Birks v. Green

 Supreme Judicial Court of Massachusetts – May 31, 2012

462 Mass. 1013

*Rescript

Facts: Birks was convicted of murder in the first degree and illegal possession of a firearm. Birks appealed from a judgment of a single justice of the court denying his petition for a writ of mandamus. Birks filed a motion in the trial court seeking appointment of a new counsel to prepare another motion for a new trial. The judge denied the motion. Birks then filed a petition of mandamus in the trail court asking the court to order trial counsel to answer twenty questions to assist him with his motion for a new trial. The judge denied this petition as well. Birks then filed essentially the same mandamus petition in the county court.

Issue: Whether the plaintiff can file a writ of mandamus in the trial court and county court sequentially.

No. Although a writ of mandamus may be brought in either the trial court or the Superior Court, this does not mean that a petitioner may sequentially seek the identical relief in one court after the other. Concurrent jurisdiction “does not, in other words, allow [a petitioner] two bites of the apple.” (JT)

Smith v. Massachusetts Bay Transportation Authority

Supreme Judicial Court of Massachusetts – May 31, 2012

462 Mass. 370

Facts:  The plaintiff was injured in an automobile accident involving an MBTA bus driver on July 15, 2005. The plaintiff filed suit against the MBTA and the bus driver on October 26, 2005. A jury determined that the accident resulted from the employee’s negligence and awarded the plaintiff damages. On September 20, 2009, judgment was entered for the plaintiff in the sum of $661,784.00 with interest thereon and the plaintiff’s costs. A month later, on November 1, 2009, under amendments to the Massachusetts Tort Claims Act, the MBTA became a “public employer.” The Torts Claims Act provides that public employers are immune from the award of interest and costs. The MBTA then filed a motion seeking relief from so much of the judgment that required it to pay interest and costs.

Issue: Whether the 2009 amendments apply retroactively, allowing the MBTA the protections of public employer status against a plaintiff whose claims accrued prior to November 1, 2009.

No. Whether a statute is to be applied to events occurring prior to the date on which it took effect is in the first instance a question of legislative intent. Where the legislature has not spoken directly on the issue of retroactivity, as in this case, there is a presumption that the legislation commonly looks to the future, not to the past. Therefore, the plaintiff is entitled to interest and costs prior to November 1, 2009. However, the plaintiff obtained no vested right to the continuing accrual of interest on or after November 1, 2009, when the MBTA became a public employer and was thus protected by the Torts Claims Act. The plaintiff is entitled to interest and costs accruing between the date of commencement of the action and November 1, 2009, but may not recover any such sums accruing on or after November 1. (JT)

Commonwealth v. Magri

 Supreme Judicial Court of Massachusetts – May 31, 2012
462 Mass. 360

Facts:  This is an appeal by defendant arguing that he was unduly prejudiced by the joinder of thirty-two charges against him and that the charges should have been severed because they involved different crimes, times, location and victims, and were not planned together. Furthermore, the defendant argues that inculpatory evidence discovered in a search of his bags violated his rights under the U.S Constitution and the Massachusetts Declaration of Rights.

Between June and August of 2007, the city of Pittsfield experienced a string of robberies. Suspecting the defendant was involved in the thefts, police placed him under surveillance. In August, 2007, a team of officers and detectives followed him and two companions. During this time, they observed the defendant and his companions as the three walked a mile-long loop through residential and commercial streets. The defendant briefly entered and left a number of stores, staying only briefly. On August 9, 2007, surveillance was in place when the defendant approached an automobile parked in front of a drug store. With his accomplices acting as lookouts, the defendant reached through an open window and opened an interior compartment. At that point, the defendant and his companions were arrested.

After the defendant’s arrest, police came to believe evidence linking him to the crimes was located in an apartment where he was staying. Without securing a warrant, two officers visited the apartment. The tenant gave the officers oral and written consent to enter and search the premises. The tenant directed the officers’ attention to two bags, located in a corner of her bedroom that she identified as belonging to the defendant. She told the officers that the defendant was no longer welcome at her apartment (a development of which the defendant may not have been aware of) because she suspected him of having stolen her air conditioner. The officers seized the bags and took them to the police station where, again without a warrant, police opened the bags and examined their contents. The items they found linked the defendant to several of the charged offenses.

Issue 1: Whether the charges for each of the crimes should have been severed because they “involved different crimes, times, locations, and victims.”

No. The determination whether joinder is appropriate is committed to the sound discretion of the trial judge. Where a defendant faces charges on related offenses, the judge shall join the charges for trial unless he determines that joinder is not in the best interest of justice. Offenses are related where the evidence in its totality shows a common scheme and pattern of operation that tends to prove all indictments. In light of factors supporting a conclusion that the offenses constituted a larger plan or scheme, the judge permissibly concluded that they were related offenses appropriate for joinder.

Issue 2: Whether the police search and seizure of the defendant’s bags was a violation of the Fourth Amendment or article 14 of the Massachusetts Declaration of Rights.

Yes. The crucial question is whether the defendant had a reasonable expectation of privacy in his bags that were left in the tenant’s bedroom with whom he was staying. It is well settled that overnight guests maintain an expectation of privacy in luggage stored in a host’s dwelling. There is no reasoned basis for drawing a legal distinction between a guest’s containers as luggage based on the materials from which they are made, their shape, or the mechanism by which they are closed. Because the defendant may not have known at the time of the search that he was no longer welcome in the tenant’s residence, that fact could not have had any impact on his privacy expectations. If the defendant had recognized his unwelcome status in the home, he may have lost that reasonable expectation. However, the record gives no indication that the defendant knew or should have known at the time of the search that his status as the tenant’s guest had changed and therefore me maintained his reasonable expectation of privacy. Because the bags were not lawfully subject to search, the evidence in the bags should have been suppressed. The defendant is entitled to a new trial on the charges where the improperly obtained evidence recovered from the bags was used at trial. (JT)

Commonwealth v. Flint

81 Mass. App. Ct. 794

Facts: Mark Flint, the defendant was convicted of rape of a child and attempt to commit rape of a child because he sexually assaulted the victim when the victim was a child. The defendant timely appealed and ordered a transcript of his trial. Eighteen months after he ordered the transcript, he was informed that the witness testimony was not available. The defendant filed a motion to reconstruct the missing portions of the record. The judge conducted hearings on the reconstruction of the record. Following the hearings, the judge issued his reconstruction of the record and one year after, the defendant filed a motion for a new trial alleging incomplete and inadequate record and the admission of evidence in violation of the doctrine of first complaint. The motion was denied and he appealed.

Issue: Whether the defendant is entitled to a new trial due to the incomplete and inadequate record and the admission of evidence in violation of the doctrine of first complaint?

No. The court found that the judge properly adhered to the procedure delineated in Commonwealth v. Harris for the reconstruction of the record. He held evidentiary hearing, received all available trial-related evidence and considered a variety of sources about what occurred at trial, including his own memory and customary practice, and resolved the differences between the parties on the basis of the evidence. As such, the reconstruction of the record are supported by the evidence and therefore, not erroneous. In addition, the court found that the testimony of the victim’s wife about conversations between her and the victim that culminated in disclosure of sexual abuse by the defendant and her observations of her husband when they visited the apartment where the defendant used to live was properly admissible under the doctrine of first complaint. Accordingly, the order denying motion for a new trial is affirmed. (YK)

Commonwealth v. Felix Portillo

462 Mass. 324

Facts:  Defendant was charged with distribution of marijuana and possession of marijuana with intent to distribute.   The defendant moved to suppress the statements he made to police on August 13, 2004, following his arrest on the drug charges, claiming that they were obtained in violation of the Fifth and Fourteenth Amendments and Art. 12 of the Massachusetts Declaration of Rights because he had not been advised of his Miranda rights.  The interrogation had been conducted in Spanish and tape recorded, but the Commonwealth did not provide notice of discovery of the audio recording of the interrogation until November 17, 2009, and did not provide the defendant with a copy of the audiotape until November 30.   On February 9, 2010, when the motion to suppress was scheduled to be heard, the defendant orally moved to exclude the recording because the Commonwealth had failed to provide an English-language transcript.  The Commonwealth contended that its only obligation in discovery was to provide the defendant with the Spanish-language audio recording.  The District Court Department, Chelsea Division, Diana L. Maldonado, J., granted defendant’s motion to suppress the audio recording of Spanish- language interrogation of defendant and police officers’ testimony regarding the statements the defendant made during the interrogation.  Commonwealth filed application for leave to prosecute an interlocutory appeal.  A single justice of the Supreme Judicial Court, Suffolk County, Ireland, J., allowed the application and reported appeal to Appeals Court. 

Issue:  Did the judge abuse her discretion in declaring that the Commonwealth may not offer in evidence because a translated transcript was not given to the defense counsel?

Holding:  No.  Vacated and Remanded.  After transferring the matter from the Appeals Court on its own initiative, the SJC held that Commonwealth was required to provide English-language transcript of recording of interrogation.  The judge did not abuse her discretion in declaring that the Commonwealth may not offer in evidence, the defendant’s statements, or the audio recording of the interrogation while refusing to provide defense counsel with a translated transcript of the Spanish-language recording.  Ultimately, when the Commonwealth intends in its case-in-chief to offer at trial statements made by a defendant in a foreign language in a tape-recorded interview, it is within the judge’s discretion to require the commonwealth to provide defense counsel in advance of trial with an English-language transcript of the interview, and to exclude the statements where the Commonwealth declines to do so.   (JB)

Witkowski v. Richard W. Endlar Insurance Agency, Inc.

81 Mass. App. Ct. 785

Facts: The plaintiff purchased a residential condominium unit located in the basement of the building. The condominium was located in a floodplain area designated as an AE flood zone, an area of special flood hazard. Under 42 U.S.C. § 4012a(b)(1), federally regulated lending institutions are forbidden to make any loan secured by improved real estate located in an area of special flood hazard, unless the property is covered for the term of the loan by flood insurance in specified amounts. Elizabeth Kelley (Kelley), a paralegal employed by the attorney representing the plaintiff’s mortgage lender, contacted the management company for condominium and requested proof of flood insurance on the unit. Endlar issued a certificate. The certificate identified the plaintiff as the unit owner and stating that “above unit owner is insured…” and the policies listed in the certificate had issued in favor of the condominium. Incident to his purchase of his condominium unit, the plaintiff also purchased a policy of title insurance from First American. The policy specifically states that any losses resulting from governmental regulations, including building codes are excluded from coverage. On May 15, 2006, the unit was completely destroyed as the result of a flood of the Shawsheen River and it cannot be rebuilt due to applicable building code requirements. The plaintiff was denied insurance coverage by both Endlar and First American. The defendants, Endlar and First American, filed a summary judgment and the court granted summary judgment for both defendants.

Issue: Whether the judge properly granted summary judgment in favor of Endlar and First American?

The judgment dismissing the plaintiff’s claims against Endlar is reversed. Endlar was aware that Kelley, on behalf of the plaintiff, requested proof of flood insurance coverage for the plaintiff’s unit. In addition, the plaintiff alleged that he relied, to his detriment, on the insurance certificate. Endlar knew that the plaintiff and his mortgage lender would rely on the certificate it furnished to constitute that proof. Therefore, the court concluded that it is reasonable for the plaintiff to rely to his detriment on that representation.

The court held that the judge correctly granted summary judgment dismissing the plaintiff’s claims against Frist American because the policy specifically excludes any losses resulting from governmental regulations (including zoning and building codes) from coverage. (YK)