text:
    COMMONWEALTH v. Princewill O. DANIELS.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


source: Caselaw Access Project

license: Public Domain

text:
    A.C. v. J.C.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Daileen CRUZ & another.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    Michael AUGUST v. Kelly RYAN & another.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. William DAMON.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Max LAVALLEE.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. John A. BARSELL.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Daquan CORBETT.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Sergei J. DYER.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Owen MCCANTS.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Antwoin MOORE.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.
    Mr. Justice Gaziano and Mr. Justice Kafker did not participate.


text:
    COMMONWEALTH v. Jonathan PASQUARELLI.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Vladimir A. JEAN-BAPTISTE.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    Wen Y. CHIANG & others v. Michael DEMARCO.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Phillip DUFFY, Third.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Abdelghani DADSI.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. John P. YOUNG.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Michael D. SAMSON.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    Michelle L. KOSILEK v. Richard C. MCFARLAND & others.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. James L. SPILLANE.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Tyrone V. STAMPLEY.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


author: Mr. Justice Kafker did not participate.

text:
    U.S. BANK, N.A. v. Steven L. MILAN & another.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.
   Mr. Justice Kafker did not participate.


text:
    K.D. v. J.D.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    Aaron Zachary REED v. Jane W. NEWBURGER & others.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    WELLS FARGO BANK, N.A. v. Nancy P. COMEAU & Another.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    Paul VANDENBERG & another v. TOWN OF WILLIAMSTOWN & others.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


author: Mme. Justice Budd did not participate.

text:
    In the MATTER OF A GRAND JURY INVESTIGATION.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.
   Mme. Justice Budd did not participate.


text:
    COMMONWEALTH v. Jose RODRIGUEZ.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    Richard FELT v. COMMISSIONER OF CORRECTION & others.
    16-P-1389
    Appeals Court of Massachusetts.
    Entered: January 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Steven J. O'Brien, individually and in his capacity as superintendent of the Massachusetts Treatment Center (MTC); Scott Brown, Sheila Smith, Richard E. Palmer, Jay Sylvia, Kam S. Goldstone, and Locksley Wilson, individually and in his or her capacity as a Department of Correction employee assigned to the MTC; and Malee "Noi" Prete, individually and in her capacity as a nonemployee member of the MTC behavior review committee.

   The plaintiff, a sex offender civilly committed to the Massachusetts Treatment Center at Bridgewater (MTC), was found guilty of possessing another inmate's property in an internal disciplinary proceeding. He filed a complaint against the defendants in the nature of certiorari pursuant to G. L. c. 249, § 4, challenging the administrative decision and claiming that the disciplinary proceeding violated his right to due process. A Superior Court judge denied the plaintiff's motion for partial summary judgment and entered judgment on the pleadings for the defendants. On appeal, the plaintiff repeats the arguments he advanced in the Superior Court. We affirm.

Background. A correction officer confiscated a "walkman" electronic device (which he referred to as an "MP3 player") from the plaintiff's cell. That device was not on the plaintiff's property inventory form and therefore the plaintiff was not authorized to have it. Further investigation revealed that the item belonged to another inmate and that it was listed on that inmate's property inventory form. The plaintiff was cited for unauthorized possession of another person's property. Following a hearing before the behavior review committee (BRC) at the MTC, the BRC found that the plaintiff was in possession of another person's property in violation of 103 Code Mass. Regs. § 431.11(1)(D-8) (1997). The finding was based on the BRC's consideration of the report of the investigating officer, that officer's testimony, the plaintiff's property inventory form, and the electronic device. That decision resulted in the plaintiff's loss of his gymnasium privileges for five days. The plaintiff filed an internal appeal, which was denied.

Discussion. The purpose of the certiorari procedure in this context is to correct substantial errors of law that adversely affect an inmate's material rights. Drayton v. Commissioner of Correction, 52 Mass. App. Ct. 135, 140 (2001). "Our review of a disciplinary proceeding is based on whether the record contains substantial evidence to support the hearing officer's decision." Puleio v. Commissioner of Correction, 52 Mass. App. Ct. 302, 305 (2001).

Here there was ample evidence to support the administrative decision. The investigating officer's testimony clearly established that the plaintiff was in possession of an electronic device that belonged to another inmate and that the plaintiff's possession of the item was unauthorized, all in violation of 103 Code Mass. Regs. § 431.11(1)(D-8). The plaintiff did not deny his possession of the electronic device. He claimed that the mischaracterization of the item as an "MP3 player" and "contraband" adversely affected his material rights. The judge considered this argument, but concluded that "[t]he testimony and evidence provided at the BRC hearing, that the plaintiff possessed property belonging to another, is 'adequate to support [the BRC's] conclusion.' G. L. c. 30A, § 1(6)." We discern no error in the judge's conclusion that there was substantial evidence supporting the administrative decision.

The plaintiff's constitutional claims are equally unavailing. It is well established that an inmate is entitled to the protections of due process only when an existing liberty or property interest is at stake. Drayton, supra at 138. In this context, a liberty interest is "generally limited to freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). Here, the loss of gymnasium privileges for five days does not infringe on such a liberty interest. See Puleio, supra at 306 (punishment of ten days' detention in segregated unit not significant hardship resulting in infringement of liberty interest). Simply put, we see no reason to disturb the judgment of the Superior Court.

Judgment affirmed.

      Title 103 Code Mass. Regs. § 431.11, entitled "Code of Offenses," provides in pertinent part that "[o]bservation of [b]ehavior offenses shall include ... [u]nauthorized possession of property belonging to another person." 103 Code Mass. Regs. § 431.11(1)(D-8).

      In light of our ruling, we need not consider the alternative arguments for affirming the judgment raised by defendant Prete.


text:
    COMMONWEALTH v. Michael GONSALVES.
    17-P-237
    Appeals Court of Massachusetts.
    Entered: January 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial, the defendant, Michael Gonsalves, was convicted of assault and battery, assault and battery on a family or household member, and breaking and entering with intent to commit a misdemeanor (B & E). On appeal, he contends that the verdicts cannot stand because (1) the evidence was insufficient to sustain a conviction for the B & E count, and (2) the assault and battery and B & E convictions were legally inconsistent. We affirm.

Background. The jury could have found the following facts. Tiffany Tobey resided in a single-story house in Hyannis with her son and her boy friend of eight years, Raul Nieves. The defendant is the father of Tobey's son and was a close friend of Nieves at one time. Tobey had a court-ordered custody agreement with the defendant regarding visitation of their son.

On November 17, 2015, at approximately 11:30 P.M. , Tobey was watching a movie with Nieves in the home. At this time, the defendant approached the front door of the house. Tobey opened the door "a crack." The defendant told Tobey that "he heard an altercation on the street about [Tobey] and that he would like to speak with [her]." Tobey responded that she did not want to speak with him, but that if he wanted to speak with her, she would come outside. Tobey closed the door. Shortly thereafter, the defendant "pushed the door open" and "pushed [Tobey] ... on [her] chest" causing her to fall down. Nieves got up from the couch where he had been "laying," and the defendant "went charging for his legs." An altercation ensued during which the defendant bit Nieves on the nose. During the fight, Tobey yelled at the defendant to "get off" of Nieves. The defendant pulled her hair, and ripped hair out of her head. The altercation-from the knock on the door until the defendant left the house-lasted approximately "[a] minute and a half." When it had concluded, Nieves was covered with blood. Tobey telephoned 911. Police and paramedics came to the scene, and Nieves was later taken to the hospital.

Barnstable police Officer Jeffrey Jackson was the first officer to arrive at the scene. He encountered Nieves on the road outside the house, and saw that he was bleeding from his nose. Officer Jackson then entered Tobey's home, and noted that "[i]t was in disarray, things knocked over." He also saw blood and hair on the floor. Photographs of the blood and hair were taken at the scene and ultimately entered in evidence at trial.

Discussion. The defendant contends that the Commonwealth did not meet its burden to prove that he had the intent to commit a misdemeanor at the time of the breaking and entering. See Commonwealth v. Poff, 56 Mass. App. Ct. 201, 203 (2002). We review the defendant's claims to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

Here, the evidence viewed in the light most favorable to the Commonwealth was sufficient to prove that the defendant intended to commit assault and battery at the time of entry. There was evidence from which a rational juror could have found that the defendant had an acrimonious relationship with the victims prior to the assault and battery. The evidence also showed that the defendant approached the house late at night; that he referenced an "altercation" involving Tobey that, the jury could infer, had concerned or upset him; and that Tobey only opened the door "a crack" before closing it on him. Following that, the defendant forced his way into the home, immediately shoved Tobey, dove at Nieves's legs, and attacked him. A reasonable juror could infer from all of this evidence, including the immediacy and aggression with which he shoved Tobey and attacked Nieves after entering the house, that the defendant had the intent to commit an assault at the time of entry. See Commonwealth v. Lewis, 346 Mass. 373, 377-378 (1963) (intent to commit a crime may be inferred from circumstantial evidence including the defendant's conduct).

The defendant next argues that the B & E conviction and the assault and battery convictions were legally inconsistent because the assault and battery convictions were based on a finding of recklessness, whereas the B & E conviction was grounded on intentional conduct. We disagree.

" 'In limited circumstances,' where the verdicts are legally inconsistent, they must be set aside. For instance, verdicts of guilt involving mutually exclusive crimes, where it is impossible for the Commonwealth to prove the elements of both offenses with respect to a particular defendant, must be vacated and set aside." Commonwealth v. Resende, 476 Mass. 141, 147 (2017) (citation omitted).

Here, contrary to the defendant's argument, the verdicts are not "impossible at law." Commonwealth v. French, 462 Mass. 41, 46 (2012). It was not legally inconsistent for the jury to conclude that the defendant had formed the intent to commit an assault and battery at the time of the B & E, but then committed a reckless battery. As discussed supra, the jury could have concluded that the defendant broke and entered into Tobey's home with the intent to commit an assault and battery upon her. The jury would also have been warranted in finding that, upon entering and seeing Nieves, the defendant shoved Tobey, charged at Nieves's legs, and pulled Tobey's hair, all in a reckless manner, causing physical injury. See Commonwealth v. Welch, 16 Mass. App. Ct. 271, 275 (1983). See also Commonwealth v. White, 363 Mass. 682, 684 (1973) ("In numerous instances this court, upon analyzing the particular facts and the crimes charged, has concluded that allegedly inconsistent verdicts in fact present no inconsistency because the verdicts are capable of logical reconciliation"). Contrast Commonwealth v. Nascimento, 421 Mass. 677, 683 (1996).

Judgments affirmed.

      The defendant was charged with breaking and entering in the nighttime with intent to commit a felony. After the close of evidence and before closing arguments, the Commonwealth moved to amend the charge to breaking and entering with intent to commit a misdemeanor. After confirming on the record that the defendant had no objection, the judge allowed the motion.

      The defendant was accompanied by another male who also lived across the street from Tobey's house.

      The defendant does not challenge the sufficiency of the evidence of (1) breaking, (2) entering, or (3) a building. He solely challenges the sufficiency of the evidence as to the element of intent to commit a misdemeanor therein. We note that the judge correctly instructed the jury that the Commonwealth was required to prove "that the defendant intended to commit a misdemeanor at the time he was alleged to have broken and entered the building in question." See Commonwealth v. Poff, 56 Mass. App. Ct. 201, 203 (2002).

      To prove "reckless" assault and battery, the Commonwealth must show: "(1) that the defendant's conduct involve[d] a high degree of likelihood that substantial harm will result to another, or that it constituted a disregard of probable harmful consequences to another, and (2) that, as a result of that conduct, the victim suffered some physical injury." Commonwealth v. Welch, 16 Mass. App. Ct. 271, 275 (1983) (quotation omitted).


text:
    COMMONWEALTH v. David R. TIBETS.
    17-P-617
    Appeals Court of Massachusetts.
    Entered: January 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On November 1, 2016, the defendant, David R. Tibets, after waiving his right to counsel and his right to a hearing, admitting that he had violated the conditions of his probation, was found in violation of his probation by a District Court judge. On January 4, 2017, the judge revoked his probation and sentenced him to a term of incarceration in the house of correction for eighteen months. Because we agree with the defendant that the judge failed to obtain a valid waiver of the right to counsel and of the right to a hearing, we vacate the order.

Background. The essential facts are not in dispute. On December 22, 2015, while represented by counsel, the defendant admitted to sufficient facts on a complaint charging him with unlawful possession of a class B controlled substance, subsequent offense, in violation of G. L. c. 94C, § 34. After a standard colloquy, the case was continued without a finding to December 20, 2016. The defendant was placed on probation. In addition to the standard conditions of probation, the defendant was ordered to remain drug free and to submit to random drug testing.

On September 30, 2016, the defendant was issued a notice of probation violation and hearing alleging that he had committed a new criminal offense (possession of heroin) the previous day, had failed to provide drug screens, and had "admitted [to the] use of heroin every day for [the] last 6 months." A probation violation hearing took place on November 1, 2016. After the defendant signed a waiver of counsel form and a waiver of the right to a hearing form (which included an admission to the probation violations), the judge (hereinafter, sentencing judge) heard a recitation of the alleged violations and the probation department's recommendation that the conditions of probation be modified, requiring the defendant to enter and complete the "Level III" substance abuse treatment program with the office of community corrections (OCC) and that the case be continued without a finding for one year. The sentencing judge did not revoke probation, but "stayed" final disposition until January 4, 2017. The sentencing judge informed the defendant that if he failed to report to the OCC, he would be sent back to jail and ordered the defendant to pay the monies that he owed to the court. The sentencing judge informed the probation officer that if there were any problems before the next scheduled date, the matter should be immediately brought to his attention.

About one month later, in December, 2016, according to a police report, the defendant was observed using heroin. The probation officer requested a warrant for the defendant's arrest, which was issued. The defendant was served in court on December 9, 2016, with a notice of probation violation and hearing scheduled for December 12, 2016, and was detained. The defendant was brought into court on December 12, 2016; December 16, 2016; and December 21, 2016, and each time the sentencing judge was not available. A different judge conducted the hearing on December 16, 2016, and the defendant, represented by counsel, requested that he be evaluated for a referral to the drug court session of the District Court Department. That judge ordered the referral process to commence, but stated that the final decision would be left to the sentencing judge.

A hearing before the sentencing judge took place on January 4, 2017. The defendant was represented by counsel. The probation officer indicated that according to a police report the defendant was observed "shooting up heroin outside of a ... department store" and that "[n]o charges were brought upon [the defendant] at that time." The probation officer recommended that the defendant's probation be revoked and he be committed to the house of correction for one year. Defense counsel argued that since the hearing on November 1, 2016, the defendant had participated in the Level III program with the OCC, was employed, was performing community service, and had remained drug free until the incident in December, 2016. Defense counsel also stated that the defendant had been brought before the drug court and that he "would probable-most likely [be] welcome[d] ... into the drug court," but that no final decision had been made out of deference to the sentencing judge who was to make the final decision. Defense counsel concluded his argument as follows: "My argument, Your Honor, is pretty clear. He's able to do all the conditions that he's told to do, but he can't help himself because he's a drug addict. That's the whole point behind the drug court, is to take people of his lengthy background of drug use." The sentencing judge interrupted defense counsel to inquire whether the defendant had previously served a sentence of two and one-half years for "possession to distribute." Defense counsel responded: "Exactly, Your Honor, my point. Exactly my point. His extended period of drug use, the charges that are significant to drug use and drug dependence have now elevated him to at least a position where, perhaps, we could stop all of this, get him into drug court and see if they can get a chance to actively work with him, Your Honor." The sentencing judge rejected the drug court alternative and ordered that the defendant to be committed to the house of correction for eighteen months.

Discussion. The principal question presented by this appeal is whether the defendant made a valid waiver of his right to counsel and his right to a hearing when he appeared before the sentencing judge on November 1, 2016. It is settled that the defendant has the right to counsel at a probation violation hearing. See Rule 5(c) of the District/Municipal Courts Rules for Probation Violation Proceedings, Mass. Rules of Court, at 643 (Thomson Reuters 2017) ("The probationer shall be entitled to counsel"). See also Commonwealth v. Pena, 462 Mass. 183, 191 (2012). "Because the right to the assistance of counsel is essential to individual liberty and security, ... [a] waiver must be voluntary and must involve an informed and intentional relinquishment of a known right. The judge must ensure by careful inquiry on the record that the waiver is made with a sense of the magnitude of the undertaking and the disadvantages of self-representation." Commonwealth v. Means, 454 Mass. 81, 89 (2009) (quotation omitted). In the present case, the defendant was facing the potential risk of incarceration for a period of two years. See G. L. c. 94C, § 34.

Here, as in Commonwealth v. Mullen, 72 Mass. App. Ct. 136, 141 (2008), the record indicates that the sentencing judge "made no inquiry of the defendant, nor did [he] provide him with any information." There was no colloquy as required by S.J.C. Rule 3:10, as amended, 416 Mass. 1306 (1993), which governs waivers of the right to counsel. Instead, after directing the defendant to sign the waiver of counsel form, the sentencing judge simply asked the defendant if he had any questions about his waiver of the right to counsel or his right to a hearing. After informing the defendant that counsel could be appointed for him if he was indigent, the sentencing judge made a finding that the defendant had knowingly and voluntarily waived his right to counsel. Although there is no specific series of questions that a judge must ask to establish an adequate basis for a finding that the defendant made a knowing and voluntary waiver of the right to counsel, see Commonwealth v. Barnes, 399 Mass. 385, 390 (1987), in the present case the inquiry by the sentencing judge was woefully inadequate.

The Commonwealth's argument that the sentencing judge could consider the defendant's prior experience with the criminal justice system and that he was represented by counsel on a prior occasion is not a substitute for a "meaningful inquiry" into the advantages of counsel and the risks associated with self-representation. Commonwealth v. Mott, 2 Mass. App. Ct. 47, 52 (1974). We are left with a record that does not permit a reviewing court to have confidence that the defendant had a "subjective understanding of his decision and its consequences." Barnes, 399 Mass. at 391.

For the same reason, the record before us is also insufficient to support the sentencing judge's finding that the defendant made a knowing and voluntary waiver of his right to a hearing in connection with the notice of probation violation. See Commonwealth v. Sayyid, 86 Mass. App. Ct. 479, 489 (2014). "It is understandable that in the hurly-burly of our increasingly busy District Courts a premium is placed on the prompt disposition of cases. Yet it is precisely in such an environment that we must ensure that important things are done right." Commonwealth v. Hilaire, 51 Mass. App. Ct. 818, 824 (2001).

Conclusion. The order revoking the defendant's probation is vacated and the case is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded.

      We add this final note about the defendant's argument that the sentencing judge abused his discretion in electing to revoke his probation and impose a sentence of incarceration on January 4, 2017, after acknowledging that as far back as November 1, 2016, the defendant had a longstanding problem with drugs. It is not within our power to review a lawful sentence. See, e.g., Commonwealth v. Derouin, 31 Mass. App. Ct. 969 (1992), and cases cited. Nevertheless, we believe notice should be taken of the "important and special role of the drug court in achieving important public policy interests." Deputy Chief Counsel for the Pub. Defender Div. of the Comm. for Pub. Counsel Servs. v. Acting First Justice of the Lowell Div. of the Dist. Ct. Dept., 477 Mass. 178, 187 (2017). The Massachusetts Trial Court has expanded the number of drug courts and encourages judges to recommend appropriate defendants to be screened for participation in such programs. See Arrowood, "Racing in the Right Direction:" Specialty Courts in Massachusetts, 60 Boston Bar J. 1 (Spring 2016) ; Ellis, Drug Courts Impact Participants, Courts, and Communities, 59 Boston Bar J. 12 (Winter 2015) ; Sullivan, The Development and Implementation of Specialty Courts in Massachusetts, 59 Boston Bar J. 9 (Winter 2015). See also Latessa & Reitler, What Works in Reducing Recidivism and How Does It Relate to Drug Courts?, 41 Ohio N.U. L. Rev. 757, 775 (2015) (Well-designed drug courts produce a statistically significantly greater reduction in recidivism than incarceration).


text:
    COMMONWEALTH v. Christopher R. BEDNARZ.
    17-P-1054
    Appeals Court of Massachusetts.
    Entered: January 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Christopher R. Bednarz, was convicted of one count of operating a motor vehicle while under the influence of intoxicating liquor, second offense; negligent operation of a motor vehicle; and failing to stop for a police officer. On appeal, he challenges the sufficiency of the evidence. We affirm.

Sufficiency. When reviewing the denial of a motion for a required finding of not guilty, we must consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

a. Operation. First, the defendant argues that there was insufficient evidence to support a finding that he operated the vehicle, as no officer observed him driving the speeding vehicle.

Direct evidence is not required to show that the defendant operated the vehicle, and "a conviction may rest entirely on circumstantial evidence." Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 438 (2002) (quotation omitted).

The Commonwealth presented testimony at trial from one detective and one officer. The detective testified that he observed a vehicle driving at a fast speed in a forty-five mile per hour area, and confirmed the vehicle's speed on the moving radar as eighty-two miles per hour. Although the detective activated his emergency lights on his marked cruiser to stop the vehicle, the vehicle accelerated and the detective lost sight of it. The detective described the vehicle as a "small gray-colored car," a "sedan-type vehicle," possibly a Mazda, and requested that an officer check a residence on Church Lane where there may have been an individual with a matching vehicle. Within a few minutes, an officer traveled to Church Lane and observed a small gray vehicle in a driveway and the defendant standing alongside it on the driver's side. Upon arriving at the residence, the detective observed a gray-colored vehicle with exterior characteristics matching the vehicle that he previously observed. He also observed that the vehicle was emitting heat from the engine.

The defendant's statements to the police indicated that he had been driving: the defendant stated that he did not see the officer and stop because he had "tunnel vision," the defendant estimated that he was driving approximately fifty-five miles per hour, the defendant told officers that he was coming from his brother's house in Ware and that he stopped for a beer at a bar named Gabe's, and the defendant asked for the officers "to let him go with a speeding ticket." The area where the detective observed the small gray vehicle speeding was in the direction a person coming from Gabe's would be traveling. Additionally, the defendant told the officers that the keys to the vehicle were in his pocket, and the officers recovered keys on the defendant matching the make of the vehicle in the driveway.

The evidence, viewed in its totality and in the light most favorable to the Commonwealth, supported the inference that the defendant was operating the vehicle, and the jury could have concluded so beyond a reasonable doubt.

b. Intoxication. The defendant also argues that there was insufficient evidence to prove that alcohol diminished his ability to operate a motor vehicle where there was also evidence that the defendant smoked marijuana.

"[I]n a prosecution for operating a motor vehicle while under the influence of intoxicating liquor, the Commonwealth must prove beyond a reasonable doubt that the defendant's consumption of alcohol diminished the defendant's ability to operate a motor vehicle safely. The Commonwealth need not prove that the defendant actually drove in an unsafe or erratic manner, but it must prove a diminished capacity to operate safely." Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). "It is not necessary that alcohol be the sole or exclusive cause. It is enough if the defendant's capacity to operate a motor vehicle is diminished because of alcohol, even though other, concurrent causes contribute to that diminished capacity." Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988).

The detective testified that the defendant admitted that he had been drinking, while claiming that he had consumed only one sixteen-ounce beer. Additionally, the detective made observations of the defendant: "[v]ery red, bloodshot, glassy eyes. Slurred speech. Difficult to understand. Moderate odor of an alcoholic beverage emitting from him, and the unsteadiness of his feet." The defendant moved in a slow, lethargic manner, was swaying side to side, and was unsteady on his feet. While moving to the police cruiser upon arrest, the officers had to help guide the defendant. Both witnesses believed the defendant to have been drunk. This evidence was sufficient for the jury to conclude that alcohol diminished the defendant's capacity to operate a motor vehicle, even if the defendant had also smoked marijuana. See Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011) ("obvious" signs of intoxication included "slurred speech ... strong odor of alcohol, poor balance, and glassy, bloodshot eyes").

Judgments affirmed.

      Prior to trial, one charge of operating a motor vehicle while under the influence of drugs was dismissed upon the request of the Commonwealth.

      The vehicle was a Nissan sports car.

      In the conclusion of his brief, the defendant also summarily asserts that his conviction of failing to stop for a police officer should also be reversed. The defendant's cursory statement did not rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). He also made no additional arguments specific to the negligent operation conviction, which we affirm without further discussion.


text:
    COMMONWEALTH v. Luis MERCADO.
    16-P-780
    Appeals Court of Massachusetts.
    Entered: January 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   This is the defendant's second appeal to this court. His convictions of rape, two counts of assault and battery by means of a dangerous weapon, one count of assault by means of a dangerous weapon, and three counts of violating an abuse prevention order were affirmed on direct appeal. Commonwealth v. Mercado, 82 Mass. App. Ct. 1111 (2012). Now, the defendant contests the denial of his subsequent motion for new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001).

Several of the defendant's claims of error were previously adjudicated and decided against him in his direct appeal. "Collateral estoppel guarantees that 'when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.' " Commonwealth v. Cabrera, 449 Mass. 825, 829 (2007) (quotation omitted). Thus, the defendant is estopped from relitigating the identical issues decided in the direct appeal because the defendant had "sufficient incentive to litigate the issues fully" in his direct appeal, the defendant cites to no intervening case law, and his direct appeal resulted in a final judgment on the merits. Ibid.

The defendant's argument that his trial counsel was ineffective in failing to move to strike evidence of the defendant's methadone use is likewise without merit, as the direct appeal determined that admission of the evidence did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 295-296 (2002) (equating ineffective assistance of counsel standard to substantial risk standard in cases where waiver stems from an omission by defense counsel). In addition, the defendant's claims that the translated telephone conversation is inaccurate and was not properly authenticated, and that his confrontation rights were violated by not producing the translator, were waived when he failed to assert them at trial, or in his first appeal. See Rodwell v. Commonwealth, 432 Mass. 1016, 1017-1018 (2000). In any event, we discern in the defendant's claims no substantial risk of a miscarriage of justice, for substantially the reasons explained in the Commonwealth's brief at pages sixteen to eighteen. There was no abuse of discretion in the judge's denial of the motion for new trial.

Order denying motion for new trial affirmed.

      In his direct appeal, the defendant argued that the judge erroneously admitted evidence of the defendant's methadone use, that the evidence of assault and battery by means of a dangerous weapon was insufficient, and that the prosecutor's closing argument improperly vouched for the victim's credibility and improperly asked the jury to hold the defendant accountable. These contentions comprise arguments I through III of the defendant's brief in the current appeal.


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    Annie GRIFFIN v. BOSTON HOUSING AUTHORITY.
    17-P-613
    Appeals Court of Massachusetts.
    Entered: January 4, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The Boston Housing Authority (BHA) provides housing assistance to Annie Griffin, a participant in the United States Department of Housing and Urban Development (HUD) Housing Choice Voucher (Section 8) program. In January, 2015, the BHA proposed to terminate Griffin's housing subsidy based on three alleged violations of her Section 8 "family obligations." Following a grievance hearing on June 15, 2015, a hearing officer authorized the termination on two grounds. On certiorari review, a Housing Court judge upheld the decision. See G. L. c. 249, § 4. Because we conclude that substantial legal error adversely affected Griffin's material rights, we vacate the judgment. See Figgs v. Boston Hous. Authy., 469 Mass. 354, 361-362 (2014).

At an informal hearing, the hearing officer first determines, as a factual matter, whether the participant violated her "family obligations." If such a finding is made, as it was in this case, the hearing officer next determines whether a sanction short of termination is warranted. At this second step, the hearing officer is required to "take into consideration all relevant circumstances and any mitigating circumstances presented by the Participant." BHA Section 8 Administrative Plan § 13.7.5(j). See 24 C.F.R. § 982.552(c)(2)(i) (2017) ; Carter v. Lynn Hous. Authy., 450 Mass. 626, 634 (2008). Because due process protections attach to these proceedings, the participant is entitled to a written decision explaining the evaluation of the mitigation factors and findings of fact on "all relevant circumstances." 24 C.F.R. § 982.552(c)(2)(i). See Figgs v. Boston Hous. Authy., supra at 356 n.3; Wojcik v. Lynn Hous. Authy., 66 Mass. App. Ct. 103, 112 (2006). In this case, the hearing officer's decision did not comport with these principles of law for three reasons.

First, the decision of the hearing officer established that he improperly conflated the two parts of the analysis. Griffin testified that she had no involvement in the armed robbery and no knowledge of the ammunition and rifle scope found in her apartment. As the fact finder, the hearing officer was entitled to reject Griffin's defense. See Seales v. Boston Hous. Authy., 88 Mass. App. Ct. 643, 646 (2015). However, once he found that she committed the violations, he should not have rejected all potentially mitigating factors from consideration. This sole focus on culpability was contrary not only to Massachusetts case law, but also to HUD policy. See Boston Hous. Authy. v. Garcia, 449 Mass. 727, 735-736 & n.14 (2007) ; Carter v. Lynn Hous. Authy., supra at 638 n.20.

Second, some of the hearing officer's reasoning shows that he placed an unfair burden of production on Griffin, a pro se litigant at the time. If the hearing officer intended to find that future violations by Griffin were likely, that conclusion was not supported by substantial evidence in this record.

Third, although the hearing officer summarized some of the mitigating circumstances, he improperly omitted from his decision any mention of relevant evidence provided by Griffin in support of her request for a lesser sanction. This constituted legal error. See Carter v. Lynn Hous. Authy., supra at 636.

The hearing officer had broad discretion to decide an appropriate remedy for what we agree were serious program violations. As a result of the absence of findings here, we cannot discern from the decision how, if at all, the hearing officer exercised his discretion with respect to all the relevant circumstances. See Costa v. Fall River Hous. Authy., 453 Mass. 614, 632 (2009), quoting from Carter v. Lynn Hous. Authy., 450 Mass. at 636-637 n.16 (without adequate record that includes carefully drafted findings, "no reviewing court can determine whether a hearing officer has fulfilled his statutory or regulatory obligations").

A new informal hearing conducted in accordance with due process principles is required. The judgment in favor of the BHA is vacated. A new judgment shall enter remanding the matter to the BHA for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded.

      The BHA's proposed termination arose from Griffin's alleged participation in an armed robbery and the discovery by police of ammunition and a rifle scope in her apartment. The hearing officer concluded that Griffin engaged in violent criminal activity and committed a serious or repeated violation of the lease. See 24 C.F.R. § 982.551(e), (l) (2017) ; BHA Section 8 Administrative Plan § 13.5.2(d), (k); BHA Model Lease § 10(a).

      In an earlier appeal in this case, we affirmed an order issued by the same judge that required the BHA to continue paying the subsidy pending the result of this appeal. See Griffin v. Boston Hous. Authy., 92 Mass. App. Ct. 1102 (2017).

      In order to participate in the Section 8 program, the family must agree to comply with thirteen different "family obligations," which include such requirements as supplying required information to the BHA upon request, maintaining housing quality standards, providing notice to the BHA of lease termination or eviction, and, relevant to this appeal, refraining from engaging in certain criminal activity. A violation of any obligation may result in the termination of assistance.

      The hearing officer stated that the "[f]ailure to uphold termination based on the mitigating circumstances in this case would be tantamount to accepting Tenant's defense without any evidence to support it and thereby find her wholly free of responsibility for what the reliable evidence shows occurred."

      In justifying his failure to mitigate the proposed termination, the hearing officer offered this vague statement: "There [we]re no objective facts to rely on to show that future violations are unlikely to occur."

      As the hearing officer noted, Griffin testified that she had participated in the Section 8 program without incident for seven years. She further testified that this was the "first time ever being in any ... type of trouble." There was no evidence of any trouble or other violations committed by Griffin before or after the alleged violations at issue in this litigation. It was also undisputed that Griffin's landlord has never sought to evict her. See Lowell Hous. Authy. v. Melendez, 449 Mass. 34, 35, 39 (2007) (court may properly consider defendant's postjudgment conduct when determining whether eviction was proper).

      For example, Griffin testified that she could not afford market rent, and that if she lost her subsidy, she and her disabled son would "be out on the street."


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    Eswin E. HERNANDEZ-LEMUS v. Maria E. ARIAS-DIAZ.
    16-P-1102
    Appeals Court of Massachusetts.
    Entered: January 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On October 6, 2015, Eswin E. Hernandez-Lemus (father) filed a petition in the Probate and Family Court to be granted custody of his son, Edwin E. Hernandez-Arias (Edwin). The father also filed a "Motion for Special Findings of Fact and Rulings of Law," requesting that the probate judge enter certain special findings as are necessary to establish Edwin's eligibility to apply to the United States Citizenship and Immigration Services for special immigrant juvenile (SIJ) status under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(27)(J) (2012). The probate judge granted the father's motion for sole legal and physical custody of Edwin but declined to enter the requested special findings. This timely appeal followed. After review of the record before us, we conclude that the probate judge's findings and disposition are supported by that record. We thus affirm.

Judgment affirmed.

      In order for an alien juvenile to be eligible to seek SIJ status, the following must be satisfied: (1) that the juvenile is dependent on a "juvenile court," or under the custody of an agency or department of a State, or an individual or entity appointed by the court or State; (2) that reunification with one or both of the juvenile's parents "is not viable due to abuse, neglect, abandonment, or a similar basis found under State law"; and (3) that it would not be in the juvenile's best interest to return to his or her country of nationality. 8 U.S.C. § 1101(a)(27)(J)(i)-(ii). See Guardianship of Penate, 477 Mass. 268, 273-274 (2017). "It is not the [State] court's role to engage in an immigration analysis or decision." Recinos v. Escobar, 473 Mass. 734, 738 (2016). A judge's entry of special findings is not a final determination on whether the juvenile meets the SIJ status requirements, rather, such special findings are the first step in the SIJ status process. Ibid.


text:
    COMMONWEALTH v. David G. HOWES.
    17-P-75
    Appeals Court of Massachusetts.
    Entered: January 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, David G. Howes, appeals from the order denying his motion to vacate his guilty pleas to two counts of indecent assault and battery on a person fourteen years of age or older. , We affirm.

Background. In May, 2016, the parties appeared for trial before a District Court judge. When the case was called, both the Commonwealth and defense counsel (later, plea counsel) answered ready for trial. At a sidebar conference, defense counsel requested that the case be resolved with a continuance without a finding. The judge rejected the proposed disposition and ordered a ten-minute recess to "pull the jury" for trial. At the end of the recess, defense counsel informed the judge that the defendant would like a new attorney, that the defendant contacted a new attorney, and that the new attorney had given dates when he would be available. The judge declined to continue the trial where the case was "368 days old," it had been pending in a trial posture for three months, both parties answered ready for trial at first call without raising the issue of new counsel, and the Commonwealth was prepared with an out-of-State witness. After three additional recesses, the defendant pleaded guilty to each charge.

In July, 2016, the defendant filed the motion to vacate his guilty pleas. In September, 2016, the same judge who accepted the pleas denied the motion without an evidentiary hearing, largely for the same reasons previously stated on the record before the pleas. The judge did not credit the claim that the attorney-client relationship irretrievably had broken down in the short time after the rejection of the proposed disposition at sidebar. In November, 2016, the defendant moved for reconsideration of the order denying the motion, which the judge denied. The defendant timely appealed both orders.

Discussion. A motion to vacate a guilty plea is treated as a motion for new trial. Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 637 (2007). "Disposition of such a motion is within the judge's discretion, but a rigorous standard must be applied and a judge may only allow such a motion if it appears that justice may not have been done." Ibid. (quotation omitted). "The judge may rule on the issue or issues presented by such motion on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits." Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001). "Whether an evidentiary hearing should be held on such a motion depends not just on the defendant's presenting a serious or substantial issue, but also on his making a credible and adequate showing thereon." Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 551 (2002).

A plea is voluntary when it is "free from coercion, duress, or improper inducements." Hiskin, supra at 638. The defendant argues that his pleas were involuntary and the result of ineffective assistance of counsel, and requests an evidentiary hearing for a judge to consider plea counsel's unpreparedness for trial. Specifically, the defendant contends that he raised a substantial issue where he provided affidavits from himself and now-appellate counsel, as well as a transcript of a voicemail and a copy of an electronic mail message sent to his now-appellate counsel in the early hours of the day the case was called for trial, each of which he argues demonstrates plea counsel's unpreparedness for trial.

The judge was not obligated to credit or to give weight to either affidavit. See Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997) ("The credibility, weight, and impact of the affidavits in support of the motion are entirely within the judge's discretion"). Although the defendant raised concerns to his now-appellate counsel before the pleas, it is not surprising that a defendant set to stand trial on serious charges was stressed, questioning his counsel, or expressing fear of the outcome.

Plea counsel's statements on the record contradict the defendant's assertions on appeal, where plea counsel told the judge that he "[c]ertainly" was ready for trial, and later stated that this was the first time that the defendant indicated a breakdown in communication. Moreover, the defendant did not submit an affidavit from plea counsel or the defendant's expert, and now-appellate counsel did not opine that plea counsel's file was in any way inadequate.

Furthermore, the defendant now contradicts his sworn responses during the plea colloquy, where he had the opportunity to raise any issues. The defendant responded affirmatively when asked if he was "giving up all these rights voluntarily, no one's forced you, threatened you, coerced you, you're doing this of your own free will." See Hiskin, 68 Mass. App. Ct. at 640.

The defendant's case was pending for more than one year on the day of the scheduled trial, and plea counsel appeared on behalf of the defendant on past court dates, filed pretrial conference reports, arranged an expert, and previously communicated with the defendant. The judge did not abuse his discretion in denying the defendant's motion to vacate his guilty pleas without an evidentiary hearing.

Order denying motion to vacate guilty pleas affirmed.

Order denying consolidated motion for reconsideration affirmed.

      The complaint charged the defendant with one count of indecent assault and battery and one count of rape. The second count was reduced to indecent assault and battery during a pretrial conference.

      The defendant also appeals from the order denying his consolidated motion for reconsideration.

      The sidebar conference was not recorded. However, the judge summarized the discussion in the memorandum of decision denying the motion to vacate and the defendant does not dispute that summary.

      The defendant's proposed attorney later represented the defendant on the motion to vacate the guilty pleas and currently represents him on appeal.

      The defendant had an expert witness on standby to testify if a trial started that day.

      A guilty plea must be both intelligently and voluntarily made. See Commonwealth v. Furr, 454 Mass. 101, 106-107 (2009). The defendant only challenges the voluntariness of the pleas.

      The defendant contends that the expert was contacted only shortly before the scheduled trial date and would testify at an evidentiary hearing and confirm plea counsel's unpreparedness.


text:
    COMMONWEALTH v. Anthony QUINK.
    17-P-389
    Appeals Court of Massachusetts.
    Entered: January 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from his conviction, following a bench trial, of assault by means of a dangerous weapon. See G. L. c. 265, § 15B(b ). We affirm.

The defendant claims that the Commonwealth failed to introduce evidence sufficient to support a conviction under G. L. c. 265, § 15B(b ). We view the evidence in the light most favorable to the Commonwealth to determine whether it is sufficient to allow any rational trier of fact to find the existence of the essential elements of the charged crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). "[A]n assault may be accomplished in one of two ways-either by an attempted battery, or by putting another in fear of an immediately threatened battery." Commonwealth v. Gorassi, 432 Mass. 244, 247 (2000). To convict under the theory of immediately threatened battery, "the Commonwealth must prove that the defendant engaged in 'objectively menacing' conduct with the intent to put the victim in fear of immediate bodily harm." Id. at 248, quoting from Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 524 n.7 (1995), S.C., 421 Mass. 610 (1996).

The judge heard testimony that when the victim arrived at 150 Ware Street the defendant was outside using a crossbow. The victim remained in his vehicle in the driveway while conversing with his wife through the vehicle's open window, while she was leaning on the door. The victim testified that during his conversation, he heard the sound of an arrow being shot from the crossbow and then the "click back" of the crossbow being pulled back. Upon hearing those sounds, the victim, being familiar with crossbows, thought that the crossbow was "locked and loaded." The victim testified that the defendant was approximately ten yards away from the victim's vehicle when the defendant lifted the crossbow, aimed it at the victim, and imitated the sound of an arrow being shot. The victim testified that the position of his wife did not block his line of sight to the defendant. The defendant's actions frightened the victim and he quickly left the property, immediately driving to the police station to report the incident.

Viewed in the light most favorable to the Commonwealth, the evidence was sufficient to allow a rational fact finder to conclude that the defendant engaged in objectively menacing conduct, witnessed by the victim, that put the victim in fear of immediate bodily harm. See Commonwealth v. Arias, 78 Mass. App. Ct. 429, 435 (2010) (rational fact finder could reasonably conclude that threatened battery occurred where evidence showed that defendant lurched his truck at victim who was standing a few feet away and was in imminent fear for his life).

There is no merit in the defendant's argument that he did not possess the requisite intent to place the victim in fear of an imminent threatened battery because the defendant would not risk hitting the victim's wife. The judge was permitted to draw an inference that a reasonable person would understand that the defendant's conduct of aiming his crossbow at the victim and mimicking the sound of an arrow being fired would place the victim in fear. See Commonwealth v. Casale, 381 Mass. 167, 173 (1980) ("The inferences drawn by the [fact finder] need only be reasonable and possible and need not be necessary or inescapable").

Judgment affirmed.

      The defendant does not contest the dangerous weapon element of the charged crime.


text:
    Matthew GOULD & others v. PLANNING BOARD OF FALMOUTH & others.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    FLETCHER TILTON, P.C. v. Ralph F. SBROGNA & another.
    17-P-394
    Appeals Court of Massachusetts.
    Entered: January 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Sbrogna & Brunelle LLP, intervener.

   In earlier proceedings the plaintiff law firm sought an order compelling the defendant, Ralph Sbrogna (formerly one of the firm's attorneys), to return to the firm a contingency fee Sbrogna retained after he separated from the firm. A Superior Court judge ruled on summary judgment that the firm was entitled to the entirety of the disputed fee. After summary judgment entered, the firm sought an award of its attorney's fees and costs, arguing that Sbrogna's defense had been advanced in bad faith. See G. L. c. 231, § 6F. The same Superior Court judge denied the firm's § 6F motion, concluding that "this Court cannot say that the legal position that Sbrogna took regarding the contingent fee was frivolous or advanced in bad faith."

Sbrogna appealed the summary judgment to a full panel of this court; we affirmed that judgment in an unpublished order. Fletcher Tilton, P.C. v. Sbrogna, 91 Mass. App. Ct. 1105 (2017) (Sbrogna I ). The firm appealed the judge's § 6F order to the single justice. After we released the Sbrogna I order, the single justice affirmed the Superior Court judge's § 6F order. In this appeal, we consider the single justice's order.

Despite the firm's attempt to reargue the underlying merits, our review of the single justice's order is "of extremely limited scope." Danger Records, Inc. v. Berger, 444 Mass. 1, 11 (2005). "Thus, we review the single justice's order only for abuse of discretion or other error of law." Fronk v. Fowler, 456 Mass. 317, 328 (2010). The record before us demonstrates no such abuse or other error of law. To the contrary, we concur with both the Superior Court judge and the single justice that, as perhaps foreshadowed in Sbrogna I when we denied the firm's request for its appellate attorney's fees and costs, while Sbrogna's defenses were "weak, we also do not find them so lacking in substance as to warrant" imposition of § 6F sanctions.

Order of the single justice affirmed.


text:
    COMMONWEALTH v. Max CHARLES, Jr.
    17-P-503
    Appeals Court of Massachusetts.
    Entered: January 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury convicted the defendant of assault and battery by means of a dangerous weapon (a knife). On appeal, he claims prejudicial error in the trial judge's refusal to instruct the jury on self-defense. We affirm.

Background. According to the testimony of the victim, the defendant attacked him with a knife, first striking him in the head with the knife and then stabbing him in the chest. The defendant testified that he confronted the victim and another person having an altercation outside his apartment, and that after he told the men to leave, the victim attacked him with the knife. Although the defendant stated that he grabbed the victim's wrist to defend himself from the knife attack, he made no claim that he then, in self-defense, struck or stabbed the victim with the knife. To the contrary, the defendant testified that he did not have any idea how the victim was injured that night.

Discussion. "[A] self-defense instruction must be given when deadly force was used only if the evidence, viewed in the light most favorable to the defendant, permits at least a reasonable doubt that the defendant reasonably and actually believed that he was in 'imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force.' " Commonwealth v. Pike, 428 Mass. 393, 396 (1998), quoting from Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). In this case, the defendant categorically denied attacking the victim with the knife, and he claimed that the victim must have been injured at some time other than his encounter with him. Had the jury credited the defendant's testimony, they would have had a basis for acquitting him. However, we agree with the judge that neither the defendant's testimony nor any other evidence supported a defense of self-defense. Hence, there was no error in the judge's refusal to instruct the jury on that defense. See Commonwealth v. Maguire, 375 Mass. 768, 772 (1978) (a self-defense "instruction need not be given where there was insufficient evidence to support a theory of self-defense"). See also Commonwealth v. Hakkila, 42 Mass. App. Ct. 129, 130 (1997) (no substantial risk of a miscarriage of justice occurred when the judge refused to give self-defense instruction where the defendant "flatly denied inflicting [the victim's] injuries").

Judgment affirmed.

      The jury acquitted the defendant of assault and battery for the purpose of collecting a loan, and intimidation of a witness.

      The assault and battery charge against the defendant involved the use of deadly force. See Commonwealth v. Toon, 55 Mass. App. Ct. 642, 644 n.3 (2002) ("[U]se of a knife to stab [the victim] is the use of deadly force").


text:
    Richard GUERRIERO v. TOWN OF HANOVER.
    17-P-659
    Appeals Court of Massachusetts.
    Entered: January 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, Richard Guerriero, appeals from a judgment dismissing his amended complaint against the town of Hanover. He maintains that his complaint sufficiently alleged violations of: (1) articles 4 and 29 of the Declaration of Rights of the Massachusetts Constitution (Declaration of Rights); (2) the full faith and credit clause, United States Constitution Art. IV, § 1 (full faith and credit clause); and (3) the Massachusetts Civil Rights Act, G. L. c. 12, § 11I. We affirm.

Discussion. On appeal, "[w]e review the allowance of a motion to dismiss de novo." Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). All allegations made in the amended complaint are taken as true and we draw every reasonable inference in the plaintiff's favor. See Burbank Apartments Tenant Assn. v. Kargman, 474 Mass. 107, 116 (2016). To survive a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), as amended, 365 Mass. 754 (1974), the facts alleged in the amended complaint, "and the reasonable inferences drawn therefrom, must ' "plausibly suggest[ ]" ... an entitlement to relief.' " Flagg v. AliMed, Inc., 466 Mass. 23, 26-27 (2013), quoting from Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).

Guerriero alleges the following. In May, 2014, "the Vermont Superior Court issued a Certificate of Expungement related to certain matters regarding [the plaintiff] that had occurred in Vermont in 1996." In December, 2015, the Hanover, Massachusetts, police department sent an information request regarding Guerriero to the Burlington, Vermont, police department. In response, the Burlington police department sent the Hanover police department information that was subject to the 2014 expungement order. A few months later, the Burlington police department notified the Hanover police department that the information was sent in error, and asked the Hanover police department to destroy the information and cease considering it. The Hanover police department declined to destroy the records. In June, 2016, the Vermont Superior Court issued another Certificate of Expungement relating to a different matter "regarding [the plaintiff] that had occureed [sic ] in Vermont in 1996."

Counts I and II of the amended complaint allege violations of art. 4 and art. 29 of the Declaration of Rights; count III of the plaintiff's amended complaint alleges a violation of the full faith and credit clause.

In his appellate brief, Guerriero assumes that there is a direct right of action under both the Declaration of Rights and the Federal full faith and credit clause. This suggestion is made without citation to controlling authority. This "abbreviated and conclusory claim does not rise to the level of appellate argument." Adams v. Adams, 459 Mass. 361, 392 (2011). Further, the plaintiff provides no authority for the proposition that his rights under these provisions have been violated. These contentions likewise do not rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011).

It appears from the briefs that the genesis of this dispute lies in the request of the town of Hanover (town) for information pertaining to the plaintiff's application for a gun permit, and the town's claim that it has the right to retain the information in connection with that application. However, Guerriero did not appeal from the denial of the permit, he has not made any allegations concerning the permit, and that issue is not before us.

Count IV of the amended complaint does allege a violation of G. L. c. 12, § 11I, which would provide a vehicle for any claims of constitutional violations. However, the town is a municipality and is immune from claims under § 11. See Howcroft v. Peabody, 51 Mass. App. Ct. 573, 591-593 (2001) (municipalities and those acting in their official municipal capacities are not "persons" within the meaning of the statute).

Even if the town fell within the statute's coverage, Guerriero fails to allege sufficient facts to show the requisite existence of "threats, intimidation, or coercion." See Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474 (1994). The plaintiff alleges no threat or use of force. See Kennie v. Natural Resources Dept. of Dennis, 451 Mass. 754, 763 (2008) ("Both threats and intimidation often rely on an element of actual or threatened physical force"). Nor has he pleaded "physical, moral, or economic" coercion sufficient to satisfy the statute's requirements. Ibid. Here, the town did not attempt to force the plaintiff to do anything. It did not threaten to keep his records; it asserted a right to do so. "[A] direct deprivation of rights, even if unlawful, is not coercive because it is not an attempt to force someone to do something the person is not lawfully required to do." Swanset Dev. Corp. v. Taunton, 423 Mass. 390, 396 (1996), quoting from Freeman v. Planning Bd. of W. Boylston, 419 Mass. 548, 565, cert. denied, 516 U.S. 931 (1995). Contrast Kennie, supra. Guerriero alleges that he is concerned about how and when his records may be used, but that is a direct consequence of the town's decision, not an act of coercion.

The complaint was properly dismissed.

Judgment affirmed.

      Article 4 of the Declaration of Rights states:
      "The people of this [C]ommonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, which is not, or may not hereafter, be by them [expressly] delegated to the United States of America in Congress assembled."
      Article 29 provides in pertinent part:
      "It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit."

      For example, there is varying authority within the circuits of the United States Court of Appeals whether, or to what extent, a claimed violation of the full faith and credit clause may be brought under 42 U.S.C. § 1983. Compare, e.g., Adar v. Smith, 639 F.3d 146, 151-157 (5th Cir.), cert. denied, 565 U.S. 942 (2011), with Finstuen v. Crutcher, 496 F.3d 1139, 1156 (10th Cir. 2007), and Rosin v. Monken, 599 F.3d 574, 576-577 (5th Cir. 2010). See Rohlfing, Full Faith and Credit and Section 1983, 75 U. Pitt. L. Rev. 121 (2013). The plaintiff did not plead a § 1983 claim, and these issues have not been addressed on appeal.


text:
    Anetra S. WARREN v. Chris BARNES.
    17-P-692
    Appeals Court of Massachusetts.
    Entered: January 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In this action, the plaintiff (mother) sought to modify a 2005 Virginia decree addressing custody of her son. The mother now appeals the dismissal of that action by a Probate and Family Court judge. We affirm.

The Virginia decree, entered in 2005 by consent, placed custody of the son with his maternal grandmother. The mother, grandmother, and son all moved to Massachusetts in 2008 and have lived here since. In 2014, the mother filed, in Virginia, a petition to modify the 2005 decree so that she could assume custody of her son. A Virginia court declined jurisdiction, finding that Massachusetts now was the appropriate forum to consider custody issues. The mother then filed the modification complaint now before us. She does not attack the original Virginia decree's validity as not being in "substantial conformity" with Massachusetts law, and the Probate and Family Court judge had authority to modify the Virginia custody decree. See G. L. c. 209B, § 2(e ), inserted by St. 1983, c. 680, § 1. See also G. L. c. 209C, § 10(d ), inserted by St. 1986, c. 310, § 16; Redding v. Redding, 398 Mass. 102, 105-106 (1986).

Nonetheless, the judge properly could modify the decree only if he found that "a substantial change in the circumstances of the parties or the child [had] occurred and [found] modification to be in the child's best interests." G. L. c. 209C, § 20, as amended by St. 1995, c. 38, § 175. The judge found to the contrary on both points.

The mother asserted that she is now "a full-grown woman," suggesting that her gains in maturity warrant a change in custody. In addition, construing the mother's argument liberally, she may also have asserted that the son's recent emotional and social difficulties constituted a changed circumstance. While such changes might, in a proper case, justify modification, we discern no error in the judge's conclusion that a change was not appropriate here. For example, the judge did not err in concluding, based on the maternal grandmother's testimony and a letter from the son's doctor, which the judge deemed credible, that the son's recent emotional problems were caused by the mother's own actions and, therefore, did not constitute an appropriate ground to modify the existing decree.

Similarly, the judge's conclusion that a custody change would not be in the son's best interests is also well supported in the record. That conclusion was based on, among other things, the mother's relative lack of contact with the son over most of his life, the son's evident well-being after being placed in the grandmother's custody, the son's adverse reaction to the mother's announced intention to change custody, the grandmother's appropriate response to the son's reaction, and the mother's presently unsettled and unexplained living circumstances. The judge also properly relied on the mother's lack of "any reasonable insight to [the son's] problems, or her primary role (via her erratic, inappropriate and at times violent behavior) in (1) the 2005 transfer of [the son's] custody to [the grandmother], and (2) [the son's] current problems evolving from [the mother's] inappropriate and damaging conversation ... with [the son] on June 4, 2014."

The judge was in the best position to consider the weight and credibility of the evidence, and we will not overturn his findings absent a clear error of law evident on the record or findings that have no support in the evidence. Freedman v. Freedman, 49 Mass. App. Ct. 519, 521-522 (2000). Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 774 (2006). While the mother disagrees with the judge's credibility assessments and weighing of the evidence, she has not demonstrated that the judge's findings of fact are clearly erroneous. Nor has she shown that the judge abused his considerable discretion in declining to change the custody award. See Murphy v. Murphy, 82 Mass. App. Ct. 186, 193 (2012) ("A custody determination presents the trial judge with a classic example of a discretionary decision.... In view of the trial judge's superior position to observe witnesses and weigh evidence, we review only for abuse of discretion" [quotation omitted] ).

Judgment affirmed.

      Section 2(e ) provides in relevant part: "If a court of another state has made a custody determination in substantial conformity with this chapter, a court of the commonwealth shall not modify that determination unless (1) ... such court has declined to assume jurisdiction to modify its determination and (2) a court of the commonwealth now has jurisdiction pursuant to this chapter."

      Section 10(d ) provides that a Probate and Family Court judge may award custody to "a person who is not a parent of the child" if, as originally was the case here, such person "requests custody," the custody "is in the best interests of the child," and the child's parents consent.

      Contrary to the mother's suggestion, the judge did not find that her other children were not in the mother's custody. Instead, the judge clarified that the Department of Children and Families temporarily placed the mother's two other children with the grandmother for "a three month period in 2012, while [the mother] was incarcerated."


text:
    COMMONWEALTH v. Anthony WILLIAMS.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    Apurv GUPTA & another v. QUINCY MEDICAL CENTER, a Steward Family Hospital, Inc., & another.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    PEABODY PROPERTIES, INC. v. Muqeedah SALAAM.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Saul SANTANA.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    Susan RUFO & another v. WASHINGTON OAK SQUARE LIMITED PARTNERSHIP & others.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    ZONING BOARD OF APPEALS OF WOBURN v. HOUSING APPEALS COMMITTEE & others.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    George R. COOPER v. Karen COOPER.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.
   Mr. Justice Kafker did not participate.


text:
    COMMONWEALTH v. Trent LINDBERG.
    17-P-436
    Appeals Court of Massachusetts.
    Entered: January 10, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On October 21, 2011, the defendant pleaded guilty to youthful offender indictments charging him with assault with intent to rape, indecent assault and battery on a person over fourteen years of age, burglary, and larceny from a building. He received a combination sentence pursuant to G. L. c. 119, § 58, of commitment to the Department of Youth Services (DYS) until age twenty-one, and a commitment to State prison for a term of six to ten years, suspended with probation until he reached age twenty-five. A special condition of his probation was to successfully complete his DYS commitment.

In April of 2013, the defendant was released from DYS custody. A few months later in June, the sentencing judge found a probation violation for failing to stay away from the victim's residence, "by driving through an established [e]xclusion [z]one." As a result, the judge modified the defendant's special conditions of probation and ordered him to submit to global positioning system (GPS) monitoring and not to enter the victim's street.

In November of 2014, when the defendant was nineteen years old, he signed a "Grant of Conditional Liberty Agreement" with DYS. Submitting to GPS tracking and keeping the GPS device charged were among the conditions to which he agreed in order to remain at liberty.

In December of 2014, the defendant was charged with violating his probation for a second time. On this occasion, he was alleged to have committed a new crime by failing to report his employment to the Sex Offender Registry Board. Although he was found in violation of probation, the judge reprobated the defendant without further changing his conditions.

In September of 2015, after an evidentiary hearing, a different judge found the defendant in violation of his probation for a third time. On this occasion, the violation was failing to keep his GPS device charged on four occasions. After a sentencing hearing, the judge imposed the previously suspended State prison sentence portion of the defendant's original combination sentence.

1. Imposing the suspended sentence. The defendant claims that the judge's decision to impose the adult portion of his combination sentence was disproportionate to the crimes he committed as a juvenile and contrary to the rehabilitative purpose of the juvenile justice system so as to be arbitrary, capricious, and an abuse of discretion. We disagree.

"Once a juvenile is treated as a youthful offender, he is no longer given the protections and privileges afforded to delinquent children." Commonwealth v. Clint C., 430 Mass. 219, 223 (1999). See Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 212-213 & n.8 (1997). "A 'delinquent child' is subject to essentially rehabilitative penalties and remedies, while a 'youthful offender' is subject to penalties ranging from placement in a DYS facility to adult sentences in the State prison." Commonwealth v. Connor C., 432 Mass. 635, 645 (2000). In Commonwealth v. Mogelinski, 466 Mass. 627 (2013), the court held that "[a]lthough youthful offenders are proceeded against in Juvenile Court, their treatment may, in other respects, resemble that of adult offenders: their court proceedings are not shielded from public inspection; they are eligible for enhanced penalties, including any adult sentence provided for by law; and they can be confined in an adult house of correction or State prison." Id. at 632. See G. L. c. 119, § 58. See also Commonwealth v. Anderson, 461 Mass. 616, 630 (2012) ("[A]djudication of a juvenile as a youthful offender subjects him to more severe penalties, including State prison sentences").

A judge has discretion to determine whether a violation of probation has occurred, and if a violation is found, has the discretion to determine the appropriate disposition of the matter, which includes revoking the probation and sentencing the defendant. See Commonwealth v. Durling, 407 Mass. 108, 111-112 (1990) ; Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014). However, once a judge exercises her discretion to impose the suspended sentence, "[w]hether it is desirable or not," she is without discretion to alter the terms of the sentence. Commonwealth v. Holmgren, 421 Mass. 224, 228 (1995). See G. L. c. 279, § 3 (if the suspension of a sentence is revoked, "the sentence shall be in full force and effect"). The original sentence was neither unlawful, nor was it disproportionate to the crimes the defendant committed. The judge's decision to impose the State prison portion of the sentence was not a clear error of judgment "such that the decision [fell] outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The defendant also claims the judge did not allow argument at the disposition portion of the final hearing. While counsel requested to be heard on disposition, the judge said she was inclined to order a new aid-in-sentencing report, and asked if anyone objected. There was no objection, and the matter was continued to a new date.

With new counsel at the next date, the defendant's counsel cross-examined the defendant's probation officer, offered testimony from the defendant's mother, and successfully excluded an untimely victim impact statement. Counsel asked to be heard, but, instead, the judge took a recess to review the aid-in-sentencing report. After lunch, the hearing continued. Counsel did not renew his request to be heard. The judge explained that she had reviewed her notes from the hearing, the report, the witness testimony, and the exhibits that were submitted, and she imposed the six to ten year sentence. Counsel did not object.

It would have been preferable for the judge to have permitted argument before imposing the sentence, particularly given the fact that counsel was new and had not been present at the violation hearing. However, "a judge has broad discretion in sentencing and ... '[i]t is not within the power of this court to review an otherwise lawful sentence.' " Commonwealth v. Perez, 477 Mass. 677, 682 (2017), quoting from Commonwealth v. Sanchez, 405 Mass. 369, 379 n.7 (1989). In addition, "[w]e are aware of no authority that says that the failure to grant final argument in a probation revocation hearing is a violation of a probationer's constitutional right to due process of law." Commonwealth v. Marvin, 417 Mass. 291, 294 (1994). See Commonwealth v. Wilcox, 446 Mass. 61, 66 (2006). Given the evidence, reports, exhibits, and testimony considered by the judge, even if there was error, the absence of argument did not create a substantial risk of a miscarriage of justice.

2. The rule 30(a) motion. The defendant also claims that his motion pursuant to Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001), was erroneously denied. More specifically, he claims the automatic imposition of GPS monitoring on him as a youthful offender was illegal. We disagree.

"An 'illegal sentence' is one that is in excess of the punishment prescribed by the relevant statutory provision or in some way contrary to the applicable statute." Commonwealth v. Layne, 21 Mass. App. Ct. 17, 19 (1985). Here, the defendant claims that in light of Commonwealth v. Samuel S., 476 Mass. 497, 509 (2017), the automatic placement of GPS as a probation condition on a youthful offender is unlawful. Without reaching the question of whether Samuel S. is retroactive, this case falls outside the prohibition the court announced in that case.

In this case, unlike Samuel S. or Commonwealth v. Hanson H., 464 Mass. 807 (2013), GPS monitoring was not being automatically imposed under G. L. c. 265, § 47. Instead, the defendant agreed to GPS monitoring as part of his grant of conditional liberty agreement with DYS. See G. L. c. 120, § 6 (a person who has been committed to DYS may be provided liberty "upon such conditions as it believes conducive to law-abiding conduct"). Moreover, the violations that occurred, which led to the revocation of the defendant's probation, all postdated his agreement to wear the GPS device. Samuel S. is simply not apposite.

Order revoking probation and imposing sentence affirmed.

Order denying motion to correct sentence affirmed.

      The offenses were committed almost one year earlier, when the defendant was fifteen years old.

      At the time, the defendant's terms of probation read "16. NO CONTACT: Have no direct or indirect contact with [the victim]." The terms did not include a stay away order from the victim's house or street. However, there was no appeal from the finding of violation.

      The defendant broke into a neighbor's house, masturbated at her bedside while she slept, woke her by touching his penis to her lips, ejaculated on her bedroom floor, stole several items from the house, and fled into the night.

      In making her decision to impose the adult portion of the sentence, the judge considered evidence presented at a probation violation hearing, an aid-in-sentencing report, and evidence presented at the sentencing hearing, which included the defendant's mother's testimony and certificates of achievement. In addition, the judge considered approximately twenty-four exhibits admitted in evidence during two hearings.

      Before the final disposition hearing, the defendant's attorney was permitted to withdraw due to a conflict, and new counsel was appointed for the defendant.

      In addition, the violation was not for a new offense and the suspended sentence was a State prison sentence imposed for a crime committed five years earlier.


text:
    E.S. v. C.S.
    17-P-571
    Appeals Court of Massachusetts.
    January 10, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant (mother) appeals from an abuse prevention order entered against her under G. L. c. 209A (209A order), arguing that the evidence was insufficient to show that she caused or attempted to cause physical harm to the plaintiff (father). The parties were formerly married. On February 5, 2017, after an incident at their daughter's basketball game, the mother applied for a 209A order against the father. One day later, the father applied for a 209A order against the mother based on the same incident, among others. After a hearing the judge allowed both applications and issued mutual 209A orders.

General Laws c. 209A, § 3, as appearing in St. 1990, c. 403, § 3, states that "[a] court may issue a mutual restraining order or mutual no-contact order pursuant to any abuse prevention action only if the court has made specific written findings of fact." The orders here plainly qualify as "mutual." See Sommi v. Ayer, 51 Mass. App. Ct. 207, 209-210 (2001). The judge was therefore required to issue specific written findings, which he did not do. Accordingly, we vacate the 209A order entered against the mother and remand the matter for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded.

      The father did not file a brief on appeal and, as a result, was not heard at oral argument. See Mass.R.A.P. 19(c), 365 Mass. 867 (1974).

      The father did not appeal from the order entered against him.


text:
    COMMONWEALTH v. Jose ORTIZ-DEJESUS.
    17-P-534
    Appeals Court of Massachusetts.
    Entered: January 10, 2018.
    The defendant appeals from an order revoking his probation. He contends that the judge improperly considered unreliable hearsay. We affirm.
    Background. In December, 2014, the defendant was charged with, among other things, driving under the influence of intoxicating liquor (OUI). In February, 2015, the defendant admitted to sufficient facts for a guilty finding on the OUI charge and the case was continued without a finding for two years. In September, 2015, while on probation, the defendant was charged with assault and battery on a family or household member (first assault and battery charge). This case was continued without a finding and the defendant's existing probationary period was extended.
    In November, 2016, the defendant was charged with assault and battery by means of a dangerous weapon and assault and battery on a family or household member (second assault and battery charge), his girl friend, whom we shall call Claudia. At the defendant's surrender hearing, the judge, after listening to the testimony of three witnesses, found that the defendant had violated the terms of his probation. The judge revoked the defendant's continuances without a finding, entered guilty findings, and sentenced the defendant to two years in the house of correction on the OUI charge and eighteen months in the house of correction on the first assault and battery charge, to be served concurrently. The defendant filed a timely notice of appeal. While this appeal was pending, the defendant was tried before a jury and convicted on both counts of the second assault and battery charge, which had served as the underlying basis for the revocation of the defendant's probation.
    Mootness. A probationer who has subsequently been convicted of, or who pleads guilty to, the crimes that formed the basis of his probation revocation, is prohibited from later arguing on appeal that the judge erred in factually determining that the probationer violated his probation. See Commonwealth v. Milot, 462 Mass. 197, 201 (2012). The defendant's claim that the judge based his determination on unreliable hearsay is therefore moot.
    Merits. Even if this issue were not moot, the judge did not abuse his discretion in revoking the defendant's probation. See generally Commonwealth v. Bukin, 467 Mass. 516, 521 (2014). The defendant challenges the reliability of the child's 911 call, and Claudia's statements that were later recanted. Aside from the 911 call, the judge credited Officer Hedderman's testimony that when he arrived at the scene he saw a wall smeared with blood, beer bottle glass strewn across the floor, and Claudia "screaming hysterically, crying, [and] holding her head, [with] blood all over[.]" She told the officer that the defendant hit her over the head with a beer bottle and bit her finger.
    The judge acted within his discretion when he chose to credit the officer's report and discredit the subsequent recantation. See Commonwealth v. Patton, 458 Mass. 119, 131 (2010) ("It was a matter for the judge to decide how much weight to give the evidence of recantation"). We reject the defendant's argument that the judge failed to give sufficient reasons why he credited the officer's testimony over the recantation. The judge gave reasons on the record at the hearing, and issued a written order stating, "I do not credit the testimony of [Claudia,] which I find was self-serving to protect the defendant from legal trouble and incarceration." This statement was plainly sufficient. See id. at 136 ("[T]he judge satisfied the requirement under rule 6[b] [of the District Court Rules for Probation Violation Proceedings (2015) ] for written findings ... by creating a composite that consisted of the dictation into the record of her findings on the question of trustworthiness and reliability of the hearsay evidence, the transcription of those findings, and her notes on the probation violation finding and disposition form").
    Order revoking probation and imposing sentence affirmed.

      The defendant maintains that the officer's testimony regarding the child's 911 call was unreliable hearsay, and that Commonwealth v. Joubert, 38 Mass. App. Ct. 943, 945 (1995), bars consideration of the call. In Joubert, there was no corroboration of hearsay testimony at the surrender hearing concerning a child's statement. Here, however, the judge explicitly relied on the firsthand observations of the officer who arrived at the scene, saw the girl friend covered in blood, and heard her account of what happened, which mirrored what the child said in the 911 call. The corroboration missing in Joubert is present here. That said, the judge's ruling may be upheld here even in the absence of the 911 call.


text:
    COMMONWEALTH v. Johnson M. WACHIRA.
    17-P-892
    Appeals Court of Massachusetts.
    Entered: January 10, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant, Johnson Wachira, of operating a motor vehicle on a public way while under the influence of alcohol, G. L. c. 90, § 24(1)(a )(1). The defendant appeals, asserting that there was insufficient evidence to establish that he drove while intoxicated and that a question asked by the prosecutor, which forecast the defendant's failed performance on roadside sobriety tests, created a substantial risk of a miscarriage of justice. We affirm.

1. Sufficiency of the evidence. "In reviewing the denial of a required finding of not guilty, we review the evidence introduced up to the time the Commonwealth rested its case to determine whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient for a reasonable jury to infer the existence of each essential element of the crime charged, beyond a reasonable doubt." Commonwealth v. Rivera, 460 Mass. 139, 141 (2011). See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The charge here required the Commonwealth to prove "that the defendant (1) physically operated a vehicle; (2) 'on a public way or place to which the public has a right of access; and (3) ... was impaired by the influence of intoxicating liquor.' " Commonwealth v. AdonSoto, 475 Mass. 497, 509 (2016), quoting from Commonwealth v. Zeininger, 459 Mass. 775, 778, cert. denied, 565 U.S. 967 (2011).

The State trooper's testimony that the defendant drove his automobile on Route 24, a public road maintained by the State Department of Transportation, satisfied the first two of the three elements. See G. L. c. 90, § 1 (definition of "way" includes "any public highway"), and Commonwealth v. Hazelton, 11 Mass. App. Ct. 899, 900 (1980) (evidence that a road is publicly maintained is evidence that it is a public way under G. L. c. 90, § 24 [1][a ] [1] ). The Commonwealth's proof of the third element is equally clear. The trooper also testified that the defendant exhibited classic signs of intoxication and a diminished capacity to operate safely. Specifically, the trooper stated that the defendant was belligerent, smelled strongly of alcohol, drove erratically, and had poor balance and bloodshot eyes. See Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011) ("belligerent demeanor, strong odor of alcohol, poor balance, and glassy, bloodshot eyes" are signs of intoxication). The defendant also admitted to consuming wine and vodka before driving. On the basis of this evidence, we are satisfied that a jury could reasonably conclude that alcohol diminished the defendant's ability to drive safely. Commonwealth v. AdonSoto, 475 Mass. at 509. We discern no error.

2. The prosecutor's question. Before any evidence had been introduced regarding the defendant's performance on the field sobriety tests, the prosecutor asked the trooper if he had "ask[ed] [the defendant] any more questions before he proceeded to fail the sobriety test?"

The defendant contends that the question resulted in an impermissible comment on the defendant's guilt, and therefore, in the absence of an objection, it created a substantial risk of a miscarriage of justice. See Commonwealth v. Brown, 451 Mass. 200, 209 (2008). We disagree.

First, the question (which prematurely assumed facts not in evidence, see Commonwealth v. McHugh, 17 Mass. App. Ct. 1015, 1016 [1984] ), was only one of many other properly formed questions. See Commonwealth v. Johnson, 412 Mass. 318, 328 (1992) (collecting cases in which improper questions did not require reversal). Second, ample evidence of the defendant's poor performance on the field sobriety tests quickly followed the prosecutor's question. Third, the judge properly instructed the jury that an attorney's "question to a witness is never evidence, only the answer" is evidence. Jurors are presumed to follow these instructions. Commonwealth v. Degro, 432 Mass. 319, 328 (2000). Accordingly, under these circumstances, we cannot say that the prosecutor's single, inartfully framed question created a substantial risk of a miscarriage of justice.

Judgment affirmed.

      The judge found the defendant responsible for a marked lanes violation, but placed the finding on file.