Commonwealth v. Nutbrown

81 Mass. App. Ct. 773

Facts: On March 15, 2008, the defendant, Steven Nutbrown, and his friend, Christopher Bates, were both drunk and driving when the car crashed into the victim causing serious injuries. The victim could not identify the driver because the defendant and Bates hid their faces. The fact regarding the driver of the car at the time of the accident was in dispute. Attempting to show that Bates was the driver, the defendant filed a motion in limine seeking the admission of three sets of Bates’ statements against penal interest. The defendant offered the following statements made by Bates: (1) the statement made to the defendant’s mother that he was the driver, but he put the blame on the defendant because he was just out of jail and was afraid they’d send him back; (2) the statement made to the defendant’s friends that he was going to tell the defendant’s attorney he was driving in the accident; (3) the statement made to the defendant’s attorney that he was driving the car. Ultimately, the statement made to the defendant’s attorney was admitted and the other two were excluded. The defendant argued that the other two should also be admitted.

Issue: Whether Bates’ other two statements against penal interest should be admitted?

Yes. The court used three-part test for admission of Bates’ statements against penal interest. In order for evidence to fall within the hearsay exception for statements against penal interest, “[1] the declarant’s testimony must be unavailable; [2] the statement must so far tend to subject the declarant to criminal liability ‘that a reasonable man in his position would not have made the statement unless he believed it to be true’”; and [3] the statement, if offered to exculpate the accused, must be corroborated by circumstances clearly indicating its trustworthiness.” The court found that those three requirements for admission of Bates’ statements against penal interest were satisfied. Unavailability requirement is met because the defense and the prosecution were unable to locate Bates despite extensive efforts to do so. The statements were against penal interest because the Commonwealth properly conceded that this element is met. The trustworthiness element is met. In determining trustworthiness, a judge should assess the credibility of the declarant. Here, the main factor weighing against trustworthiness is Bates’s character and the judge found that Bates’s statements were trustworthy. Furthermore, the court concluded that exclusion of two other statements was not harmless beyond a reasonable doubt because the multiple statements interlock to some degree, forming a coherent sequence explaining why Bates would have initially blamed the defendant.

Therefore, the judgment for the conviction is reversed.   (YK)

Commonwealth v. Zachary Z

462 Mass. 319

Facts:  The alleged victim of a robbery, a student attending the same high school as the juvenile, reported that on October 10, 2008, he was walking down the street with a few people after getting off the public bus he had taken after school.  One of his companions, whom the alleged victim knew only by an initial, produced a knife and stole the victim’s cellular telephone and “iPod.”  The police suspected the juvenile of the robbery because a backpack containing an item with the juvenile’s name on it was found at the scene.   To confirm the suspicion, the investigating detective asked a police officer assigned to the juvenile’s public high school to retrieve a photograph of the juvenile.  At the time the detective made the request, the police had no search warrant or subpoena for the photograph and had not obtained or sought the consent of the juvenile’s parents.  Someone from the school provided the Boston police, through the police officer assigned to the school, with a student identification card that contained the juvenile’s name, photograph, and birth date. The juvenile first moved to dismiss the complaint for loss of exculpatory evidence because the Commonwealth had lost the student identification card from which the enlarged photograph of the juvenile was derived.  At a hearing, the judge denied the motion.   However, he expressed concern at that hearing about the method by which the student identification photograph had been obtained.   A second hearing on whether the identification should be suppressed because of how the photograph was obtained was held on March 24, 2010.  The motion judge allowed the juvenile’s motion to suppress the identification based on his assumption that the student identification card was required for school attendance, the judge ruled that the juvenile had a reasonable expectation that the school would not disclose the student identification card to others for noneducational purposes, pursuant to this court’s decision in Commonwealth v. Buccella, 434 Mass. 473.  The judge also determined that the juvenile has a reasonable expectation of privacy because the photograph was part of the juvenile’s student record that is required to be kept confidential by regulations promulgated by the Department of Elementary and Secondary Education.   The judge then reasoned that to hand over the juvenile’s photograph, a warrant was required.

Issue:  Whether the motion judge correctly ruled that the juvenile had a reasonable expectation of privacy in his student identification card photograph that if violated, required suppression of evidence of the identification made by the alleged victim.

Holding: “In reviewing a motion to suppress, we accept the judge’s subsidiary findings of fact unless they are clearly erroneous but independently review the judge’s ultimate findings and conclusions of law.”  However, applying this standard to this present case is not possible.   In ruling as he did, the judge made certain assumptions about the photograph that may well be correct, but evidence supporting the assumptions is not in the record before us.  The judge stated that the juvenile was required to take a picture for a school identification card in order to attend the high school and the student identification photograph was maintained by the school for “intended educations purposes” but there was no testimony or other evidence presented on these critical issues of fact.    Without evidence regarding how the student identification card and photographs are created and how and by whom they are used within and outside of the school, we are not in a position to review the judge’s conclusion that the juvenile had a reasonable expectation of privacy in the photograph and the legal consequences that follow from such a conclusion.  We conclude, therefore, that the decision allowing the juvenile’s motion to suppress must be vacated.   The judge’s allowance of the motion to suppress is vacated and the case is remanded to the Juvenile Court for further proceedings.  (JB)

Robin Lyons v. John A. Duncan

81 Mass. App. Ct. 766

Facts: On December 4, 2003, Michael Lyons, suffered a stroke. He was transferred to Hasbro Children’s Hospital in Province, Rhode Island and came under the care of Dr. Duncan. Surgery was performed by Dr. Duncan on the right side of Michael’s brain. Following the surgery, Michael had two follow-up visits with Dr. Duncan in Province. After each visit, Dr. Duncan mailed a letter to Michael’s pediatrician in Massachusetts regarding Michael’s diagnoses, surgery, and treatment that he had received and his condition. In June 2004, Michael suffered a second stroke. He was taken to Children’s Hospital in Boston and surgery was performed on both sides of his brain.

Procedural History: In 2007, the plaintiffs brought a malpractice action in Massachusetts against Michael’s pediatrician and Needham Pediatrics, P.C. In 2010, they amended the 2007 complaint to add Dr. Duncan as a defendant, alleging negligence, lack of informed consent, and claims on behalf of both parents. Later, they filed a second motion to amend their 2007 complaint to add a claim of negligent misrepresentation against Dr. Duncan based on two letters that he mailed to Michael’s pediatrician in Massachusetts. This motion was denied on the grounds that it was futile. The defendant’s motion for summary judgment was granted because of the court’s lack of personal jurisdiction over the defendant. In 2010, before the defendant’s summary judgment was granted, instead of appealing the denial of their second motion to amend, the plaintiffs simply filed another malpractice action against Dr. Duncan to add a claim of negligent misrepresentation. A different Superior Court judge granted the defendant’s motion to dismiss.

Issue #1: (2007 case) Whether Massachusetts courts have personal jurisdiction over Dr. Duncan pursuant to the Massachusetts long-arm statute?

No. The court found no basis for personal jurisdiction in relation to the plaintiffs’ negligent misrepresentation claim based on two letters under the Massachusetts long-arm statute, G.L.c. 223A, § 3. The court reasoned that the negligent misrepresentation claim never became part of the 2007 case and the plaintiff never even raised any arguments either in Superior Court or on appeal to explain why Massachusetts courts should have personal jurisdiction over the defendant. Furthermore, even if that claim had been added to the 2007 case, the plaintiffs still could not establish personal jurisdiction under the long-arm statute because there is no evidence that Mr. Duncan actually practiced medicine in Massachusetts.

Issue #2: (2010 case) Whether the 2010 case was properly dismissed pursuant to rule 12(b)(9)?

Yes. The case was properly dismissed. “Rule 12(b)(9)[(10)] provides for the dismissal of a second action in which the parties and the issues are the same as those in a prior action still pending in a court of this Commonwealth. The rule prohibits the long-barred practice of claim-splitting.” The court found that the 2010 case was properly dismissed pursuant to rule 12(b)(9) because the parties and the claims were same in both cases and the 2007 case was still pending. (YK)

Gorbatova v. Semuels

462 Mass. 1012

Facts-   Petitioner, Valentina Gorbatova , as the guardian of her husband, filed a petition seeking disciplinary action against attorney.  Semuels, acting in his capacity as hearing officer for the Executive Office of Elder Affairs, had conducted an administrative hearing and issued a final decision reducing home care services to petitioner’s husband.   The petitioner sought disciplinary action against Semuels for his conduct during the administrative hearing, claiming that in the course of acting as the hearing officer he had violated numerous provisions of the Rules of Professional Conduct.   Treating the petition as one, a single justice of the Supreme Judicial Court determined the petitioner did not have a private right of action and did not establish that she was entitled extraordinary relief under the statute and dismissed the petition.  Petitioner then appealed.  

Issue:    Does a petitioner have a private right of action for prosecuting a complaint against an attorney?

Holding- No.  Judgment Affirmed.   Because the petitioner did not have a private right of action, the single justice did not err in dismissing the petition because it is the Board of Bar Oversees and not private individuals who are ordinarily responsible for prosecuting complaints against attorneys and thus the petitioner’s recourse in these circumstances is to file a complaint with the Board of Bar Overseers. “No matter how the petition was framed or how it was treated by the single justice, the critical point is that the petitioner, as a private individual, sought to invoke this court’s power of general superindence of the bar by commencing a court action…There simply is no such private right of action.”  A citizen filing a complaint is not a party to any action taken against the attorney, nor are the citizen’s rights jeopardized.  As in the case of a criminal prosecution, the complainant may be a witness, but he may not appeal or participate as a party to the litigation. (JB)

Regis College v. Town of Weston

462 Mass. 280

Facts: Plaintiff Regis College is a private, non-profit educational institution offering undergraduate, graduate, and continuing education in Weston, MA. Regis plans to expand its current campus by adding a development (“Regis East”) for residential elder education. Regis East students would live in residential units on the new campus and enroll in at least two academic courses per semester. These students are expected to average 75 years of age upon admission and undergo an application and interview process to be accepted into the program. Regis envisions a high degree of coordination between the existing and new campuses, and highlighted the new campus’s potential to provide clinical placements for existing nursing students.

Procedural Posture: Regis College petitioned the Weston zoning board for relief from certain zoning regulations, claiming an exemption from the regulations under the Dover Amendment, G.L. c. 40A, § 3, second par., which applies to nonprofit educational institutions that use land for educational purposes. The board denied the petition partially on the grounds that it did not have authority to decide the matter, and after Regis College obtained a judgment from the Land Court that the board did indeed have jurisdiction, the board again denied the petition on the merits. An appeal to the Land Court resulted in a summary judgment against Regis College on the grounds that the proposed development would not serve a primarily educational purpose and thus did not qualify for a Dover Amendment exemption.

Standard of Review: The appellate court reviews a decision on summary judgment de novo. Summary judgment is only appropriate when the evidence, viewed in the light most favorable to the non-moving party, reveals no material facts in dispute and that the moving party is entitled to judgment as a matter of law.

Issue #1: What is the scope of the “educational purposes” requirement in the Dover Amendment?

The court noted that its precedent supports a broad reading of the Dover Amendment. The statute covers nontraditional and unconventional educational regimes, though they are subject to two limitations. First, the land and structures proposed must be used for a purpose that is educationally significant, though not necessarily traditional; previous SJC cases have allowed facilities that provide vocational and independent living education to disabled adults. Second, education must be the primary purpose of the proposed development. As the Dover Amendment can provide significant financial benefit to a land developer, the court must ensure that the educational purpose proposed is not a mere add-on instituted solely to obtain the favorable zoning exemption.

Turning to the facts of this case, the court found that Regis College’s plans for its proposed development that consistent with the requirements of the Dover Amendment. The city, the defendant in this case, challenged the plans on the grounds that the educational component of the proposed development was vague, unspecific, and secondary to the residential and recreational purposes. It also challenged the operability of the plan and the sincerity of the Regis College administration in strictly enforcing the academic requirements among the residents. However, the court noted that the question of whether Regis College honestly planned to operate an educational facility as it claimed involved credibility and reliability determinations inappropriate at the summary judgment stage. These were questions for the ultimate trier of fact.

Judgment: Grant of summary judgment for the defendant Town of Weston is vacated and the matter is remanded to the Land Court. (GC)

Gullick v. Commonwealth

462 Mass. 1011

Facts: Petitioner Ronald Gullick was convicted in 1979 of various offenses and has filed a number of appeals and motions for new trial in the years since. His direct appeal of his conviction was denied in 1982. Several of his motions for new trial argued that he received ineffective assistance of appellate counsel.

Procedural Posture: This appeal arose from a denial of Gullick’s most recent petition under G.L. c. 211, §3, which requested that the SJC “reinstate” his direct appeal on the grounds that his appellate counsel failed to communicate with him during his appeals process. A single justice of the SJC denied the defendant’s petition.

Issue: Whether the defendant’s G.L. c. 211, §3, petition should have been accepted?

Petitions under G.L. c. 211, § 3, are appropriate when the defendant has no other remedy to correct errors and abuses by the inferior state court. However, ineffective assistance of counsel is one basis for a motion for new trial, and Gullick in fact argued this same point in several of his previous motions. As such, the G.L. c. 211, §3, petition is not available to him.

Judgment: The single justice did not err in denying the defendant’s petition (affirmed). (GC)

AFSCME, Council 93 v. Burlington School Department

462 Mass. 1009

Facts:  The union of school department employees brought action to vacate arbitrator’s award, resolving the employee’s grievance in favor of department.  The Superior Court Department confirmed the award and the union appealed.   The Appeals Court reversed, ruling that the arbitrator exceeded her authority by determining, on the basis of no evidence, that the grievant was a civil service employee and thus not subject to the grievance and arbitration procedure under the collective bargaining agreement. The department applied for further appellate review and the SJC affirms the judgment of the Superior Court. 

Issue:   Did the arbitrator exceed authority by determining that grievance was arbitrable?

Holding:    No, the Supreme Judicial Court held that arbitrator did not exceed authority by determining that grievance was abatable.  Judicial review of an arbitration award is narrowly confined and a court is bound by the arbitrator’s findings and rulings even if they appear erroneous, inconsistent, or unsupported by record at the arbitration hearing.   Absent fraud, errors of law or fact are not sufficient grounds to set aside an award and thus the union’s argument that there was no evidence in the record to support the finding by the arbitrator falls short of this deferential standard.  (JB)