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.