Com v. Arias

Commonwealth v. Jorge Arias
Massachusetts Court of Appeals
December 15, 2010
Docket No. 09-P-1792

Larceny, Assault by Means of a Dangerous Weapon, In-Court Identification, Special Verdict Slip


The jury found the defendant guilty for larceny over $250, assault by means of a dangerous weapon, reckless operation of a motor vehicle, and failure to stop for a police officer.  The defendant appealed this decision, arguing that the absence of a special verdict slip for the charge of assault by means of a dangerous weapon created a miscarriage of justice; that there was insufficient evidence to support his conviction of assault by means of a dangerous weapon; and that the judge abused his discretion in denying his request for a "non-suggestive" in-court identification procedure.

Com v. Cornelius

Commonwealth v. Clint A. Cornelius
Massachusetts Court of Appeals
December 10, 2010
Docket No: 08-P-1655

Firearms, Firearms without License


Superior Court judge decided three questions of law that are the topic of the appeal:
       1)  Does G.L. c. 269, sec. 10(a) require proof that a defendant "carried" a firearm?;
       2)  Does the satisfaction of the firearm identification card exception in G.L. c. 140, sec. 129C(j)   satisfy the firearm possession exemption in G.L. 269, sec. 10(a)(4) by itself?; and
       3) Whether satisfaction of the firearm identification card exception in G.L. c. 140, sec. 129C(j) is a defense for violation of G.L. c. 269, sec. 10(m)?

Com v. Hadley

Commonwealth v. Dennis Hadley
Massachusetts Court of Appeals
December 8, 2010
Docket No. 09-P-1177

Motion to Suppress, Voluntariness of statement, Miranda waiver, Involuntary manslaughter, battery


A jury in the Superior Court found the defendant guilty of involuntary manslaughter by battery.  Defendant appeals the verdict on the grounds that there was insufficient evidence to support his conviction and the judge wrongly refused to suppress two separate sets of statements: oral and written statements made shortly after the battery and oral statements made two years after the incident.

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.

Com v. Dargon, 7/29/10

Commonwealth v. Joshua Dargon, July 29, 2010

457 Mass. 387

Rape, Indecent Assault and Battery, Admissibility of Records challenged under G.L.c. 233 § 79, First Complaint, Closing Argument, Ineffective Assistance of Counsel

The defendant was found guilty of aggravated rape, indecent assault and battery on a person over the age of fourteen, assault and battery, and assault and battery by means of a dangerous weapon.  The defendant appeals his convictions claiming that evidence in written form that was part of the sexual assault evidence kit included statements made by the victim that should not have been allowed, that the prosecutor’s closing argument was improper, and that his counsel was ineffective.  The SJC affirmed the defendant’s convictions.

Com v. Tlasek, 7/22/10

Commonwealth v. Paul J. Tlasek (No. 1), July 22, 2010

Assistance of Counsel, Waiver of Constitutional Rights

After a jury trial in the Superior Court, the defendant was convicted of trafficking in cocaine, and trafficking in cocaine in a school zone. The Appeals Court reversed these convictions in accordance with Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). The reasoning for the reversals are contained in a companion memorandum. For purposes of a potential retrial, the Appeals Court separately addressed an evidentiary claim in this opinion. The defendant argued that incriminating statements he made to the Canton police should have been suppressed as a violation of his right to counsel under the 6th Amendment to the US Constitution. The Appeals Court affirmed the denial of the defendant's motion to suppress.

Com v. Sliech-Brodeur, 7/19/10

Commonwealth v. Joann Sliech-Brodeur, July 19, 2010

457 Mass. 300

Plain View, Search and Seizure, Discovery Orders and Mass. R. Crim. P. 14(b)(2), Jury Instructions, Daubert-Lanigan Hearing, Evidentiary Rulings

The defendant was found guilty of murder in the first degree of her husband on theories of deliberate premeditation and extreme atrocity or cruelty.  The defendant appealed her conviction by challenging a denial of her motion to suppress evidence, the scope of discovery orders granted on motion to the commonwealth concerning her defense of lack of criminal responsibility, and a number of rulings by the trial judge.  The SJC stated that the defendant’s motion to suppress was properly denied but that the discovery orders violated Mass. R. Crim. P. 14(b)(2), as appearing in 442 Mass. 1518 (2004).  These discovery orders resulted in prejudice to the defendant, and thus the SJC reversed the conviction and ordered a new trial.

Com v. F Velez, 7/16/10

Commonwealth v. Fred C. Velez, July 16, 2010
77 Mass. App. Ct. 270

The defendant was indicted on a charge of trafficking in cocaine. After a hearing, a judge denied the defendant's motion to suppress evidence and seeking disclosure of the identity of a confidential informant. Trial was jury-waived before a different judge, who found the defendant guilty. The defendant appealed, arguing that (1) his motion to suppress evidence obtained by searches of his automobile and apartment was erroneously denied and there was no probable cause for his warrantless arrest; (2) the identity of the informant should have been disclosed; (3) he received ineffective assistance of counsel; (4) the judge improperly questioned one of the Commonwealth's witnesses; and (5) cumulative errors require reversal. The Appeals Court affirmed.

Com v. A Hernandez, 7/16/10

Commonwealth v. Anthony Hernandez, July 16, 2010
77 Mass. App. Ct. 259

Witness Confrontation, Search and Seizure, Drug Certificate, Required Finding, Motion to Suppress, Protective Frisk, Reasonable Suspicion

The defendant appealed from convictions of unlawful possession of cocaine with intent to distribute, G.L. c. 94C, § 32A(a), and violation of the school zone law, G.L. c. 94C, §32J. On appeal, the defendant argued that his motion to suppress evidence was wrongly denied, and that the trial judge erred in denying his motion for a required finding of not guilty and in allowing into evidence a certificate of chemical analysis without affording the defendant his confrontation rights under the 6th Amendment to the US Constitution. The Appeals Court found reversible error occurred with the admission of the drug certificate; the Appeals Court affirmed the denial of the defendant's motion to suppress and motion for a required finding of not guilty. The Appeals Court reversed the convictions and remanded for a new trial.

Com v. D Mendez, 7/15/10

Commonwealth v. David W. Mendez, July 15, 2010
77 Mass. App. Ct. 253

Assault and Battery, Rape-Shield Statute, Prior Misconduct

The defendant was found guilty of indecent assault and battery on a person over fourteen years of age following a jury trial in District Court. On appeal, the defendant argued that (1) the judge erred in not allowing defense counsel to reference testimony concerning the victim's prior sexual conduct in his closing argument, (2) the evidence was insufficient to permit an instruction about the victim's incapacity to consent, and (3) the judge's use of the word “unconscious” in the jury instructions on the element of consent was improper. The Appeals Court affirmed the judgment.

Com v. Sommer, 7/13/10

Commonwealth v. Steven Sommer, July 13, 2010
77 Mass. App. Ct. 907

Idle and Disorderly Person, Prior Violent Conduct, Self-Defense, Assault and Battery

The defendant was charged with assault and battery; threats to commit a crime; disorderly conduct, and assault and battery by means of a dangerous weapon. After a jury trial, he was convicted of assault and battery and disorderly conduct, and acquitted on the remaining charges. The defendant appealed, arguing that (1) although the disorderly conduct instruction given by the trial judge was consistent with the SJC's interpretation of the disorderly conduct in Alegata v. Commonwealth, 353 Mass. 287 (1967), the Alegata decision was erroneous and (2) the trial judge's refusal to give a “first aggressor” instruction was error. The Appeals Court found error in the second contention, but affirmed the judgment on reason of no substantial risk of a miscarriage of justice.

Com v. Womack, 7/13/10

Commonwealth v. Leo Womack, July 13, 2010
457 Mass. 268
 
Accusations and Denials, Juror Intimidation, Right to Remain Silent

The defendant was convicted of felony-murder in the first degree.  His appeal for a new trial was denied by the trial judge.  The appeal of that denial as well as his direct appeal were consolidated into this appeal.  The defendant contends that the judge erroneously admitted evidence of accusations by police during a custodial interrogation and evidence of the defendant's blanket denials and his silence, and that the judge should have declared a mistrial based on evidence of alleged juror intimidation.  The SJC affirmed the conviction and the order denying a new trial and also declined to reduce the degree of guilt.

Com v. Clemens, 7/8/10

Commonwealth v. Jeffrey L. Clemens, July 8, 2010
77 Mass. App. Ct. 232

Assistance of Counsel, Self-Representation, Waiver of Constitutional Rights

The defendant appealed from his conviction for disorderly conduct, in violation of G.L. c. 272, § 53, following a jury trial in the District Court. The appeal challenges the manner in which the judge coupled allowance of the defendant's request to discharge appointed counsel (denying his request for new counsel) with a decision to require the defendant to represent himself. The defendant argued that there was inadequate colloquy between the judge and the defendant to inform the defendant of the risks of going forward if unrepresented by counsel. Without adequate warning, the judge could not conclude that the defendant was sufficiently informed to warrant an implied waiver of his right to counsel. The Appeals Court reversed, holding that the colloquy was inadequate to support a finding of a knowing waiver of counsel. 

Com v. Springfield Terminal Railway Co., 7/8/10

Commonwealth v. Springfield Terminal Railway Company (and seven companion cases), July 8, 2010
77 Mass. App. Ct. 225

MA Oil and Hazardous Material Prevention Act, Execution of Sentence, Stay of Proceedings

The defendants are four corporations that operate railways in MA and other states. Each defendant was found guilty of two counts of violating the reporting procedure mandated by the MA Oil and Hazardous Material Release Prevention Act. The charges arose out of the defendants' failure to notify the Department of Environmental Protection about a diesel fuel leak from a parked locomotive. The judge sentenced each defendant on the first count to pay a fine of $100,000, plus a $25,000 surfine, payable within thirty days, and on the second count each defendant was placed on probation for three years with special conditions.

Com v. Rivas, 7/6/10

Commonwealth v. Felix Rivas, July 6, 2010
77 Mass. App. Ct. 210

Drug Certificate, Search and Seizure, Reasonable Suspicion, Motion to Suppress

The defendant was convicted of trafficking in cocaine with a net weight of twenty-eight grams or more in violation of G.L. c. 94C, §32E(b)(2). The defendant appealed, arguing that the admission of laboratory drug certificates violated his rights under the 6th Amendment to the US Constitution. He also appealed from an order denying a motion to suppress, in which the motion judge concluded that a red rejection inspection sticker affixed to the defendant's vehicle supplied the police with an objectively reasonable suspicion to stop the defendant. The Appeals Court reversed the conviction and remanded for a new trial due to the error in the admission of drug certificates. The Appeals Court affirmed the denial of the motion to suppress.

Com v. CR King, 7/6/10

Commonwealth v. Christopher Robert King, July 6, 2010
77 Mass. App. Ct. 194

Assault and Battery, Self-Defense, Jury Instructions, Closing Argument, Assistance of Counsel

After a jury trial, the defendant was convicted of assault and battery, and was sentenced to one year of supervised probation. On appeal, the defendant claimed that the judge's jury instruction on self-defense, and the prosecutor's closing argument, created a substantial risk of a miscarriage of justice. The defendant also claimed that trial counsel was ineffective for not objecting to the prosecutor‟s closing argument. The Appeals Court reviewed the defendant's claims under a substantial risk of a miscarriage of justice standard of review, and affirmed the judgment.

Com v. J King, 7/2/10

Commonwealth v. Joshua L. King, July 2, 2010
77 Mass. App. Ct. 189

Drug Certificate, Melendez-Diaz v. Massachusetts

After a jury-waived trial, defendant was found guilty of distribution of a class B substance (cocaine), G.L. c. 94C, § 32A(c), as a subsequent offense, G.L. c. 94C, § 32A(d). Defendant appealed, arguing that the trial judge erred in admitting a drug certificate in evidence without live testimony in violation of his constitutional right to confrontation under the 6th Amendment to the US Constitution and that the error was not harmless beyond a reasonable doubt. The Appeals Court affirmed the judgments.

Com v. F Mendez, 7/2/10

Commonwealth v. Florencio Mendez, July 2, 2010
77 Mass. App. Ct. 905

First Complaint Doctrine, Hearsay, Cross-Examination, Sexual Assault

In October 2007, defendant was tried and convicted on indictments charging that he sexually assaulted two of his wife's nieces, Alice (10 years old) and Betty (14 years old). The victims' mother testified as the Commonwealth's designated first complaint witness with respect to Alice. Commonwealth offered no 1st complaint witness as to Betty. Defendant appealed, arguing that additional complaint evidence was admitted erroneously. The Appeals Court affirmed the judgments.

Com v. Indelicato, 7/2/210

Commonwealth v. David Indelicato, July 2, 2010
77 Mass. App. Ct. 182

Probation Modification, Alcohol

Defendant's original conditions of probation following his 3rd conviction of operating while under the influence included mandatory attendance at Alcoholics Anonymous (AA) meetings four times per week. While on probation, police placed defendant in protective custody after encountering him on the street in a state of intoxication. Defendant smelled of, and admitted consuming, alcohol.

A District Court judge modified defendant's conditions of probation to include “no alcohol” and random alcohol screenings. Defendant appealed, arguing that neither a violation of defendant's probation, nor any “material change in circumstances” warranted the modification.

The Appeals Court held that the defendant's being taken into protective custody by the police for extreme intoxication in public was a material change in circumstances within the meaning of case law sufficient to support the motion judge's modification of probation conditions.

Modification of probation conditions affirmed.


- Prepared by AYK

Com v. Hampton, 6/30/10

Commonwealth vs. Lord Hampton, June 30, 2010

457 Mass. 152

Motion to Suppress Statement due to Failure to permit use of Telephone.  Jury Issues, Structural Error, Due Process, Criminal Record Checks of Jurors 

The defendant was convicted of the September 28, 1999, murders of a fourteen-year old girl (victim) and her eight-month old fetus, both on theories of deliberate premeditation and extreme atrocity or cruelty. On appeal he asserts error in the denial of his motion to suppress the statement he gave to Boston police, allegedly because they violated his right under G.L. c. 276, § 33A, to make a telephone call; and in the denial of his request to obtain criminal records of jurors after the Commonwealth obtained criminal records of four jurors and after the jury were sworn. We affirm the convictions and decline to grant relief under G.L. 278, § 33E. 

Com v. Degray, 6/25/10

Commonwealth v. Norman Degray, June 25, 2010

77 Mass. App. Ct. 122

Seizure, Probable Cause 

The issue is whether police officers may reasonably search the trunk of an automobile where there was an odor of burnt marijuana in the vehicle, where the driver of the automobile admitted that he and the vehicle’s other occupants had been smoking marijuana in the automobile, and where two marijuana cigarettes as well as marijuana remnants were found in the passenger compartment.  The Commonwealth had appealed from a Superior Court judge’s allowance of the defendant’s motion to suppress evidence seized from the trunk.  The Appeals Court reversed. 

Com v. Lojko, 6/22/10

Commonwealth v. Brandon Lojko, June 22, 2010

77 Mass. App. Ct. 8

Firearm Storage 

The defendant was convicted in a bench trial of improper storage of a firearm. The Appeals Court concluded that the judged erred as matter of law in construing the requirements of the statute, and reversed.

Com v. Limone, 6/22/10

Commonwealth v. Joseph Limone, June 22, 2010

77 Mass. App. Ct. 903 

Seizure, Operating Under the Influence, Extraterritorial Stop, Breathalyzer Test, Field Sobriety Test 

The defendant was convicted of (1) operating a motor vehicle while under the influence of alcohol, (2) operating a motor vehicle after revocation of his license, and (3) operating a motor vehicle while under the influence of alcohol, fourth or subsequent offense.  On appeal, the defendant argued that the motion judge erred in denying his motion to suppress evidence.  He claimed that evidence was obtained as a result of an unlawful extraterritorial seizure.
   

Com v. Miranda, 6/21/10

Commonwealth v. Maria A. Miranda, June 21, 2010

77 Mass. App. Ct. 76

Jury Instructions, Defense of Another 

A jury convicted the defendant of assault and battery on a police officer. The defendant appealed, claiming that the judge erred in not instructing the jury on defense of another. The Appeals Court reversed the conviction.

The defendant was waiting for her friend while sitting in the driver’s seat of her SUV in a parking lot. A state trooper approached the vehicle and asked for the defendant’s license and registration.  He noticed indicia of alcohol impairment, and the defendant admitted to drinking.  At the trooper’s request, the defendant walked to the front of the SUV.  The defendant’s friend, Battle, approached the back of the SUV and began yelling at the trooper.  Battle also showed indicia of alcohol impairment. The defendant coaxed Battle into the vehicle.

Com v. Grannum, 6/18/10

Commonwealth vs. Kevin E. Grannum, June 18, 2010

457 Mass. 128

Motion to Withdraw Admission to Sufficient Facts for Failure to Provide Immigration Warnings 

Facts 

In 1986 the defendant was charged with receiving stolen property worth less than $100 and several motor vehicle offenses.  The defendant either pleaded guilty or admitted to sufficient facts with respect to all the charges.  Findings of guilty were entered for each charge and fines were imposed.  In 1999 the defendant moved for a new trial on the basis that the trial judge failed to warn him of the possible immigration consequences of his admissions.  Two court dates in district court were set but nothing happened.  Later, in 2006, the defendant filed a motion to withdraw his admission to sufficient facts based again on the failure to provide immigration warnings.  This motion was denied, and the defendant filed a timely notice of appeal.  In 2007 the defendant moved in district court for reconsideration of his 2006 motion arguing that in both the 1999 and 2006 motions, he had established that he was eligible for relief under G.L. c. 278, § 29D.  The defendant also included a letter from another attorney to his attorney stating the belief that the defendant’s admission in the prior case and a subsequent conviction for malicious destruction of property made him eligible for deportation.  This motion was denied in the district court.
  

Com v. Jones, 6/18/10

Commonwealth v. Kevin Jones, June 18, 2010

77 Mass.App.Ct. 53

New Trial, Assistance of Counsel, Witness Confrontation, Motor Vehicle, Drug Certificate, Ballistician’s Certificate, Firearms 

The defendant was convicted of (1) carrying a firearm without a license; (2) assault and battery; and (3) possession of a class B substance (cocaine).  The defendant’s direct appeal, appeal from the denial of his motion for a new trial, and appeal from the denial of his motion for reconsideration were consolidated.  

On appeal, the defendant claimed that (1) the judge committed reversible error in denying his motion for a new trial and his motion for reconsideration; (2) the evidence was insufficient to sustain his convictions of battery and possession of a firearm; and (3) his right of confrontation was violated by the introduction of ballistics and drug certificates without the supporting testimony of the individuals who performed the tests.   

The Appeals Court held in favor of the defendant in his contention regarding the admission of ballistics and drug certificates.  The Appeals Court reversed the judgments on the counts of the complaint charging carrying a firearm and possession of cocaine.  The remaining judgment and the order denying the motion for a new trial were affirmed.

Com v. Reddy, 6/15/10

Commonwealth vs. Dennis C. Reddy, June 15, 2010

457 Mass. 1002

       

Motion to dismiss a Habitual Offender Indictment 

Facts and Procedural History 

The defendant was charged in District Court with complaints of breaking and entering in the nighttime, malicious destruction of property, conspiracy, and possession of a burglarious instrument. He offered to plead guilty to those charges. The prosecutor would not agree to recommend anything less than the maximum period of incarceration that the District Court judge could impose on each offense.  The defendant, after entering his pleas, requested that he be sentenced to fifteen months on each offense, such sentences to run concurrently with each other and with a sentence he was likely to receive in connection with a parole violation then pending against him. 

Com v. Quintos Q., 6/15/10

Commonwealth vs. Quintos Q., a juvenile, June 15, 2010

457 Mass. 107

Delinquent Child, Resisting Arrest

Facts

In 2006, officers commenced pursuit of a vehicle in which the juvenile was the only passenger besides the driver. When the officers turned on his lights and attempted to stop the car the driver did not stop and instead tried to drive away.  The brief chase ended when the vehicle turned into the parking lot of a condominium complex and crashed into some bushes.  Both occupants left the vehicle and ran through the bushes. One officer exited his cruiser but did not have time to say anything to the fleeing pair before he tripped and fell in the bushes, losing sight of them.   A second officer who had joined the chase drove his cruiser to another part of the parking lot and saw the pair running. He commenced a chase on foot and yelled, "Stop, police. Stop, police." The officer followed the juvenile eventually trapping him between a building with a locked door, a fence, and the officer. The juvenile offered no resistance to his apprehension once he was cornered, which supports an inference that, at that point, the juvenile cooperated with his arrest.

Com v. Montoya, 6/15/10

Commonwealth vs. Luzander Montoya, June 15, 2010

457 Mass. 102

Resisting Arrest, Flight Creating Substantial Risk of Injury to Police 

Facts and Procedural History 

While on patrol late at night in September, 2005, two uniformed police officers saw the defendant riding a bicycle.  The officers testified that they saw the defendant extend his arm and fire three gunshots.  After seeing this, and with the intention to take the defendant into custody, the officers activated their cruiser lights and shouted at the defendant to stop. A chase ensued which ended temporarily when the defendant stopped and ran behind some stairs. The officers exited their cruiser with guns drawn and twice ordered the defendant to raise his hands and come out. Instead, the defendant ran off and the officers pursued on foot until the defendant ran into a parking lot near a canal. The lot was dark and although the canal was fenced off, a bent part in the fence allowed the defendant a place over which to jump. The defendant testified that when he jumped over the fence, he thought there was land on the other side, but to his surprise there was a drop of approximately twenty to twenty-five feet into shallow water and muck. The officers did not follow him over the fence, but told the defendant that he was under arrest.
  

Com v. Hinds, 6/10/10

Commonwealth vs. John J. Hinds, June 10, 2010
457 Mass. 83

Voluntary Manslaughter Jury Instructions, Homicide, Voir Dire 

The defendant appealed from his convictions of premeditated murder in the first degree, murder in the second degree, and armed assault with intent to murder.  The defendant argued that the judged erred by refusing to instruct the jury on voluntary manslaughter with respect to the two murder charges.  The SJC concluded that the evidence did not permit the jury to find the defendant guilty of voluntary manslaughter with respect to the killings, and the judge did not err in refusing to give such instruction.  The SJC further stated that after a review of the record there was no basis to exercise their powers under G. L. c.278 § 33E to reduce the convictions to a lesser degree of guilt or to order a new trial, and thus the convictions were affirmed.

Com v. Miller, 6/10/10

Commonwealth vs. Callum A. Miller, June 10, 2010

457 Mass. 69

Homicide, Jury Instructions, Malice, Closing Arguments by Prosecutor, Lesser Included Offense of Assault and Battery 

The defendant was convicted of murder in the first degree by reason of extreme atrocity or cruelty.  He now appeals conviction and argues that the judge erred in his instructions to the jury, that the prosecutor’s closing argument contained several improprieties that violated the defendant’s right to a fair trial, and that the judge’s failure to include a jury instruction for the lesser included offense of assault and battery created a substantial likelihood of a miscarriage of justice.  The SJC, after hearing this case on appeal from the Superior Court trial, rejected the defendant’s arguments and declined to exercise their authority under G.L. c. 278 § 33E, to reduce the degree of guilt or order a new trial.

Com v. Weeks, 6/10/10

Commonwealth v. Rupert A. Weeks, June 10, 2010

77 Mass.App.Ct. 1

Witness Confrontation, Argument by Prosecutor, Business Record, Prior Conviction, Firearms

The defendant was found guilty by a Superior Court jury of unlawful possession of a firearm without a license, and not guilty of unlawful possession of ammunition without a firearm identification card, and assault by means of a dangerous weapon. A Superior Court judge found the defendant guilty on the charge of carrying a firearm without a license, subsequent offense.  The defendant appealed from his two convictions arguing that the judge’s admission of docket sheets to prove prior convictions during the subsequent offense trial violated his confrontation rights under the 6^th Amendment to the US Constitution.  He also raised various trial issues.  The Appeals Court affirmed the convictions.

Com v. Marzilli, 6/9/10

Commonwealth vs. Joseph James Marzilli, June 9, 2010
457 Mass. 64

Attempt, Indecent Assault and Battery 

Prior to the defendant’s trial the Superior Court judge reported the case to the Appeals Court, along with two questions concerning the charge:

“Does an indictment alleging an attempt to commit the crime of indecent assault and battery charge a felony offense that is cognizable under the laws of the Commonwealth?  If not, is the indictment a nullity or is it one which should be read to charge a misdemeanor of assault or another offense?”

The defendant argued that the answer to the first question must be, “No”.  The defendant claimed there is no crime of “indecent assault” in either the common law or in the statutes, citing Commonwealth vs. Eaton, 2 Mass.App.Ct. 113 (1974), and he further contends that because the crime of “indecent assault” does not exist, that the crime of “attempted indecent assault and battery” cannot exist either.  The SJC transferred the case to their court and conclude the answer to the first question is, “Yes,” and that being so there is no need to consider the second question.

Com v. Sullivan, 6/4/10

Commonwealth v. James Sullivan, June 4, 2010

76 Mass.App.Ct. 864

Witness Confrontation, Prior Misconduct, Drug Certificate, Assistance of Counsel 

Defendant appealed from convictions of two counts of unlawful distribution of cocaine. He raised four evidentiary claims: (1) testimony describing the process by which the informant was authorized to serve as such and participate in controlled drug buys constituted improper vouching; (2) testimony indicating the informant had purchased cocaine from the defendant before the dates of the indicted offenses constituted impermissible prior bad act evidence; (3) testimony indicating law enforcement personnel were assigned to a gang task force was improper as it was irrelevant and prejudicial; and (4) the admission of drug analysis certificates violated the defendant’s rights under the confrontation clause of the 6th Amendment to the US Constitution.  The defendant also claimed ineffective assistance of counsel.  The Appeals Court affirmed the convictions.
  

Com v. Ramsey, 6/3/10

Commonwealth v. David Ramsey, June 3, 2010

76 Mass.App.Ct. 844

Medical Record, First Complaint, Hearsay, Witness Credibility

A Superior Court jury convicted the defendant of incest, and acquitted him of rape of a child. On appeal, the defendant complained of multiple violations of the first complaint rule. He also asserted error in the exclusion of an alleged recantation, the improper questioning of a witness, and exclusion of a journal kept by the complainant. The Appeals Court reversed because of the erroneous admission of some portions of the complainant’s hospital records.

Com v. Belliveau, 6/1/10

Commonwealth v. Gregory Belliveau, June 1, 2010
76 Mass. App. Ct. 830

Operating under the Influence, What Constitutes a Public Way, Ineffective Assistance of Counsel, Sentencing 

The defendant was observed obviously intoxicated with a beer in his hand urinating in public immediately after driving onto a pier in Charlestown.  The defendant was convicted of operating a motor vehicle under the influence of alcohol (OUI), fifth offense, in violation of G. L. c. 90 § 24(1)(a)(1).  On appeal the defendant argued that the pier he was arrested on was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing.  The Appeals court affirmed the judgment.

Com v. Riedel, 6/1/10

Commonwealth v. Mark A. Riedel, June 1, 2010  

76 Mass. App. Ct. 911

Extraterritorial Stop, Operating Under the Influence, Operating Negligently so as to Endanger 

The defendant appealed the legality of an extraterritorial stop effectuated in Brewster by an Orleans police officer.  The stop resulted in charges of operating while under the influence of intoxicating liquor (of which he was convicted) and operating negligently so as to endanger (of which he was acquitted). The trial court denied the defendant’s motion to suppress and the Appeals Court affirmed.
 

Com v. Salinger, 5/27/10

Commonwealth v. Salinger, May 27, 2010
76 Mass. App. Ct. 776

Assistance of counsel, Evidence, School records, Medical record, Rape.

The defendant was convicted by a Superior Court jury on one count of child rape and five counts of indecent assault and battery on a child under the age of fourteen.  In response the defendant filed a motion for a new trial, claiming ineffectiveness of counsel for failing to introduce certain evidence, and also asserted several additional bases for granting a new trial.  The trial judge did not hear arguments on all the issues in the defendant’s motion for new trial and ruled that due to the ineffectiveness of the defendant’s counsel, a new trial should be awarded.  The Appeals Court vacated the trial court’s grant of a new trial.  However, the court remanded the case back to the trial court to consider remaining unaddressed grounds in the defendant’s motion for a new trial.

Com v. Martin, 5/27/10

Commonwealth vs. Jamal Martin, May 27, 2010
457 Mass. 14

Motion to Suppress; Search and Seizure; Possession of Firearm 

The defendant appealed the denial of his pretrial motion to suppress evidence and statements claiming that he was subjected to an unlawful patfrisk violative of the 4^th Amendment of the Constitution of the United States of America and art.14 of the Massachusetts Declaration of Rights.  He also challenged his convictions asserting that the judge erred in admitting ballistics evidence and excluding exculpatory evidence.  The Appeals Court rejected his arguments and affirmed his convictions.  The SJC reversed the Appeals Court by vacating the order denying the defendant’s motion to suppress, ordered that the motion to suppress be granted, and did not consider the defendant’s additional claims.

Com v. Narcisse, 5/27/10

Commonwealth v. Mark Narcisse, May 27, 2010
457 Mass. 1

stop and frisk; search and seizure; patfrisk; field interrogation observation 

The defendant was charged with carrying a firearm without a license and possession of ammunition without a firearms identification card after he was pat frisked by police officers during a consensual encounter. The defendant moved to suppress the firearm, the ammunition, and the statements made to police, claiming that the patfrisk constituted an unlawful stop and seizure by the police under both the Fourth Amendment of the US Constitution and art. 14 of the Massachusetts Declaration of Rights. The motion was denied and the defendant was convicted of all charges. The Appeals Court affirmed his convictions. The SJC reversed. The issue is whether the officers possessed the requisite constitutional justification to seize the defendant after initiating a consensual encounter, as well as the necessary justification to frisk him. A constitutional justification for seizure requires a reasonable suspicion that the defendant was engaged in criminal activity and that he was armed and dangerous.

Com v. Hubbard, 5/27/10

Commonwealth v. Cory D. Hubbard, May 27, 2010
457 Mass. 24

Plea, Trial by jury, Waiver of trial by jury

In 1998, the defendant pleaded guilty in the District Court to multiple drug offenses. In 2005, the defendant moved to vacate his guilty pleas. The motions to vacate and motions for reconsideration were denied. The Appeals Court reversed and vacated the judgments, concluding that the defendant’s convictions were invalid because he did not sign a written waiver of his right to a jury trial in accordance with G. L. c. 263, § 6, and Mass. R. Crim. P. 19 (a), 378 Mass. 888 (1979). The SJC concluded that a written jury trial  waiver is not required to enter a valid guilty plea, and affirmed the order denying the defendant’s motions to vacate his guilty pleas, as well as the orders denying the defendant’s motions for reconsideration.The defendant brought up two issues. (1) Whether the court can determine the defendant’s guilty plea was ‘knowing and voluntary’ in the absence of a written jury trial waiver. (2) Whether the absence of a written jury trial waiver violates G. L. c. 263, § 6, or rule 19 (a), and provides a basis to invalidate the defendant’s pleas.

Com v. Williams, 5/21/10

Commonwealth v. Dwight Williams, May 21, 2010
456 Mass. 857

Motion to suppress, Disclosure of evidence, Discovery, Sentence, Comment by judge, Capital case. Evidence, Admissions and confessions,Hearsay, Authentication, Consciousness of guilt, Telephone conversation. Witness, Cross-examination. Evidence, Bias, Offer of proof. Constitutional Law, Admissions and confessions, Waiver of constitutional rights, Privacy. Homicide. Firearms. 

The defendant was convicted of murder in the first degree on a theory of deliberate premeditation, assault with a deadly weapon, assault with intent to commit murder, and unlawful possession of a firearm.  The defendant appealed the rulings on his motions to suppress statements, claimed two evidentiary errors, and four procedural errors including sentences beyond the statutory maximums for two of the charges.  The SJC agreed that the charges exceeded the statutory maximums and must be vacated, however the SJC rejected the defendant's other claims, affirmed his conviction, and remanded the case for resentencing.

Com v. McCoy, 5/20/10

Commonwealth v. Ronald McCoy, May 20, 2010
456 Mass. 838

Rape, Kidnapping, Assault and Battery,First complaint, Cumulative evidence. Error, Harmless Practice, Challenge to jurors, Examination of jurors, Voir dire, Harmless error, Lesser included offense, Duplicative convictions.

The defendant was convicted by a jury of kidnapping, rape, and assault and battery.  The defendant contended that his convictions should be reversed, arguing that the trial judge improperly denied his request for additional peremptory challenges, that after testimony from a designated first complaint witness the judge erred by allowing cumulative first complaint testimony without limiting instructions, and that the kidnap and assault and battery charges are lesser included offenses of the rape and should be dismissed.  The Appeals court reversed his convictions.  After granting leave for further appellate review the SJC affirmed all of the defendant’s conviction.

Com v. Franklin, 5/17/10

Commonwealth v. Messiah Franklin, May 17, 2010
456 Mass. 818

The Commonwealth appealed from the decision of the trial court to allow the defendant’s motion to suppress the introduction of a firearm into evidence.  The Appeals court reversed the trial court’s ruling, and the SJC affirmed the ruling of the Appeals court. 

Com v. Winfield, 5/14/2010

Commonwealth v. Keith Winfield, May 14, 2010
76 Mass. App. Ct. 716

The defendant was convicted of the forcible rape of a child under sixteen (two counts), indecent assault and battery of a child under fourteen, and assault and battery of a child causing serious bodily injury.

On appeal, the defendant argued that the judge erred by (1) denying his motion for required findings of not guilty at the close of the Commonwealth’s case; (2) permitting in evidence inflammatory photographs of the victim’s injuries; (3) permitting redaction of a portion of the defendant’s taped statement to the police; and (4) refusing to permit the defendant to impeach the victim’s mother for bias on her pending criminal charges. The Court held against the defendant in all appeal arguments and affirmed the convictions.

Com v. Humphries, 5/13/10

Commonwealth v. Jerold Humphries, May 13, 2010
76 Mass. App. Ct. 702

The defendant appealed two drug offense convictions, arguing that his motion for a required finding of not guilty after the Commonwealth’s case in chief should have been allowed. The Appeals Court concluded that the evidence of constructive possession was insufficient to support his conviction and reversed.A quantity of drugs had been found in an apartment with few personal effects, excepting the defendant’s Massachusetts identification card and an envelope addressed to the defendant at a different address.

Com v. Cruz, 5/13/10

Commonwealth v. Gualberto Barrero Cruz, May 13, 2010 
456 Mass. 741

The defendant was convicted of murder in the first degree on the theory of felony-murder, armed home invasion, and unlawful possession.

On appeal, the defendant argued that (1) the judge abused her discretion in denying his motion for a continuance made on the first day of trial; (2) the judge abused her discretion when she admitted in evidence the defendant’s prior bad conduct; (3) the defense counsel’s opening statement misstated which party had the burden of proof and confused the jury; and  (4) the judge denied the defendant his right to counsel when she denied his motion for a mistrial based on the difficulties and deterioration of his relationship with counsel during the trial.

Com v. Brown, 5/11/10

Commonwealth v. Michael R. Brown, May 11, 2010
456 Mass. 708

The defendant was a physician who was indicted on multiple charges of illegally distributing or dispensing controlled substances, submitting false medical claims, larceny, and possession of a controlled substance.  The defendant stated that his practice was to screen his patients to determine if they were abusing the controlled substances he was prescribing them, and if they were he would stop the prescriptions.  Evidence at trial showed that at least seven patients under the defendant’s treatment were shown though medical testing to be abusing the substances, and instead of stopping their prescriptions the defendant wrote more.  Furthermore the defendant engaged in a transaction with a patient whereby he wrote a prescription for a large amount of pills to the patient and agreed with the patient that he would take back 75 of the pills after the patient filled the prescription.  It is out of this transaction that the defendant raises their first point of contention.

Com v. Chown, 4/29/10

Commonwealth v. Kristian A. Chown, April 29, 2010
76 Mass. App. Ct. 684

Probable Cause, License to Operate a Motor Vehicle 

The defendant was indicted for operating a motor vehicle without a license in violation of G.L. c. 90, §§10, 21.  The trial court granted the defendant’s motion to suppress evidence gained after the defendant’s arrest which claimed that the officer had no probable cause to arrest the defendant.  The case came before the appeals court on leave to prosecute an interlocutory appeal.  The appeals court reversed the decision of the trial court, finding that probable cause to arrest existed and that the motion to suppress should have been denied. 

Com v. Velasquez, 4/29/10

Commonwealth vs. Ferdinand J. Velasquez, April 29, 2010
76 Mass. App. Ct. 697

Leaving the Scene of an Accident 

The defendant was tried and convicted of leaving the scene of an accident after causing property damage.  The defendant appealed the judge’s decision denying the defendant’s motion for required finding of not guilty.  The Appeals Court reversed the defendant’s conviction.

Com v. Morales, 4/27/10

Commonwealth vs. Moises Morales, April 27, 2010
76 Mass. App. Ct. 663

This case returned to the appeals court on remand from the United States Supreme Court after the Court’s ruling in Melendez-Dias.  In the previous appeals court case the defendants convictions for possession of a firearm with a defaced serial number, unlawful possession of a firearm, unlawful possession of ammunition, and possession of a class A substance (heroin) with intent to distribute, were all affirmed by this court holding that the ballistics and drug analysis certificates were admissible as evidence.  The defendant argued in the present case that admission of the ballistics and drug certificate without accompanying testimony from the ballistician and lab analyst who produced them violated his sixth amendment confrontation rights under the United States Constitution.  This time, the court reversed three of the defendant’s four convictions.

Com v. Eneh, 4/27/10

Commonwealth vs. Nnaemeka Eneh, April 27, 2010
76 Mass. App. Ct. 672

Disclosure of Evidence, Certificate of Drug Analysis 

The defendant was convicted of trafficking in cocaine and the lesser included offense of possession of heroin with intent to distribute by a Superior Court jury.  The defendant appealed his convictions claiming that he was prejudiced by the prosecution’s delayed disclosure of bank records.  The appeals court agreed and reversed the defendant’s convictions.

Com v. Rodriguez, 4/27/10

Commonwealth v. Valentine J. Rodriguez, April 27, 2010
456 Mass. 578

Required Finding; Motion to Suppress; Affidavit; Presumptions and Burden of Proof; Confrontation of Witnesses; Search and Seizure; Certificate of Drug Analysis; Expert Opinion

The defendant was convicted of (1) distribution of cocaine, (2) possession of cocaine, and (3) distribution of cocaine within one hundred feet of a public park. The Appeals Court reversed the judgments of conviction, set aside the verdicts, and remanded the case after concluding that the motion judge erred in denying the defendant’s motion to suppress. The SJC concluded that the evidence was insufficient as a matter of law to warrant a guilty finding on the 2 distribution counts and directed that a judgment of acquittal be entered on those counts. The SJC reversed the judgment of conviction of possession of cocaine, on different grounds than that of the Appeals Court, and remanded the case for a new suppression hearing and trial. 

Genest v. Commerce Ins. Co., 4/26/10

Patricia Genest v. Commerce Insurance Company, April 26, 2010

2010 Mass. App. Div. 101

Failure to Pay Personal Injury Protection benefits under G.L.c. 90 §34m, Unfair Settlement Practices under G.L.c. 93A and G.L.c. 176D

Facts

The plaintiff “Genest” sustained injuries in an automobile accident on April 26, 2005 while she was a passenger in a car insured by the defendant “Commerce”.  In May, 2006 she filed a PIP claim with Commerce which scheduled an independent medical exam and suggested a physician.  This physician examined Genest and found that although she was suffering neck and lower back pain, only the neck injury could be attributed to the accident and he ordered continued physical therapy and massage treatment.  When Genest returned after a few months with the same complaints the doctor examined her and concluded that any injury directly related to the car accident had been fully resolved and treatment could be discontinued.  Commerce informed Genest that it would not pay for anymore treatments after January 30^th.  However in February she went to a physiatrist twice for her back injuries and submitted the $250 dollar bill for those visits to Commerce.  Commerce declined to pay this bill, citing the IME cutoff date of 1/30/06. 

In July Genest demanded payment or a reasonable settlement offer, and Commerce denied liability.  In January after Genest sued Commerce, they made a “business decision” to pay her $250 dollars to avoid the cost of litigating and the PIP claim was dismissed.

Unfair Settlement Practices under G.L.c. 93A and G.L.c. 176D

At trial for the remaining claim of unfair settlement practices the trial judge found that Commerce reasonably relied on the doctor’s IME report in declining to pay Genest and that Commerce did not violate G.L.c. 93A.  The Appellate Division stated that they will usually not overturn a trial judge’s ruling on a 93A claim unless the finding is clearly erroneous.  In order to prevail on a 93A claim the plaintiff must show that “the defendant failed to make a prompt, fair, and equitable settlement offer when liability had become reasonably clear” and for G.L.c. 176D the test is, “whether a reasonable person, with knowledge of the relevant facts and law, would probably have concluded, for good reason, that the insurer was liable to the plaintiff.”  Based on the evidence at trial of the doctors IME and the testimony that the payment of $250 was a business decision, there was no error in the trial judge’s opinion that Commerce’s liability had not become reasonably clear, and thus the judge’s rejection of the plaintiff’s claims was affirmed.


- Prepared by AEK

Com v. Villatoro, 4/23/10

Commonwealth v. Faurry Villatoro, April 23, 2010
76 Mass. App. Ct. 645

Threshold Police Inquiry; Probable Cause; Perjury; Evidence

The defendant was convicted of several drug-related offenses. He appealing arguing that the trial judge erred in (1) denying his motion to suppress evidence resulting from multiple illegal searches; (2) convicting him based on allegedly perjured testimony; (3) failing to reconsider the denial of his counsel’s motion to withdraw; (4) failing to prove the second and subsequent offense charge beyond a reasonable doubt; (5) admitting drug certificates absent testimony of a drug analyst. The appeals court affirmed the judgments.

Com v. Flemming, 4/23/10

Commonwealth v. Robert Flemming, April 23, 2010
76 Mass. App. Ct. 632

Firearms. Practice, Criminal, Motion to suppress. Search and Seizure, Threshold police inquiry, Protective frisk. Constitutional Law, Search and seizure.

Incident to a Terry stop, and after observing a bulge at the defendant’s waistband, the police lifted the defendant’s shirt to ascertain the source of the bulge without first conducting a patfrisk. The BMC trial judge suppressed the evidence seized as a result of that search. The Commonwealth appealed. The appeals court held that “though there may be circumstances in which a patfrisk is unnecessary as an initial investigatory step, the present case does not warrant departure from the general rule favoring a patfrisk as a predicate to further investigation in a Terry stop.” Accordingly, the appeals court affirmed the suppression order.

Com v. Drummond, 4/22/10

Commonwealth v. Luis Drummond, April 22, 2010

76 Mass. App. Ct. 625




Practice, Criminal, Admissions and confessions, Voluntariness of confession, Instructions to jury, Argument by prosecutor. Constitutional Law, Admissions and confessions, Waiver of constitutional rights.

The defendant was convicted of armed robbery while masked, based in part on a confession he made to a detective when the two were alone in a police interrogation room. Because the interrogation had not been recorded, the defendant requested and received a jury instruction pursuant to Commonwealth v. DiGiambattista. The trial judge blunted the impact of the instruction by telling jurors they could disregard it if they found that the defendant declined to have the interrogation recorded after being advised of his right to have that done. The judge also omitted the second half of the instruction, which allows but does not compel jurors to find that a confession was involuntary if it was not recorded. The appeals court held that because of the abundance and strength of the Commonwealth’s other evidence, the error in the jury instructions did not create a substantial risk of a miscarriage of justice. Judgment affirmed.

Com v. Levy, 4/20/10

Commonwealth vs. Andrew Levy, April 20, 2010
76 Mass. App. Ct. 617

Motion to Suppress, Probable Cause, Search and Seizure

The commonwealth appeals from the trial judge’s allowance in part of the defendant’s motion to suppress evidence.  The defendant was charged with possession with intent to distribute a class B substance (cocaine), possession with intent to distribute within a school zone.

Leave to prosecute an interlocutory appeal was allowed by a single justice of the SJC, and the appeal was then reported to the appeals court.  The appeals court reversed the decision of the trial court and denied the motion to suppress.

Com v. Snow , 4/20/10

Commonwealth v. Eric Snow and another, April 20, 2010
456 Mass. 1019

Murder, Prosecutorial Misconduct, Confrontation of Witnesses, Civilian Witnesses

Defendants were indicted for murder. The two filed a motion to dismiss the indictments, arguing prosecutorial misconduct during the course of the grand jury proceedings. The defendants sought an evidentiary hearing on this motion, seeking to call four civilians as witnesses at the hearing. The trial judge allowed the civilian witnesses. The Commonwealth filed a G. L. c. 211, § 3, petition, seeking relief from the judge’s order allowing the testimony of the civilian witnesses. A single justice denied the petition. The Commonwealth appeals this denial of its G. L. c. 211, § 3, petition. The SJC affirmed.

Citibank (SD) v. Garabedian, 3/30/10

Citibank (South Dakota), N.A. vs. Charles Garabedian, March 30, 2010

2010 Mass. App. Div. 89

Res Judicata

The plaintiff “Citibank” brought a claim for payment of a delinquent credit card account of the defendant “Garabedian” on which the court entered summary judgment for Citibank.  The case arose out of Garabedian’s failure to make payments on either his Visa card or his MasterCard which he had applied for, received, and used from Citibank.  On April 8, 2005, Citibank brought a claim in Lawrence district court for the unpaid balance on his Visa card, and a default judgment for the plaintiff was entered on that claim when Garabedian failed to answer.  On October 5^th, 2006, Citibank filed an action to collect the balance owed on Garabedian’s MasterCard account.  The case was dismissed on February 5^th, 2007 pursuant to rule 4(j) for Citibank’s failure to effect timely service of process.  On January 14, 2008, Citibank brought the same action a second time and both parties moved for summary judgment pursuant to Mass. R. Civ. P., Rule 56.  Garabedian claimed that res judicata barred this action because the action had already been dismissed, and in the alternative because Citibank was obligated to bring this action with the first collection action in 2005.  The trial court denied Garabedian’s motion and awarded summary judgment for Citibank.  The Appellate Division affirmed that decision.

Bertrand v. Merrimack Mutual Fire Ins. Co., 3/30/10

Joseph Bertrand, and another vs. Merrimack Mutual Fire Insurance Company, March 30, 2010

2010 Mass. App. Div. 85

Referee’s Award, Summary Judgment

The plaintiff-homeowners (“Bertrands”) filed this action against Merrimack Mutual Fire Insurance Company (“Merrimack”) for benefits they alleged were due under their insurance policy for damage caused to their home by a fire.  The insurance policy the Bertrands had with Merrimack contained different coverage sections that were supposed to pay for different types of losses or expenses.  Merrimack paid amounts that exhausted the coverage maximums of the sections covering loss or damage to property and loss of use of property, but there was still $19,000 dollars available to the Bertrands under the section that covered additional living expenses.  The Bertrands had placed some of their property into a storage unit after the fire and were seeking the $260 dollars a month that the unit cost to rent from this latter section of Merrimack’s policy.  Merrimack argued that this section was only designed for temporary living expenses in case the family could not live in the house, and was not meant to cover storage fees.  Merrimack believed that this cost was included in an earlier section covering loss of use of property, and the maximum coverage on that section having already been paid, Merrimack refused to pay these storage fees.

In accordance with G.L.c. 175 §99, the Bertrands agreed to a three member board of referees to determine amount of loss owed to them.  This referee board concluded that Merrimack owed the Bertrands $0.00.  The Bertrands then took their claim to court where the trial judge awarded summary judgment for Merrimack.  The Appellate Division vacated the summary judgment order.

City Sanitation v. Beck, 3/30/10

City Sanitation vs. Christopher Beck and another, March 30, 2010

2010 Mass. App. Div. 92

Motion to Dismiss for Lack of Personal Jurisdiction

Facts

The plaintiff “City” brought a suit alleging conversion of his truck engine, stating that the defendant’s brother, while in possession of City’s truck, removed its engine and put it into a truck owned by the defendant “Christopher”.  Christopher denied owning the truck or that the motor was actually switched, and moved pursuant to Mass. R. Civ. P. 12(b)(2) that the case against him be dismissed for lack of personal jurisdiction.  Christopher is a resident of Rhode Island, and the other defendant is his company which is incorporated in Rhode Island and has its principle place of business there.  The trial judge ordered the case dismissed for lack of personal jurisdiction and the Appellate Division affirmed that order.