Brendan Lopes v. Tonia Williams

Brendan Lopes and another (Tiffany Mendes) v. Tonia Williams
Appellate Division of the District Court: Southern Division
November 15, 2010
Docket No: 09-ADMS-40028

Tenant-Landlord, Security Deposit, Housing Assistance Corporation


       Brendan Lopes and Tiffany Mendes ("landlords") brought a summary process action to evict their tenant Tonia Williams ("tenant").  While the issue of possession was rendered moot at trial because tenant had already vacated the premises, the issues for the trial judge were limited to tenant's counterclaim for breach of warranty of habitability, breach of the covenant of quiet enjoyment, and violations of the security deposit law, G.L. c. 186, sec. 15B.  The trial judge found in favor of the landlords in the issues of security deposit, habitability, and quiet enjoyment and against the landlords in any other claim they had against tenant in the action.  The trial judge issued a memorandum of decision outlining his finding on the security deposit claims and justified his decision in the other matters as "I find no other claims or counterclaims for either party."

       The tenant appeals and argues that only $1,465.00 of her payments to the landlord should be viewed as security deposit funds, the judge erred in awarding damages to her based upon how the landlords handled her security deposit, and objects to the judge's failure to rule specifically on her request for rulings on her counterclaims.

       The Appellate Division affirms the trial judge's determination that tenant's security deposit was limited to $1465.00; vacates the trial court's decision on the tenant's security deposit claims and orders judgment for the tenant in the amount of $4,395.00; returns the case to the trial court for a determination of attorney's fee's; and orders a new trial on the tenant's counterclaims for breach of warranty of habitability, failure to provide utilities, and breach of covenant of quiet enjoyment.

Com v. Belmer, 10/14/10

Commonwealth v. Belmer, October 14, 2010

78 Mass. App. Ct. 62

Daye rule, Affidavits Submitted in Support of Abuse Prevention Orders, Prior Inconsistent Statements, Sufficiency of Evidence


The defendant was charged with assault and battery.  At trial, the mother of the victim sought to recant her claims made to obtain the abuse prevention order against the defendant, claiming that the defendant had accidentally hit the victim while talking with his hands instead of intentionally striking the victim.  The prosecutor sought and was allowed to introduce the mother’s prior testimony from the hearing for the abuse prevention order and the affidavit submitted in support of the order despite the defendant’s objection.  The judge later found the defendant guilty of assault and battery.  On appeal, the defendant challenged the extension of the rule established in Commonwealth v. Daye, 393 Mass. 55 (1984), which allows a prior inconsistent statement to be used substantively if the declarant is available for cross-examination, to include affidavits from a request for an abuse prevention order.  The defendant also challenged the sufficiency of the evidence for his conviction.

Com v. McIntosh, 10/8/10

Commonwealth v. McIntosh, October 8, 2010
78 Mass. App. Ct. 37



Sufficiency of the Evidence, Ineffective Assistance of Counsel


The defendant was convicted on three indictments: 1) possession of a firearm, second and subsequent offense, 2) possession of ammunition, and 3) possession of a loaded firearm.  On appeal, the defendant is claiming that the judge committed a reversible error by denying the defendant’s motion for a required finding of not guilty on the three indictments because the evidence was insufficient to convict him.  The defendant also claimed that his trial counsel was constitutionally ineffective.  The Court agreed that the defendant’s trial counsel was constitutionally ineffective and reversed the judgments, set aside the verdicts, and remanded the case to Superior Court for a new trial.

Com. v. LeBoeuf, 10/8/10

Commonwealth v. LeBoeuf, October 8, 2010
78 Mass. App. Ct. 45

Fourth Amendment, Warrantless Seizures, Random Stops, Administrative Inspections

The defendant was charged with operating a motor vehicle on a suspended license under G.L.c. 90, § 23.  The defendant claims that the random stops conducted by the Framingham Police Department’s “Truck Team” that were not based on reasonable suspicion of a violation were in violation of the Fourth Amendment to the United States Constitution.  The case was reported to the Court of Appeals by a judge of the District Court to answer the challenges to the stop presented by the defendant prior to the trial.  The Court of Appeals is permitted to review this case pursuant to Mass.R.Crim.P. 34 when the US Supreme Court or any of the appellate courts in MA have not considered the question.

Com v. Truong, 10/7/10

Commonwealth v. Truong, October 7, 2010
78 Mass. App. Ct. 28

Juvenile Record, Impeachment, Statutory Interpretation, Due Process

The defendant was charged with and later convicted of possession of ammunition without a firearm identification card under G.L.c. 269, § 10(h).  On appeal, the defendant challenged the impeachment of his credibility with his juvenile record.  The defendant also questioned whether spent shell casings were prohibited under the statute under which he was convicted.  Lastly, the defendant challenged the statute under which he was convicted as being vague and in violation of his due process rights under the United States and Massachusetts Constitutions.  The Appeals Court affirmed the conviction.

Com v. Banville, 8/13/10

Commonwealth v. Christopher Banville, August 13, 2010 
457 Mass. 530

Search and Seizure, Search Warrant Conflict of Laws, Expert Witness, Prior Convictions

The defendant was found guilty of first degree murder under theories of deliberate premeditation and extreme atrocity and cruelty, as well as larceny of a motor vehicle.  The defendant appealed his convictions claiming: 1) ineffective assistance of counsel for failing to file a motion to suppress evidence gained from buccal and genital swabs taken from the defendant pursuant to a Maryland search warrant, 2) Expert testimony was hearsay and inadmissible, and 3) that the judge erred by allowing the prosecutor to use evidence of the defendant’s prior criminal convictions to show a propensity to commit crime.  The SJC affirmed the defendant’s conviction and declined to reduce the degree of guilt.

Com v. Rodriguez, 8/9/10

Commonwealth v. Lionel Rodriguez (and a companion case, Commonwealth vs. Ryan Marshall), August 9, 2010 
457 Mass. 461

Peremptory Challenge, “Honest but Mistaken” identification, Photographic and Expert Testimony Admission, Accessory before the Fact Juror Instructions

A jury convicted Rodriguez of murder in the first degree on the theory of extreme atrocity or cruelty, and his codefendant Marshall was convicted of being an accessory before the fact to that murder also on a theory of extreme atrocity or cruelty.  Rodriguez argued on appeal (1) that the prosecutor improperly used a peremptory challenge to remove the sole Hispanic juror; (2) error in the failure to instruct the jury on an "honest but mistaken" identification as set forth in Commonwealth v. Pressley, 390 Mass. 617, 619-620 (1983); and (3) error in the admission of autopsy photographs and testimony of the medical examiner. Marshall argued (1) insufficiency of the evidence; (2) violation of due process; (3) error in the judge's instructions to the jury; and that the SJC exercise their authority under G.L. c. 278, § 33E, to reduce his conviction. The SJC found that errors in the admission of autopsy photographs and testimony of the medical examiner created a substantial likelihood of a miscarriage of justice as to Rodriguez’s conviction of murder in the first degree on a theory of extreme atrocity or cruelty, and reduced his conviction to murder in the second degree. Because there was insufficient evidence to sustain Marshall's conviction as an accessory before the fact, the SJC reversed his conviction and set aside the verdict.