reasons. 1) The Sullivans’ title indicated both the existence of the Association and that the land was subject to certain restrictions. The court therefore found the title conveyed the obligation to pay the assessments and further that the Sullivans knew of it. 2) The court found the Community formed a “common scheme” of uniform restrictions applied to every lot, and that merely not having a certificate was an inadequate reason to say the Sullivans’ lot did not also come with the same restrictions as every other lot, which included the obligation to pay the assessments. 3) Finally, the court concluded that there was an implied-in-fact contract, meaning that Sullivans received a benefit from the Association, and were aware that they would receive this benefit before buying the lot, and therefore had necessarily agreed to pay for that benefit.

Issue 2: Did the Sullivans have to pay the assessment?

No. Since the obligation to pay the assessment passed through the land, and not personally through the Sullivans, the court found that the Sullivans could not personally be required to pay the assessment, but that it could only be collected as a charge against their property, giving the Association a right to take the assessments it is owed out of the proceeds of the sale of the Sullivans’ property.

Conclusion: The Appeals Court affirmed most of the lower court’s rulings, reversing only the determination that the Sullivans had to pay the assessment, finding instead that it could be collected as a charge against the property. (AE)

Sandman v. Quincy Mutual Fire Insurance

Appeals Court -- January 25, 2012

Facts: During a delivery of heating oil to her home in March 2004, Sandman’s basement was flooded with over one hundred gallons of oil when a delivery line burst. Sandman’s insurer, Quincy Mutual Fire Insurance Company (Quincy Mutual), agreed to cover the costs of the cleanup, but the policy did not cover the damage to Sandman’s personal belongings. Subsequently, Quincy Mutual hired an attorney, Frank L. Fragomeni, to recover its costs from the cleanup from the oil delivery business, Supreme Fuel and Energy (Supreme). Sandman also sought to sue Supreme, but claims that during her search, she was contacted by Fragomeni, who told her that he would represent her claims as well as Quincy Mutual’s against Supreme. Sandman claimed Fragomeni worked with her, representing himself as her attorney, until Fragomeni settled Quincy Mutual’s claim and then informed Sandman that he could not represent her because of the conflict of interest. Sandman claimed that at this point she was unable to sue Supreme because the statute of limitations had passed. Sandman claimed it was malpractice for Fragomeni to tell her he was her attorney.

Issue: Is Quincy Mutual liable for Fragomeni’s malpractice?

No. The court found that Fragomeni was not an employee of Quincy Mutual but was rather only an independent contractor. Further, since Fragomeni was an attorney, it was his professional responsibility to avoid committing malpractice. Based on these two findings, the court found that Quincy Mutual could not be liable for Fragomeni’s malpractice.

Conclusion: The Appeals Court affirmed the lower court’s ruling. It found that in an attorney-client relationship, the client could not be liable for the attorney’s malpractice.

Commonwealth v. Juan Mejia

Supreme Judicial Court -- January 24, 2012

Procedural History: Defendant appeals from conviction of three indictments of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.  Defendant argues that the trial court erred in three ways: (1) in allowing the Commonwealth to present evidence of the defendant’s demeanor (2) in denying defendant’s motion for a required finding of not guilty and (3) in denying motion for a mistrial because material was erroneously sent to the jury room.  Defendant further asks the Court to exercise its power under G.L. c. 278, § 33E to reduce the verdicts to murder in the second degree. 

Holding: Conviction affirmed; there is no merit to defendant’s claims of error.

Facts: Three victims, a woman and her two daughters aged 9 and 6 were found dead in their fifth floor apartment at 94 Pearl Street, Springfield on December 12, 2007.   The medical examiner testified that the bodies showed “decomposition of a significant degree” and estimated that the woman had been dead for at least four to five days.  The woman died of multiple stab wounds, throat slash to the spine, and blunt force trauma to the head.  The older child died of manual strangulation.  The younger child died of asphyxia caused by a pair of tights being forced into her throat.  DNA of the defendant matched the minor DNA profile on the ropes found on the older child’s wrists and the “handler” DNA from the bruises on her neck.

Defendant was the husband and stepfather of the victims, and lived with them.  On December 8 and 9, 2007, defendant was seen outside the apartment building dressed inappropriately for the cold, shaking from the cold, talking to himself and eating food from trash bags.  He stood outside the front door of his apartment for several hours.  He sat outside the window of one tenant’s apartment, repeatedly tapped on the window, and called the older daughter’s name.  Another tenant called the police when the defendant tried to enter her apartment.  The police called an ambulance.  The defendant told the ambulance attendants that he had not taken his antipsychotic medication for approximately twenty days.

After the bodies were discovered, the defendant was questioned and arrested that evening at a hospital.  He had small cuts and abrasions on his fingers and hands, blood stain on his toenail, and blood stains on his clothing that tested positive for his and someone else’s blood. 

Issue #1: Should evidence of defendant’s demeanor when he was questioned at the hospital be excluded because he was not given Miranda warnings?

No.  “Miranda warnings are only necessary when one is subject to ‘custodial interrogation.’” Commonwealth v. Morse, 427 Mass. 117, 112 (1998) quoting Commonwealth v. Jung, 420 Mass. 675, 688 (1995).  The defendant was not in custody because he voluntarily accompanied the detective to a neutral location: the conference room at the hospital.  While the detective knew the police were seeking an arrest warrant for the defendant and knew there was probable cause to arrest, these suspicions were never communicated to the defendant.  Moreover, there was no interrogation because the questioning was brief and not aggressive. The detective made one statement that the police wanted to speak to the defendant about what “happened on Pearl Street” and asked one question of whether the defendant knew why he was in the conference room.  The statement about Pearl Street was merely an introductory remark, and because the defendant was not in custody, whether the subsequent question was asked to elicit an incriminating response is irrelevant.  

Issue #2: Should the defendant’s motion for required findings of not guilty have been granted because the Commonwealth’s entire case was based on defendant’s bizarre behavior and the handler DNA on the older daughter’s neck?

No.  The Commonwealth’s evidence “may be entirely circumstantial, and . . . the inferences a jury may draw from the evidence ‘need only be reasonable and possible and need not be necessary or inescapable.’” Commonwealth v. Linton, 456 Mass. 534, 544 (2010), quoting Commonwealth v. Lao, 433 Mass. 770, 779 (2005).  There was sufficient evidence here that the defendant, rather than a stranger, killed the victims because there was no indication of forced entry or burglary into the apartment.  Circumstantial evidence further supported a reasonable inference that someone close to the victims committed the murders.  There was also sufficient evidence that the murders were committed with deliberate pre-meditation because the victims were all bound and the methods of murder all required time.  Finally, there is sufficient evidence for the jury to conclude that a murder was committed with extreme atrocity or cruelty due to the injuries and nature of killings suffered by the victims.

Issue #3: Did the trial judge abuse his discretion in denying defendant’s motion for new trial because the jury was inadvertently exposed to an unsigned handwritten Spanish note outside the record?

No.  There was no abuse of discretion in denying the defendant’s motion for a new trial because proper procedures were followed.  The judge’s individual voir dire of each juror as required in Massachusetts upon jury exposure to non-record material to ascertain prejudicial effect revealed that no juror was fluent in Spanish and, of the seven jurors who saw the note and the two jurors who overheard some discussion about the note, none was able to determine its content.  The judge also replaced the one juror that stated she could not remain impartial with the alternate juror.  

Issue #4: Should the Court, pursuant to its plenary power under G.L. c. 278, § 33E reduce the verdicts to murder in the second degree because the defendant was psychotic?

No.  The Court is not persuaded by the record that the defendant was suffering from a mental impairment that would justify reducing the verdicts.  Further, there has been no post-trial motion charging ineffective assistance of counsel, no evidence concerning reasons why trial counsel did not pursue a defense of mental impairment, and no development of any evidence of the alleged impairment. (LP)

Town of Dartmouth v. Greater New Bedford Regional Vocational High School

Supreme Judicial Court -- January 24, 2012

Procedural History:  The towns of Dartmouth and Fairhaven appeal dismissal for failure to state a claim upon which relief could be granted under Mass. R. Civ. P. 12(b)(6) of their complaint and cross claim challenging the funding obligations imposed by the Education Reform Act of 1993.

Holding: Dismissal properly granted.  The Education Reform Act overrides the parties’ previous regional agreement regarding school district funding.  Further, Dartmouth and Fairhaven, as political subdivisions of the Commonwealth, lack standing to challenge the constitutionality of the Education Reform Act.

Facts: In 1971, a Special Act, St.1971, c. 428, authorized Dartmouth, Fairhaven and other municipalities to create a “vocational regional school district.”  New Bedford, Dartmouth, and Fairhaven followed Act procedures to establish a school district and approved an agreement pursuant to the Act among the member municipalities (“regional agreement”).  The regional agreement provided that all operating costs, except those described as “special operating costs,” were to be apportioned to according to each municipality’s student enrollment.  The Act further provided that “[n]o municipality in the regional school district shall be liable for any obligation imposed on any other municipality in said district by authority of this act, or of any agreement thereunder, any other provision of law to the contrary notwithstanding.”  Id. at § 12.

In 1993, the Legislature enacted the Education Reform Act, which defined “a foundation budget and a standard of local funding effort applicable to every city and town in the [C]ommonwealth.”  G.C. c. 70, § 1.  The formula for calculating each municipality’s contribution to the foundation budget for every school district is wealth based, requiring more affluent municipalities to make larger contributions than less affluent municipalities.  Following the Education Reform Act, from 2003 to 2008, Dartmouth has contributed over $4.7 million more than it would have under the regional agreement, Fairhaven over $3.3 million more, while New Bedford has contributed $7.1 million less.  

Issue #1: Does the Education Reform Act override the method set forth in the regional agreement for apportioning the expenses of the school district among the member municipalities?

Yes.  The Education Reform Act is comprehensive legislation designed to improve public education in every school district throughout the Commonwealth by, among other things, better public school funding.  The language of the Education Reform Act stating “[n]otwithstanding the provisions of any regional school district agreement, each member municipality shall increase its contribution to the regional district each year by the amount indicated in the district’s share of the municipality’s minimum regional contribution in that fiscal year,” G.L. c. 70,  § 5, is explicit intent by the Legislature to override prior legislation providing for school funding.  Implicit repeal of a prior law exists when the earlier statute, as is the case here, “is so repugnant to and inconsistent with the later enactment covering the subject matter that both cannot stand.”  Doherty v. Commissioner Admin., 349 Mass. 687, 690 (1965).

Issue #2: Do Dartmouth and Fairhaven have standing to challenge, on constitutional grounds, the public school funding obligations imposed on the member municipalities by the Education Reform Act?

No.  A town is a political subdivision of the Commonwealth, and governmental entities lack standing to challenge the “acts of their creator State,” Spence v. Boston Edison Co., 390 Mass. 604, 610 (1983).  Further, Dartmouth and Fairhaven here do not fall into the several limited exceptions to the “prohibition on constitutional challenges by governmental entities to acts of their creator State.” Id. (LP)

Commonwealth v. Podgurski

Appeals Court -- January 24, 2012

Facts: The Defendant was arrested after selling oxycodone to an undercover detective. On the day before the arrest, a police informant arranged for the detective to meet with and purchase the pills from the Defendant. The Defendant was convicted for trafficking in oxycodone, possession with intent to distribute oxycodone, and simple possession of hydrocodone and marijuana. At trial, the Defendant’s attorney attempted to introduce evidence regarding the prior relationship between the informant and the detective, regarding the informant’s criminal history, and regarding the Defendant’s state of mind, all of which would have amounted to an entrapment defense. The Defendant’s attorney also objected to the detective’s use of a police department scale to demonstrate, at the trial, the weight of the pills taken as a result of the search of the Defendant’s car and home.

Issue 1: Should the trial court have permitted evidence regarding a possible entrapment defense?

Yes. The court found that while the trial judge has great discretion in choosing whether to permit evidence, the threshold for raising an entrapment defense is low. Therefore, the court found that the trial court should have allowed the Defendant’s evidence regarding whether the informant was a government agent with a criminal past and whether the informant pressured and induced the Defendant into making a sale to the detective that he would not otherwise make, and also evidence regarding the Defendant’s state of mind at the time. The court emphasized that whether the evidence was believable was an issue only for the jury.

Issue 2: Were the pills properly weighed during the trial?

No. The court found that while the Detective “zeroed” the scale, he did not calibrate it or show objectively that it would produce accurate results. Further, the court found that there was no evidence the scale had ever been objectively tested to show that its results were accurate, and that at least this minimum level of reassurance was necessary.

Conclusion. The Appeals Court reversed the Defendant’s convictions for trafficking in oxycodone and possession of oxycodone with intent to distribute because the trial court failed to allow the Defendant to present evidence for an entrapment defense and permitted the use of a scale whose accuracy was unverified. The Appeals Court affirmed the convictions for possession of hydrocodone and marijuana. (AE)

Adoption of Cadence

Appeals Court -- January 24, 2012

Facts: Cadence was born in October 2008 to a mother and father who both habitually used heroin and cocaine, have been homeless, and had extensive criminal histories. Upon her birth, Cadence was placed in custody of the Department of Children and Families, hospitalized for drug withdrawal treatment, and then placed in foster care. Over the next few years, Cadence spent the majority of her life in government custody. In February 2010 she was placed at the home of relatives of the mother, including Mark, her great uncle, and his daughter Amanda. Amanda was still supported by her parents. At a hearing, Mark testified he was willing to become Cadence’s guardian but not willing to adopt her. Amanda testified she was also willing to become Cadence’s guardian but did not testify she was ready to adopt her. The Juvenile Court terminated the parents’ rights to consent to adoption and named Amanda as the sole adoptive parent.

Issue 1: Did the court properly terminate the parents’ rights?

Yes. On appeal, the court found there was ample evidence of drug abuse and criminality such that Cadence’s parents were not fit and that terminating their rights was in Cadence’s best interest.

Issue 2: Did the court properly name Amanda as the sole adoptive parent?

No. On appeal, the court determined that, while the judge did not necessarily have to adopt a plan put forward by the parties at interest, the final ruling must reflect Cadence’s best interests. The court found there was no evidence that Amanda was willing to care for Cadence as the sole adoptive parent and that, considering that Amanda still lived at home and depended on her own parents, it was unlikely she could support Cadence on her own. Therefore, the court concluded that there was no evidence that making Amanda the sole adoptive parent was in Cadence’s best interest.

Conclusion: The Appeals Court affirmed the termination of the parents’ rights but reversed the naming of a single adoptive parent who herself was still dependent on her parents’ support and who had not expressed interest in becoming the sole adoptive parent. (AE)

Commonwealth v. Brandon Callender

 Appeals Court -- January 23, 2012 

Facts: In 2008, the defendant was involved in a brawl where the victim was wounded by a knife and resulted in his death. During a police investigation of the incident, the defendant was arrested on a warrant. Detective Cudmore advised the defendant of his Miranda rights when he was brought into booking. The defendant told the detective that he invoked his right of silence. Hence, the detective did not ask the defendant anymore question with the exception of few questions.

Approximately half an hour later, Trooper Lima and Detective Bettencourt entered the booking room. Detective Cudmore informed them that the defendant had invoked his right of silence. Lima and Bettencourt approached the defendant, who was chained to the bench, and introduced themselves. They asked the defendant whether he wished to speak. The defendant, being unfamiliar with either of the officers, said he did not care. The officers consequently made more inquiries, which Lima labelled as “admin things”. After the defendant answered a few more inquiries, Bettencourt then rapidly recited the Miranda warnings to the defendant. He was then asked to sign the document to indicate that he understood the warnings. However, he was never given an opportunity to read his rights. The officers then went on questioning the defendant about the homicide for about three hours.

The defendant filed a motion to suppress the statement made during those hours, arguing that his invocation of his rights to remain silence was not scrupulously honored and was a violation of the Fifth Amendment of the United States Constitution. The motion judge granted the suppression and the Commonwealth filed an interlocutory appeal.

Issue #1: Whether or not the defendant’s statement made during police interrogation was subjected to suppression.

Yes. In Miranda v. Arizona, the U.S. Supreme Court held that once a suspect invoked his rights of silence, his rights needed to be scrupulously honored before he is re-approached for interrogation. The court used the five factors test in Michigan v. Mosley to determined whether the rights of the defendant was scrupulously honored.

Under the Mosley test, the first factor focused on the time elapsed between interrogations. The motion judge found that there was approximately thirty-five minutes elapsed between the defendant’s invocation of silence and the re-approached interrogation. In Mosley, the minimum time duration was not set but the Massachusetts courts determined based on the Mosley factors that thirty minutes or less was the duration when a defendant’s Miranda right was not scrupulously honored.

The second factor focused on the venue where the subsequent interrogation took place and who conducted the interrogation. In Mosley, the defendant was questioned by different officers and in a different venue. The defendant here was questioned by different officers but remained in the same booking area. Therefore, the motion judge found in parts toward the defendant and in parts for the Commonwealth.

The third factor focused on whether the defendant was given a fresh set of Miranda warnings prior to the subsequent interrogation. In Mosley, the defendant was given a fresh set of warnings at the outset of the subsequent interrogation. In this case, the defendant was given his rights after some questionings. The motion judge found that the officers gave the warnings creating the impression that the defendant already waived his rights. The appeal courts agreed.

The fourth factor focused on whether the subsequent interrogation concerned the same subjects as the prior interrogation. In this case, no one argued that the defendant was being charged with any other crimes than the homicide. The defendant had no reason to believe that he would be questioned for a different charge at the subsequent interrogation which would require him to invoke his rights again thirty minutes later. The motion judge found that the evidence weighed against the Commonwealth. The Appeals Court agreed.

The final factor focused on the zealousness of the police towards the defendant at the subsequent interrogation. In Mosley, the court required officers to be respectful to one’s rights when in custody. The officers in this case were aware of the defendant’s invocation of his rights. Yet, they approached the defendant in a manner that was not respectful of his invocation.

Therefore, the court affirmed the motion judge ruling for motion to suppress. (YN)

Commonwealth Ronald Billings

Supreme Judicial Court -- January 19, 2012

Procedural History: Defendant appeals from jury convictions in 2006 of distribution of cocaine and drug offense in a school zone, challenging admission of a drug certificate without chemist testimony in violation of defendant’s right of confrontation under Melendez-Diaz v. Massachusetts, 129 S.Ct. 2532, 2542 (2009).  The Appeals Court affirmed convictions and held the admission was harmless beyond a reasonable doubt.

Holding:  Conviction reversed, case remanded for new trial.  Commonwealth’s evidence in this case was not so overwhelming as to nullify the effect of the erroneously admitted certificate.

Facts: Undercover detective Robert John Morrissey, Jr. stopped his car near a Brockton bar where a group of men were standing.  The defendant approached, made eye contact, and agreed to get “a twenty of rock,” which means twenty dollars of crack cocaine.  Defendant left the car and conversed with people in the group.  He returned with his hand to his mouth, spit a “piece of white rock” out of his mouth, and handed the “rock” to the detective.   Morrissey then gave the defendant twenty dollars.

At the police station, Morrissey “field tested [the substance],” sealed, labeled and secured the bag to be analyzed at the State laboratory.  At trial, there was no testimony regarding the result of the field test.  Morrissey identified the certificate of analysis from the State laboratory, read the certification to the jury stating the substance was cocaine, and the certificate was admitted in evidence.

Morrissey received three-days of training at the police academy, a three-day street crime seminar, a two-week course with the Federal Drug Enforcement Agency.  He also attended an annual three-day seminar by a narcotics task force on Cape Cod.  Morrissey had been working undercover for five years, been in law enforcement for eleven years, and had participated in thousands of arrests.  He testified that the substance he purchased from the defendant was “crack” cocaine, but did not testify as to having any expertise in identifying cocaine.

Issue:  Was admission of the drug certificate harmless beyond a reasonable doubt?

No.  The Commonwealth relied primarily on the certificate to prove that the substance was cocaine.  Morrissey did not testify as to his expertise in narcotics identification or as to the results of the field test.  Given such circumstances, admission of the certificate cannot be said to be harmless beyond a reasonable doubt.  See Commonwealth v. Fluellen, 456 Mass. 517, 527 (2010) (where certificate “formed a tainted ‘core’ of evidence from which the rest of Commonwealth’s case radiated,” admission not harmless beyond reasonable doubt). (LP)

Commonwealth v. Joshua King

Supreme Judicial Court -- January 19, 2012

Procedural History: Defendant appeals from jury convictions in 2006 of distribution of cocaine and drug offense in a school zone, challenging admission of a drug certificate without chemist testimony in violation of defendant’s right of confrontation under Melendez-Diaz v. Massachusetts, 129 S.Ct. 2532, 2542 (2009).  The Appeals Court affirmed convictions and held the admission was harmless beyond a reasonable doubt.

Holding:  Conviction reversed, case remanded for new trial.  Commonwealth’s evidence in this case was not so overwhelming as to nullify the effect of the erroneously admitted certificate.

Facts: Undercover detective Robert John Morrissey, Jr. stopped his car near a Brockton bar where a group of men were standing.  The defendant approached, made eye contact, and agreed to get “a twenty of rock,” which means twenty dollars of crack cocaine.  Defendant left the car and conversed with people in the group.  He returned with his hand to his mouth, spit a “piece of white rock” out of his mouth, and handed the “rock” to the detective.   Morrissey then gave the defendant twenty dollars.

At the police station, Morrissey “field tested [the substance],” sealed, labeled and secured the bag to be analyzed at the State laboratory.  At trial, there was no testimony regarding the result of the field test.  Morrissey identified the certificate of analysis from the State laboratory, read the certification to the jury stating the substance was cocaine, and the certificate was admitted in evidence.

Morrissey received three-days of training at the police academy, a three-day street crime seminar, a two-week course with the Federal Drug Enforcement Agency.  He also attended an annual three-day seminar by a narcotics task force on Cape Cod.  Morrissey had been working undercover for five years, been in law enforcement for eleven years, and had participated in thousands of arrests.  He testified that the substance he purchased from the defendant was “crack” cocaine, but did not testify as to having any expertise in identifying cocaine.

Issue:  Was admission of the drug certificate harmless beyond a reasonable doubt?

No.  The Commonwealth relied primarily on the certificate to prove that the substance was cocaine.  Morrissey did not testify as to his expertise in narcotics identification or as to the results of the field test.  Given such circumstances, admission of the certificate cannot be said to be harmless beyond a reasonable doubt.  See Commonwealth v. Fluellen, 456 Mass. 517, 527 (2010) (where certificate “formed a tainted ‘core’ of evidence from which the rest of Commonwealth’s case radiated,” admission not harmless beyond reasonable doubt). (LP)

Commonwealth v. Jason Amaral

Appeals Court -- January 18, 2012

Facts: A man brandished a knife and demanded a Walgreen cashier, Eileen Dumont to give him all the money in the register. Dumont refused and the man walked away. The man was wearing a dark colored coat with light colored hood and sleeves. Officers Niles reported to the scene and interviewed Dumont and Syde, who was a customer standing behind the suspect. Both witnesses gave similar description about the suspect, which matched what Niles saw on the surveillance video. Officer Niles and Officer Copsetta spotted the defendant at a gas station and he had a knife in his pocket. They brought him back to the store for a show-up and Dumont identified the defendant as the man who robbed her.

The defense hired a private investigator, Richard Ferreira, to interview Dumont. Ferreira claimed that Dumont told him she had never identified the defendant. The defense filed a motion to dismiss the indictment to pursant. Motion was denied. Defense then filed a motion to suppress the evidence regarding the showup identification. The motion judge denied the motion after finding the officers’ testimonies credible. Officer Niles put together a photo array at the request of the prosecutor. The photo array was never used nor revealed during the pretrial discovery. Defense regarded that as a serious discovery violation and argued for a continuance, a mistrial, exclusion of the showup evidence, and recusal of the prosecutor. All motions were denied.

Issue #1: Whether or not the showup procedure to identify the defendant was unnecessary suggestive.

No. The police had a good reason to conduct the showup which was in the immediate aftermath of an attempted robbery. If the witness would have told the police that the defendant was not the person, the police could have released the defendant and continued to look for the right person.

Issue #2: Whether or not the prosecutor failed to timely disclose the unused photographic array was a violation under Brady v. Maryland.

No. The defense must be able to prove that the unused photo had any exculpatory value before prevailing in a claim that the prosecution failed to disclose exculpatory evidence. The defense argued that the photo array displayed doubt in the eyewitnesses’ ability on the prosecution side. The personal feelings of the prosecutor regarding the evidence were irrelevant. (YN)

Meridian At Windchime, Inc. v. Earth Tech, Inc.

Appeals Court -- January 17, 2012

Facts: The plaintiff was the developer of a subdivision of a town known as Windchime. The defendant was hired by the town board to perform inspections and reviews of the subdivision development. There was no contract between the plaintiff and the defendant. Throughout the duration of the development, defendant kept in close communications with the plaintiff. Plaintiff was aware of all the daily written statements regarding the plaintiff’s contractors. Towards the end of the development, it was discovered that plaintiff’s contractors had improperly installed some underground infrastructures. The ground had to be dug up to redo the contractors’ works. Plaintiff claimed that if the defendant would have done the inspection properly and in a timely fashion, far less cost would have been spent to correct the contractors’ works.

Issue #1: Whether or not the defendant owed a duty of care as a professional under contract to a third party, the town.

No. Under the Craig doctrine, whether a consequence is foreseeable is measured by an objective standard and calls for consideration whether the injured party's reliance on the services performed by the negligent party was reasonable. In this case, the defendant had no responsibility for the methods or the procedures of construction chosen by the contractor. In addition, the plaintiff hired its own project engineer for the town. While the engineer failed to honor the contractual obligation with the plaintiff this did not justify plaintiff’s reliance on the work performed by the defendant. (YN)

Guardianship of Mary Moe

Appeals Court -- January 17, 2012

Facts: Department of Mental Health filed a petition seeking Moe’s parents to be temporary guardians for the purpose of consenting to an abortion and a sterilization. Mary Moe was thirty-two years old, pregnant, and suffering from schizophrenia, schizoaffective and bipolar mood disorder. Moe claimed that she was not pregnant. The trial judge found that she was incompetent to make a decision about an abortion. The judge then appointed a guardian ad litem (GAL) to investigate and to submit a report. The judge also authorized funds for an expert to investigate and submit a report regarding the necessity of the abortion. GAL submitted a report noting that Moe’s consulting physician had determined the risk of stopping medication while Moe was pregnant was higher then continuing the medication. However, no report was submitted by an expert nor was any hearing held. Moe had also stated that she would not like an abortion. Without any hearing, the judge ordered that Moe’s parents would be her guardian and she would be performed an abortion. Additionally, the judge directed the medical facility which performed the abortion to sterilize Moe.

Issue #1: Whether or not the ordered sterilization sua ponte and without notice was a violation of due process.

Yes. An incompetent person must be given an adequate notice, an opportunity to be heard, a determination on the issue of substituted judgement and the right to appeal because sterilization is a deprivation of the right to reproduce.

Issue #2: Whether or not there was sufficient evidence to show that Moe was incompetent.

Yes. Moe denied multiple times that she was pregnant. That was enough to display that she was incompetent to make a decision regarding the issue on abortion.

Issue #3: Whether or not the trial court was required to hold an evidentiary hearing to determine whether Moe would have an abortion if she was competent.

Yes because the substitute standard would apply. The standard required a determination whether Moe would have an abortion if she were competent. It was not for the court to decide what would be the best decision but  rather what decision would be made by the incompetent person if she were competent. (YN)

TIMOTHY JONES vs. COMMONWEALTH

Supreme Judicial Court -- January 13, 2012

Procedural History:

The Defendant was convicted of numerous offenses including armed kidnapping with sexual assault and received a sentence of twenty-five to thirty years in State Prison.  Petitioner sought review of his sentence with the Appellate Division of the Superior Court, arguing that the sentence was unlawful under G.L. c. 265 § 6 because it exceeded the maximum number of years under the statute.  Petitioner also filed a motion for release from unlawful restraint arguing that a thirty year sentence for kidnapping was unlawful under Mass. R. Crim. P. 30 (a).  Both filings were denied without prejudice and he filed notices of appeals from both denials.

Issue:

Did the court abuse it's discretion by denying the Defendant's motions?

Holding:

No. The judge did not abuse his discretion in denying the motions without prejudice and allowing the sentence to stand.  The Court also held that the petitioner failed to demonstrate that he had no other avenue of appellate review, since he can still challenge his sentence in his direct appeal and by appealing the denial of his Rule 30 motion.

Judgment:

Affirmed. (HT)

COMMONWEALTH vs. BRANDON M. CLARKE

Supreme Judicial Court -- January 13, 2012

Procedural History:

A motion to surpress was granted by the trial court in regards to post-miranda incriminating statements made by the defendant.  The Commonwealth's leave to appeal from the allowance was granted by the SJC.

Issues:

1)Whether the Defendant invoked his right to remain silent under the Fifth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights.

2)Whether the police scrupulously honored the Defendant's right to silence.

Facts:

Defendant was arrested on October 10th 2008 by MBTA transit police for an indecent assault and battery that had occurred at a subway station several weeks earlier.  The two police officers who affected the arrest placed the Defendant in an interrogation room at MBTA headquarters where the Defendant was informed that the conversation was to be video recorded. 

The Defendant was presented with a waiver form and signed it without reading it.  One of the interrogating officers verbally informed the defendant of his rights.  The defendant began to ask questions about his rights, specifically if he was required to speak with police.  The Defendant then stated that he wanted to go home.  One of the interrogating officers asked the Defendant " So you don't want to speak with us?" to which the Defendant responded by shaking his head back and forth in a negative fashion.  One officer testified at the motion hearing that he understood that to mean that the Defendant was invoking his right to silence.  The other officer testified that she was not clear on whether the Defendant meant to invoke his right to silence or not.  The questioning continued and the Defendant made incriminating statements which the Commonwealth sought to use against him at trial.

Holding:

The defendant unambiguously asserted his right to silence, and the police did not scrupulously honor that right to silence.  Although the Defendant did not meet the Federal Thompkins standard for invocation of the right to silence, he sufficiently invoked that right under Article 12 of the Massachusetts Declaration of Rights.

Rule of Law:

The Court declined to adopt the Thompkins approach which requires that the suspect must invoke his right to silence with the "utmost clarity", and that he must actually speak.  A suspect's failure to assert his right to silence with the utmost clarity does not make the invocation ambiguous, and a Defendant may assert his right to silence with nonverbal expressive conduct.

Reasoning:

In dealing with the invocation standard the Court relied on Commonwealth v Marrero, 436 Mass. 488, 496 (2002), which recognized that nodding and shaking one's head in response to direct questions constitutes "deliberate nonverbal expression".  Here, the defendant shook his head, which was sufficiently communicative to invoke his right to silence under Article 12.

The court found that the police did not scrupulously honor the Defendant's right to silence because they did not immediately cease questioning after the unambiguous assertion of the right.

Policy:

If a suspect asserts his right to silence, and perceives the police are ignoring the invocation of that right, he may see additional assertions of that right as futile and confession as the only way to end the interrogation.  Many suspects may not reassert their right to remain silent more clearly a second time, if their assertion was not honored the first time.

Judgment:

Motion to suppress affirmed. (HT)

Passatempo, trustee, & others v. McMenimen, III, & others

 Supreme Judicial Court -- January 12, 2012

FACTS: Plaintiff invested a substantial portion of his retirement benefits in successive life insurance policies that he purchased through his nephew, an insurance agent. Initially, Plaintiff had a $140,000 life insurance policy with John Hancock Mutual Life which he held in trust. Defendant, McMenimen, who was his agent and nephew, advised Plaintiff to supplement this policy with an additional policy from one of two companies without disclosing his representative relationship to them. Plaintiff followed the advice and obtained a policy for $350,000 from Mutual of New York. Defendant later took a job with New England Advisory Group (NEAG), which generated its profits mainly from the sale of Provident Mutual (PM) (later acquired by Nationwide) and compensated its agents based on their ability to generate commissions. Defendant immediately advised Plaintiff to transfer his policies to NEAG, providing him with an application for a $500,000 policy, and convincing him to use the surrender values of the other policies to fund the new one. However, the application was subsequently rejected by PM and Defendant instructed the insurer to issue a policy for $200,000 instead with premiums 250% above the standard rate, without consulting the Plaintiff. Defendant never disclosed his relationships to his employer or the Plaintiff and assured the Plaintiff that the final policy provided death benefits of $500,000. The Plaintiff brought several actions against the insurance agent, the agent's supervisor, agent's employer and the insurer that issued the policy. The claims were reduced to fraud, negligence, negligent misrepresentation, and violations under G.L. c. 93A, in two prior proceedings. The Superior Court entered summary judgment dismissing claims against an insurer, and, following a jury trial on common law claims and a bench trial on statutory claims, entered judgment in favor of plaintiffs. Parties appealed and cross-appealed.

ISSUE 1: Whether the plaintiffs' claims against the insurance agent, his former employer, and the insurers that issued policies were properly pleaded in tort and under G.L. c. 93A, as opposed to the statute governing insurance contracts.

Yes. Although the gravamen of the plaintiffs' claims falls within G.L. c. 175, §181, governing insurance contracts, the Plaintiff does not seek rescission of an issued policy, or adjudication of his rights under an insurance contract. Plaintiff contends that the defendants' fraud or negligence deceived him into believing that he was insured for $500,000 even though the policy reflected a death benefit of only $200,000. The agent was the insured's nephew who concealed his relationship with the insurer that issued the policy, and concocted an elaborate explanation for the discrepancy in the documents. The statute, allowing an insured to recover from insurance companies, premiums paid on a life or endowment insurance policy when the policy was procured by misrepresentation of policy terms, was not intended to create an exclusive remedy that would preempt civil remedies. The Court inferred from the legislative history that one of the primary purposes in amending §181, was to heighten the statute's deterrent effect. Therefore, it seemed unlikely that the Legislature intended to insulate agents from common law claims by making rescission the exclusive civil remedy against insurance companies for those who have been induced to purchase life insurance by fraud.

ISSUE 2: Whether the claims are timely under G.L. c. 175, § 181, and G.L. c. 260.

Yes. The plaintiffs' common-law claims allege misrepresentation based in tort, with a three-year limitation period provided by G.L. c. 260, § 2A, and are susceptible to tolling. Therefore, the claims are timely as to the insurance agent, but not as to the other defendants. However, because the limitation period for claims brought under G.L. c. 93A, is one year longer than the limitation period for tort claims, the Nationwide defendants have not shown that the plaintiffs' G.L. c. 93A, claim against them is time barred.


ISSUE 3: Whether the judge erred in calculating damages using a benefit of the bargain basis and improperly awarding treble damages.

No. The economic loss doctrine states that purely economic losses are unrecoverable in tort and strict liability actions in the absence of personal injury or property damage; but this doctrine does not apply to loss incurred through misrepresentation. The usual rule for determining damages for misrepresentation is that the injured party receives benefit of the bargain damages, particularly when an insured obtains a misrepresented policy that is of less value than what he was led to believe. Treble damages were properly awarded under G.L. c. 93A. Although the statute limits recovery with regard to any security to the amount of actual damages, the Uniform Securities Act, as enacted in Massachusetts, explicitly excludes insurance policies from the definition of a security.

ISSUE 4: Whether Plaintiff reasonably relied on agent's misrepresentations.

Yes. Case law expressly distinguishes between cases in which plaintiffs rely on oral statements contradicted by written agreements, and claims where defendants conceal or otherwise “lull the plaintiffs into ignoring” obvious red flags. In this case, the jury heard evidence that the agent concocted an elaborate explanation why the documentation reflected a $200,000 death benefit instead of a $500,000. There was also evidence that the agent failed to disclose his relationship with the insurers to the plaintiff. Further, the Plaintiff was working with a trusted family member whom they had specifically sought out for unbiased advice as opposed to a party with adverse pecuniary interests.

Conclusion: The Supreme Judicial Court concluded that the Plaintiff’s claims were properly pleaded, timely, and susceptible to tolling against the agent and Nationwide, but not against the remaining defendants. The Court also concluded that the trial judge properly decided the damages against the agent, and correctly determined that the Plaintiff reasonably relied on the agent’s misrepresentations, but failed to provide sufficient notice under G.L. c. 93A, to one of the Defendants. (H.G.)

COMMONWEALTH vs. AARON D. DEAN-GANEK

 Supreme Judicial Court -- January 12, 2012

Procedural History:

Commonwealth appealed the denial of their petition

Issues:

Does the  Commonwealth have the authority to require a judge to vacate a defendant's guilty plea when the Commonwealth makes a charge concession as part of the plea agreement and the judge imposes a less severe sentence than was agreed to in the sentence recommendation?

Does a judge exercise executive powers in violation of art. 30 by imposing a lighter sentence than an agreed recommendation in a plea agreement?

Holdings:

The Commonwealth does not have the authority to require a judge to vacate a defendant's guilty plea even when the Commonwealth makes a charge concession and the judge imposes a less severe sentence than the one the Defendant agreed to.

A judge does not exercise executive powers in violation of article 30 by imposing a lighter sentence than an agreed recommendation in a plea agreement.

Facts:

The Defendant and two other men picked up the victim, an acquaintance, and drove him to an empty parking lot.  There, they attempted to rob him at knife point and the Defendant threatened to stab him if he did not give them any money.  The Defendant then beat the victim until he surrendered $220, after which the victim escaped by fleeing into the nearby woods.

The Defendant was charged by way of complaint with one count of armed robbery. The prosecution agreed to reduce the charge from armed robbery to larceny from a person if the Defendant pleaded guilty and accepted the recommended sentence of the Commonwealth, which was 2 years in the House of Corrections, with six months served and the remainder suspended for two years.  The judge accepted the plea and during the plea colloquy learned that the Defendant was a nineteen year old high school student with bipolar disorder, Asperger's syndrome, and attention deficit disorder. At the sentencing hearing it was made known to the judge that the Defendant had a substance abuse problem but no prior criminal record.  The prosecutor asked the judge to either impose the sentence recommendation made by the Commonwealth or reject the plea.  The judge proceeded to sentence the Defendant to a two sentence in the House of Corrections, the entire term of which was suspended for two years.  The prosecution filed a motion for the judge to vacate the guilty plea, and the judge denied the motion.

Reasoning:

12 (c) (5) of the Massachusetts rules, the judge must only accept or reject the plea or admission itself, and not the plea agreement unlike Fed. R. Crim. P. 11 (c) (3) which requires a  judge to accept or reject a plea agreement.

Judgment:

Case remanded for the entry of a judgment denying the Commonwealth's petition.

Dissent:

The judge violated Article 30 by modifying the plea agreement after the judge accepted the plea.  The Court should also have looked to the historical practice of attorneys expecting that their plea agreements are binding on the judge.  The majority's interpretation of Mass. R. Crim. Pro. 12 (c) (a) inappropriately interjects the judge in the plea bargaining process by recommending to prosecutors that they ask the judge whether or not he is likely to accept the plea bargain before allowing the defendant to plead guilty (HT)