Commonwealth v. Joshua Lewis

Appeals Court -- January 12, 2012

Facts:  While Trooper Demos was meeting up with Trooper Keane at a parking lot by Route 27, they observed a vehicle containing three occupants who were making furtive movements. The defendant was in the back seat while Peter Le was in the driver’s seat and Ren Pho was in the passenger’s seat. They were stopped by the Troppers as soon as they got on Route 27. When Demos approached the vehicle, he smelled marijuana. He then asked Le for his license and registration. Meanwhile, Demos noticed Pho seemed nervous and placed his hands where Demos could not see. Demos then asked Pho to step out of the vehicle to be patted down. Demos discovered Pho was carrying a .38 caliber Beretta pistol, which was seized by Demos at this point.

While Demos tried to put Pho on the ground, the defendant fled and ran across Route 27. Demos ordered the defendant to stop several time. As the defendant was running into a parking lot across Route 27, he reached into his pocket for a gun. The defendant pointed the gun at Demos while Demos ordered him to drop the gun. Demos fired twice after the defendant refused to drop the gun. The defendant continued to point the gun at Demos and Demos fired again, which knocked the defendant down. Defendant then put the gun in his pocket and raised his hand. Demos removed a .38 caliber Colt pistol from the defendant. There was no rounds in the chamber but there was ammunition in the clip. During the arrest, the defendant kept repeating “I’ll beat this, I’ll beat this again.”

Issue #1: Whether or not the evidence was sufficient to display that the defendant had specific intent to kill.

Yes because the circumstantial evidence showed that the inferences were reasonable and possible. The defendant was in a vehicle with another person who possessed a loaded gun and fled the scene without being suspected of any crime. He also refused to stop on multiple orders, continued to point the gun at the officer and never voluntarily surrendered his gun. These evidence was enough to display his intent to kill.

Issue #2: Whether or not the defendant’s statement during arrest was admissible.

Yes. A statement is admissible when it is voluntarily made. The defense did not argue that the statement was involuntary.

Issue #3: Whether or not the defendant was prejudiced by the prosecutor’s improper statements in closing arguments.

No. Even though the prosecutor’s statements were improper, by stating the "entire defense is a sham,  It's staged," and "lies  came from the defense table," they would not affect the credibility of the witnesses and the evidence. At trial, the judge did instruct the jury that they were to weigh the evidence.  Therefore, the defendant was not prejudiced.

Joann Caveney v. Thomas J. Caveney

Appeals Court -- January 12, 2012

Facts: Wife filed for divorce in Probate and Family Court. The couple had two minor children during the marriage. At the time of divorce, the husband owned fifty percent of the shares in New England Technical Sales (NETS) where he also drew a base salary of $100,000 a year. He also owned forty percent of shares in Online Marketing Solutions, Save Harbor, Inc. (OMS). However, he did not draw a salary from OMS. The fair value of the husband’s interest in NETS and OMS was $21,000 and $71,000 respectively. The judge also found the loan receivable on both companies were $675,000 which were considered assets subject to division. Both companies were also paying many of the husband’s personal bills which caused the court to believe that the true income was closer to $200,000 a year. On the other hand, the wife was employed as a part-time teacher earning $8,450 a year and she was caring for the children at home. She owned interests in Scarfo Constructions, Inc.(Scarfo Consturction), Liberty Manor, Inc.(LMI), and Liberty Homes, Inc.(LMH). Based on expert testimony, the judge found that her interest was vauled at $291,000 at Scarfo Construction and $75,000 at LMI and LHI as of December 31, 2008. The marital estate was valued at $2,068,049.

The judge determined that each party was entitled to one-half of the value of the marital estate, $1,034,024. Therefore, the judge ordered the husband to pay the wife a sum of $260,142 to equalized the division since the assets assigned to the wife only totaled to $773,882. The judge also ordered the husband to pay $500 a week of child support, $940 a week of alimony, and $175,000 for legal fees and costs. The judge also found that the husband was in civil contempt for failure to comply with certain provision of the divorce judgement, which the husband challenged. He also alleged that the judge erred in valuing the wife’s business interests.

Issue #1: Whether or not the judge in Probate and Family Court erred in valuing the wife’s business interested.

No in part. The interest of the businesses were valued using December 31, 2008 as the date, which the husband was given sufficient time to change to a different date. Therefore, the judge decided to use the date. The judge’s reliance of the asset based valuation method based on expert’s testimony and the totality of circumstances was not clearly erroneous. However, the court determined that the judge did err in adopting the marketability discount. The assets in question were being distributed in a marital division but not in an open market.

Issue #2: Whether or not the husband was in civil contempt when he failed to pay judgement.

Yes. In order to find one in civil contempt, there must be clear, undoubted disobedience and a person may not be sentenced to prison for failure to pay if he can display that he is unable to. After complying with other divorce orders, the husband clearly still had the ability to pay the judgement. (YN)

Polk v. Commonwealth

 Supreme Judicial Court - January 10, 2012


Facts: Defendant was convicted in the Superior Court Department of statutory rape. Immediately before sentencing, defendant moved for a stay of execution of sentence pending appeal. The Superior Court denied the motion and the Defendant filed a motion in the Appeals Court to stay execution of sentence. A single justice of the Appeals Court denied the motion for a stay without hearing or findings. After the appeal from the underlying convictions was docketed in the Appeals Court, the Defendant filed an application for direct appellate review which was granted. The appeal was subsequently transferred and docketed in the Supreme Judicial Court. The Defendant then filed a motion for stay of execution of sentence before a single justice of the Supreme Judicial Court. The motion was allowed and the Commonwealth appealed.



Issue: Whether a defendant whose motion for a stay of execution was denied by the Appeals Court, may file another motion to stay the execution of his sentence before a single justice of the Supreme Judicial Court after direct appellate review is granted by that court.



Yes. Under Massachusetts law, a defendant is entitled to appeal from the trial judge's denial of a motion to stay the execution of sentence to a single justice of the appellate court “to which the appeal is being taken,” Mass. R.A.P. 6(b)(1), and “that will hear the appeal.” Mass. R.Crim. P. 31(b). A single justice of the court that will decide the appeal is in the best position to determine whether there is some reasonable probability that the defendant will prevail on appeal. See G.L. c. 211A, §§10 and 11.



Conclusion: Therefore, it is not an abuse of discretion for a single justice of the Supreme Judicial Court, to which the appeal has been taken, to consider de novo the defendant's motion for a stay of execution of sentence pending appeal, or impose bail and conditions of release. Affirmed. (H.G.)

ELIZABETH RYAN, administratrix, vs. PATRICIA A. HUGHES-ORTIZ, administratrix, & another.

Appeals Court -- January 6, 2012


Parties: Charles Milot died from an accidental gunshot wound. Elizabeth Ryan (Plaintiff), was the administratrix of Milot estate.Thomas Hughes (defendant) was the owner of the gun which caused the deadly wound. Glock, Inc. manufactured the gun.

Facts: In November, 2001, Milot was on probation after serving a prison sentence. He worked odd jobs around Hughes' house. Hughes testified that he owned several firearms, one of which was a Glock pistol, that he stored in a chest in a second-floor bedroom, which was kept locked and had barred windows. The keys to the bedroom were kept in a vase on top of the fireplace.

Milot's sister, McConologue, reported that on February 23, 2002, Milot had showed her two handguns and two loose cartridges. When she asked where he had gotten the guns, he told her that he had taken them from Hughes's house. McConologue told Milot to call Hughes and return the guns. Milot agreed to put the guns back the way he had found them.

On February 25, 2002, Hughes brought Milot to his home to repair his doorbell. Hughes left the house for two hours before going back to check on Milot's progress. Upon returning home, Hughes found Milot's body covered in blood in the front doorway of his home. An autopsy determined that he suffered a gunshot wound to his left thigh which severed the femoral artery and caused Milot to bleed to death.

Procedural History: Ryan, the administratrix of Milot's estate, filed a complaint in the Superior court, asserting claims of negligence and wrongful death. Against Glock, Inc., Ryan claimed breach of implied warranty of merchantability, negligence, wrongful death, and unfair and deceptive acts and practices. The court granted each defendant's' motion for summary judgment, finding that “Hughes owed Milot no duty of care and, even if he had, any negligence on the part of Hughes did not cause Milot's death[,]” and that against Glcok, the Protection of Lawful Commerce in Arms Act (PLCAA) barred the Plaintiff's claims. Plaintiff appealed.

Issue #1: Whether Hughes is liable for Milot's death?

No. Judgment Affirmed. The Court concluded that Milot's affirmative act of theft of the guns from Hughes's home was in violation of G.L.c. 226 s 30, and therefore barred the plaintiff from recovery. The court explained that public policy dictates that a plaintiff should not recover in tort for damages that resulted from his or her own criminal conduct.

Issue #2: Whether Glock is liable for breach of implied warranty of merchantability, negligence, wrongful death, and unfair and deceptive acts and practices?

No. Judgment Affirmed. The court upheld the Superior Court's decision that PLCAA barred the plaintiff's claim against Glock. In its decision, the court explained that in order to determine the applicability of the PLCAA, it must first determine whether the lawsuit is a “qualified civil liability action”which is a civil proceeding that is brought by a person against a manufacturer of a qualified product for damages or other relief, “resulting from the criminal or unlawful misuse of a qualified product by the party or a third party.” Second, the court must determine whether any of PLCAA's exceptions apply, and if not, Ryan's claim would automatically be dismissed. The court concluded that since the civil action at issue resulted from Milot's possession of the Glock pistol, which constituted “criminal or unlawful misuse” due to Milot's felony conviction, the action was a “qualified civil liability action” and did not fit within any of PLCAA's exceptions. Therefore, the matter was summarily dismissed. (MS)

Finch & others v. Commonwealth Health Insurance Connector Authority & others

Supreme Judicial Court  -- January 5, 2012


 Facts: Legal resident aliens filed a class action in the county court challenging a legislative appropriation excluding them from eligibility for the state's health insurance program. Commonwealth Care is a health care program initiated by the state that provides structured premium assistance for low-income Massachusetts residents. Both State and Federal funds are used to provide premium assistance for enrollees. Individuals eligible for Federal benefits initially received partial reimbursement from the Federal government, leaving those that were ineligible wholly dependent upon the State subsidies.


In 2009, a legislative appropriation, St.2009, c. 65, § 31 (a), was enacted excluding all aliens who are federally ineligible under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) from participation in Commonwealth Care. 29,000 legal immigrants were left without premium assistance benefits and forced into a partially-subsidized, insurance plan for immigrants that had been dis-enrolled. The Supreme Judicial Court determined that where the "State acts on its own authority, it cannot shelter behind the existence of Congress's plenary authority" and since its discrimination is based on alienage and national origin it should be subjected to strict scrutiny review and remanded to the county court. On remand, Plaintiffs moved for partial summary judgment and the single justice reported the matter to the full court.


Issue: Whether the 2009 legislative appropriation § 31 (a), which excluded non-citizen immigrants, ineligible for federally-funded benefits, from the State subsidized health care program, violated the legal aliens' equal protection rights under the state constitution.

Yes. Applying strict scrutiny analysis, the appropriation discriminated against the Plaintiff's and violated their rights to equal protection. The Commonwealth was not required to apply Federal eligibility classification to their health care program and for three years provided benefits to qualified aliens without any suggestion that such benefits were inconsistent with PRWORA. Where Congress has plenary authority under the United States Constitution they can legislate the rights and benefits for aliens present in this country, and their immigration policy is only subject to rational basis review. However, a State's classifications based on alienage are inherently suspect and subject to close judicial scrutiny, requiring them to demonstrate that their race-based discrimination was narrowly tailored to the conditions in their States. The Court held that the Commonwealth did not meet this burden.


Conclusion: The limiting language Section 31 (a) cannot stand. Its discrimination against legal immigrants, for fiscal purposes, violates their rights to equal protection under the Massachusetts Constitution. The Court, again, remanded the matter to the single justice with instructions to grant the plaintiffs' motion for partial summary judgment. (H.G.)

Smaland Beach Association v. Genova & Bartlett

Appeals Court -- January 5, 2012
Facts: In an action between a beach association and neighboring property owner on trespass, adverse possession, vandalism and breach of fiduciary duty claims, the Superior Court entered an order disqualifying Defendant’s attorney from representing the association based on the conclusion that the attorney was a necessary witness. The court found that Defendant had raised an advice of counsel defense to the Plaintiff''s breach of fiduciary duty claim and assisted various witnesses in submitting errata sheets substantively changing their deposition testimony, thereby giving the Plaintiffs a right to call the attorney as a witness. Defendant moved for reconsideration but the judge reserved the motion since Defendant was technically without counsel. Defendant then petitioned a single justice of the Appeals Court for relief which was denied, causing Defendant to file an interlocutory appeal.



Issue: Whether the trial court can disqualify an attorney as a necessary witness without first determining if the subject of the attorney’s testimony would be prejudicial to the client or obtained by other means.

.

No. Rule 3.7(a) of the Massachusetts Rules of Professional Conduct, provides, in pertinent part, that a “lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where ... disqualification of the lawyer would work substantial hardship on the client.” Because of the severe consequence of stripping a party of chosen counsel, the court must proceed with deliberate caution to determine whether the testimony sought from the attorney would be prejudicial to his clients or whether alternate sources for this information were available. The court found that there was no indication that the judge conducted that inquiry, meaning the attorney’s disqualification was based on speculation, which is purely insufficient to serve as a basis for disqualification. Furthermore, the judge emphasized the plain language of Rule 3.7(a) which prohibits a lawyer from acting as an advocate “at a trial” and therefore does not apply to pre-trial representation.


Conclusion: After transferring the case on its own initiative from the Appeals Court, the Supreme Judicial Court concluded that the judge failed to engage a sufficiently searching review of this fact-intensive issue, vacated the disqualification order and remanded the case for a further hearing.


Note: In addition to addressing the issues of disqualification, the court described the proper use of errata sheets under Mass. R. Civ. P. 30(e). On this matter, the court adopted the majority view which allows errata sheets to be used to make any legitimate, good faith, changes to deposition testimony that enables the parties to obtain the fullest possible knowledge of the issues and facts before trial. To mitigate the potential for abuse, the court adopted remedial measures to allow the original and changed answers, as well as any reasons given for the changes, to remain part of the record for impeachment purposes; and reserved the right to reopen the deposition if the changes prove material. Any indication that an attorney has exploited the rule by facilitating the submission of errata sheets for the purpose of strategic gain and not to correct testimony, may be grounds for sanctions. (H.G.)

COMMONWEALTH vs. JEFFSON CHARLES

 Appeals Court -- January 4, 2012

Facts: When an officer approached the vehicle in which the Defendant was a passenger, he noticed that the Defendant's door was open between six and twelve inches. During the stop, police recognized the driver (not the Defendant) as someone who had three outstanding warrants and with respect to whom they had received credible information that he possessed a stolen handgun. The officer also saw the Defendant, who appeared nervous and excited, make furtive gestures toward his waistband. Fearing that he may be in danger, the officer ordered the Defendant to exit the vehicle and subsequently conducted a pat frisk. Upon frisking the Defendant, the officer found a firearm.

Procedural History: The Defendant moved to suppress evidence seized by the officer following the exit order, arguing that the officer unlawfully ordered him to exit the vehicle. The court denied the Defendant's motion to suppress and he was subsequently convicted of unlawfully carrying a firearm, and unlawfully carrying a loaded firearm. He was also found in violation of the armed career criminal statute. The jury acquitted him of unlawful possession of ammunition. The Defendant appealed, alleging that a series of errors marred his trial and precluded his retrial such as the court's failure to suppress evidence seized following the exit order and that admission of certificates of ballistics analysis without live testimony from the ballistician and laboratory analyst who produced them violated the Confrontation Clause.

Issue #1: Whether the police officer lacked reasonable and articulable suspicion to justify the exit order?

No. Given the nervous and excited appearance of the Defendant in addition to his furtive gestures both inside and outside of the vehicle, the court concluded that the officer had a heightened awareness of danger, which justified his exit order and pat frisk. Furthermore, the officer's observation that the Defendant's door was ajar, gave rise to the officer's fear that the defendant would either attack or flee, thus allowing him to order the Defendant to exit the vehicle in order to prevent possible harm.

Issue #2: Whether the court's admission of certificates of ballistics analysis without live testimony from the ballistician and laboratory analyst who produced them was a reversible error?

Yes. The court found that because the certificates were testimonial in nature, the Defendant was entitled to examine the ballistician and the laboratory analyst who produced the certificates at issue.

Issue #3: Whether the Defendant's conviction for unlawfully carrying a firearm should be vacated because it is a lesser included offense of unlawfully carrying a loaded firearm?

No. The court held that the offenses of unlawfully carrying a firearm and unlawfully carrying a loaded firearm are not duplicative in that the Legislature specifically authorizes cumulative punishment under the two statutes.

Issue #4: Whether retrying the Defendant on the loaded firearm charge is barred by his acquittal of the charge of possessing ammunition?

Yes. The Doctrine of collateral estoppel bars a subsequent prosecution if one of the issues decided at the first trial is an essential element of the alleged crime at issue in the second trial or it may bar the introduction of certain facts determined in the defendant's favor at the first trial. Here, in the first trial, the jury determined that the Defendant did not possess the ammunition, therefore, in a new trial, the doctrine of issue preclusion prevents the Commonwealth from attempting to prove indirectly an issue the jury directly resolved in the defendant's favor in the first trial.

Issue #5: Whether G.L. c. 269, s10(a) and (n) violate the Second Amendment to the United States Constitution?

No. States may lawfully impose reasonable regulations on firearm possession. (MS)