text:
    ADOPTION OF LEROY.
    16-P-1340
    Appeals Court of Massachusetts.
    Entered: January 18, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   The father appeals from a Juvenile Court decree terminating his parental rights under G. L. c. 119, § 26, placing the child in the care of the Department of Children and Families (department), and approving the department's adoption plan. He argues that the department failed to use reasonable efforts to reunify him and the child, that the judge's finding of parental unfitness was clearly erroneous, and that the judge took an overly active role in the proceedings, thereby denying the father a fair trial. We affirm.

Background. On April 5, 2013, the department responded to a report filed by a hospital worker, pursuant to G. L. c. 119, § 51A, alleging neglect of newborn Leroy by both the mother and father. The mother had a significant substance abuse history, but the mother and father would not allow Leroy to undergo toxicology testing, and they sought to leave the hospital with Leroy against medical advice. The department's subsequent investigative report under G. L. c. 119, § 51B, found that Leroy had tested positive for cocaine and oxycodone, was showing signs of withdrawal, and was being administered morphine by medical personnel, and that the mother's other medical history placed Leroy "at significant risk of further neglect if he failed to receive medical care in a timely manner."

The department assumed emergency custody of Leroy and on April 8, 2013, filed a care and protection petition pursuant to G. L. c. 119, § 23(a )(3), following which the department was granted temporary custody. Upon his release from the hospital, Leroy was placed with a foster family, who later became the preadoptive family. By May 9, 2013, the department had developed service plans for each parent, with a goal of family reunification. The father's service plan contained seventeen tasks with a stated "outcome" of "recovery from alcohol/drug abuse/misuse" in order to "ensure that children [sic ] are not exposed to individuals under the influence of drugs."

The judge found that the father "has not engaged in consistent services" offered by the department. In February, 2014, a department psychologist evaluated the father; based on that evaluation, the judge found the father "suffers from Personality Disorder with Narcissistic Features. His problems are not quickly or easily changed. The first step toward such change is admitting to having problems and Father appeared, at that time ... to be nowhere near taking even that first step." These problems included the father's continuing alcohol and substance abuse, mental health issues for which the father refused to engage in consistent treatment, and domestic violence against the mother.

On February 12, 2014, the department held a permanency planning conference and changed the goal for Leroy to adoption. After a trial in December, 2015, and January, 2016, the judge found Leroy in need of care and protection and terminated the parental rights of the father. The father appealed.

Discussion. 1. Reasonable efforts. The father argues that the department violated, in three respects, the requirement that, "[b]efore seeking to terminate parental rights, [it] must make 'reasonable efforts' aimed at restoring the child to the care of the natural parents." Adoption of Ilona, 459 Mass. 53, 60 (2011) (quotation omitted). See G. L. c. 119, § 1. We disagree.

First, the father claims that the department failed to offer him services until his paternity of Leroy was confirmed. He cites no evidence to support this claim. To the contrary, the record shows that the department had a seventeen-part service plan in place for the father within one month after Leroy's birth; supervised visitation occurred, with the department providing support to both parents during the visits, even before paternity was established.

Second, we do not agree that the department's immediate placement of Leroy into a "preadoptive" home indicates a lack of reasonable efforts. The department's goal at that time was family reunification. It was changed to adoption only after nine months had elapsed and a foster care review had concluded, among other things, that the father "had not followed through with recommended evaluations and classes" and "continues to ... minimize [the mother's] substance abuse history." Moreover, judges (other than the trial judge) determined that the department had made reasonable efforts before first taking custody of Leroy, and before changing its permanency plan from reunification to adoption. The father did not object to such determinations at the time, as he could have. See Care & Protection of Walt, 478 Mass. 212, 218 (2017).

Third, we reject the father's argument that the department failed to make reasonable efforts to investigate his brother in New York as a possible foster parent. The brother was not identified as such until December, 2014, nine months after the goal for Leroy had been changed to adoption. The department nevertheless took steps to consider the brother, but soon encountered problems. Leroy could not go to New York without first establishing eligibility for health insurance there, and the father had not provided sufficient financial information to establish that eligibility. Although we agree with the father that there was conflicting testimony from various department social workers regarding exactly how much information the father had provided, the father himself testified that "[t]he problem with that going through was [the department] didn't have an updated financial form ... from me." We therefore see no clear error in the judge's findings (413 and 414) that the father's failure to provide the necessary information essentially precluded further consideration of the father's brother as a potential placement. Compare Adoption of Daisy, 77 Mass. App. Ct. 768, 782 (2010), S.C., 460 Mass. 72 (2011) (department's reasonable-efforts obligation is contingent upon parent's obligation to fulfill various parental responsibilities).

Finally, even if (unlike here) the department had failed to make reasonable efforts, that would "not preclude the court from making any appropriate order conducive to the child's best interest." Adoption of Ilona, 459 Mass. at 61, quoting from G. L. c. 119, § 29C. See Care & Protection of Walt, 478 Mass. at 228.

2. Fitness. It was the department's burden to prove by clear and convincing evidence that the father was currently unfit to parent and that Leroy's best interests would be served by dispensing with the father's consent to adoption. See Adoption of Gregory, 434 Mass. 117, 125-126 (2001). The father challenges numerous findings of fact and several of the judge's conclusions as to fitness. After carefully reviewing these challenges, we see no basis to disturb the decision.

a. Findings of fact. The judge made extensive and detailed subsidiary findings, based on a preponderance of the evidence, which we review for clear error. Adoption of Helen, 429 Mass. 856, 859 (1999). "It [was] within the judge's discretion to evaluate the credibility of witnesses and to make his findings of fact accordingly.... He was not obligated to believe the [father's] testimony or that of any other witness." Care & Protection of Three Minors, 392 Mass. 704, 711 (1984). A number of the father's challenges target findings that depend on credibility determinations, particularly as to his denial of his alcohol and substance abuse problem or other parenting deficiencies. We cannot say that any of those findings are clearly erroneous.

In other instances, the father simply mischaracterizes the findings. These include findings concerning: Leroy's addiction to drugs at birth, the father's operation of a "shelter" in a separate location that nevertheless brought people and incidents into the home where the father proposed to live with Leroy, the father's cocaine use and criminal history, Leroy's expressions of feelings toward the father and the preadoptive mother, and the father's diagnosis of a personality disorder that included narcissistic features.

Finally, while not challenging the substance of finding 194 that he had missed twenty percent of his supervised visits, the father challenges the judge's conclusion that this failure to visit was "willful." The father ignores the judge's separate finding 184, stating that "on four occasions, [the mother] called to cancel her visit ... and then [five] minutes later, Father would call to cancel his visit[,] offering a different excuse." The judge could permissibly characterize the failure to attend scheduled visits as wilful.

b. Conclusions of law. The judge determined the father to be unfit based on the factors set forth in G. L. c. 210, § 3(c )(ii), (iii), (v), (vi), (vii), (viii), (x), and (xii). Of these eight, the father challenges only four. We consider the challenges and find them unpersuasive.

i. Factor (iii). The judge concluded that this factor applied because the father had "cancelled multiple visits with the child" and had not "actively or consistently engaged in services recommended or provided by the [d]epartment intended to remedy [his] parenting deficiencies." The father's argument on this factor is limited to the claim that it cannot apply because he attended eighty percent of scheduled visits and there was testimony from one social worker that visits typically went "very well."

The finding of a wilful failure to visit has already been discussed supra. As to the quality of the visits, the judge made unchallenged findings that the father sometimes became angry during visits and glared at Leroy when they ended, that he had arrived at one visit smelling of alcohol, that visits generated anxiety for Leroy, that Leroy acted out destructively after visits and required hours of one-on-one time with the preadoptive mother before calming down, and that yet, the father denied any changes in Leroy's behavior at visits. The judge took all this as evidence of the lack of a bond between the father and Leroy, the father's lack of insight into Leroy's needs, the father's anger management problem, and his poor parenting abilities. We see no error in the conclusion that factor (iii) weighed in favor of termination.

ii. Factor (v). The judge concluded that this factor applied because Leroy had been in the department's custody since birth and the father had "been consistently offered services to remedy [his] parenting deficiencies and [has] refused to meaningfully engage with any of those services throughout the pendency of this case." Although the father points out that he had complied with some of the more routine tasks on his service plan, a department social worker testified that he had not complied (or not consistently complied) with many of the tasks, including obtaining substance abuse counseling, refraining from associating with substance abusers, refraining from using illegal substances, maintaining a safe and substance-free home, and engaging in individual counseling. The judge found that the father had failed to complete these tasks.

Of particular concern were the father's failure to acknowledge his substance abuse, anger management, and narcissistic behavior problems, failure to consistently engage in counseling to deal with those problems, failure to stop his own substance and alcohol abuse, failure to maintain his home free of illegal substances and substance abusers, and inability to place Leroy's needs and best interests ahead of his own. Although the judge overstated matters in concluding that the father had failed to meaningfully engage with "any" of the services offered or recommended by the department, there was ample support for his conclusion insofar as it related to those services most important to remedying the father's parenting deficiencies. In short, there was no error in his conclusion that factor (v) weighed in favor of termination.

iv. Factor (vii). The judge concluded that this factor applied because Leroy had been in the preadoptive home since shortly after his birth; was "significantly bonded to both [preadoptive parents and] to his foster siblings"; and "[h]is forced removal from [the preadoptive] home would likely cause him substantial psychological harm." The father challenges this conclusion by pointing to a bonding expert's testimony that Leroy "possibly" could cope with a move to, and form a bond with, the father, and that the father "possibly" could learn the parenting skills necessary to deal with the attachment disorder Leroy was at risk of developing were he to be removed from the preadoptive home. The problem with the father's argument is that the judge made numerous findings, unchallenged by the father, about the high risk of psychological harm to Leroy and the unlikelihood of his forming a secure bond with a father so deficient in the necessary parenting skills. The judge did not err in concluding that factor (vii) weighed in favor of termination.

iv. Factor (x). The judge concluded that this factor applied because the father had "cancelled visits with the child for insufficient reason." We have already rejected, supra, the father's challenge to the factual finding of a wilful failure to visit, and thus we see no error in the judge's conclusion regarding factor (x).

3. Denial of fair trial. The father asserts that the judge took an overly active role in the proceedings, asking numerous and assertedly result-oriented questions of various witnesses, thereby denying the father a fair trial. Although we reject this claim, the extent of the judge's participation still warrants comment.

No doubt a judge may ask questions of witnesses. Here the judge informed all counsel at the start of the trial that he expected to engage in such questioning; that he did not intend to interfere with counsel's opportunity to present their own cases; that if they found any of his questioning objectionable, they should object; and that there would be no consequences for doing so. Such a statement, while helpful, still leaves counsel in a difficult position. It is not a substitute for exercising restraint and sensitivity in asking witnesses questions only when necessary to clarify the judge's understanding of the evidence. Here, at times, the judge's interventions may have been more overbearing than necessary.

Overall, however, the father conceded at oral argument that the judge did not prevent him from presenting any evidence. The father's claim that the judge improperly elicited child hearsay fails, because the testimony in question was not hearsay. See note 10, supra. The father's claim that the judge sought to develop evidence of unfitness also misses the mark. So does his claim that the judge sought to "refute" testimony elicited by the father's counsel about the risk of Leroy developing an attachment disorder if removed from the preadoptive home. We need not discuss here each and every additional challenge the father raises to the judge's questions. We have reviewed them all and are satisfied that the questioning did not deprive the father of a fair trial.

Conclusion. The judge did not err in concluding, after a fair trial, that clear and convincing evidence established the father's unfitness and that Leroy's best interests would be served by dispensing with the need for the father's consent to Leroy's adoption.

Decree affirmed.

      The judge also terminated the mother's parental rights; she did not appeal.

      "There is no specified period of time the department must afford a parent to comply with a service plan before changing the goal to adoption." Adoption of Elena, 446 Mass. 24, 32 n.5 (2006).

      Although the brother had told the department he would be moving to Massachusetts, which would have eliminated the health insurance issue as a barrier to his role as a potential placement for Leroy, the department never heard further from the brother about this plan, and at the time of trial the department believed he was still in New York. The father then testified that the brother had actually moved to Massachusetts about two months before trial. The judge made no finding on whether it was the department's responsibility to track the brother's whereabouts or, conversely, the brother's (or the father's) responsibility to inform the department once the brother had moved to Massachusetts.

      These include findings 48 (the father's childhood, including exposure to substance abuse); findings 115 and 197 (the father's denial of his domestic violence and substance abuse problems); findings 81 and 82 (the father's denial of any past history with the department; although a prior complaint of abuse against the father was found false, the father's denial of any knowledge of it was not credible). Also, findings 411 and 412, stating that the father lacks insight into the risk of serious adverse effects of breaking Leroy's bond with the preadoptive parents, and into what would be required of the father to deal with such effects, accurately characterize the father's testimony. Those findings reflect that the judge chose to credit instead the testimony of social worker Noel, Dr. Fornberg, and Dr. Kline in findings 387 through 410.

      Contrary to the father's argument, findings 124 and 199 do not unfairly fault him for initially denying that Leroy was born addicted. Relatedly, finding 118, dealing with events at the hospital after Leroy's birth, is not, as the father claims, "partially erroneous by omission" in its failure to mention the father's version of a conversation with a physician. Even if the judge credited the father, which he repeatedly declined to do, finding 118 correctly states that the hospital would not allow the father and mother to leave with Leroy, and the father does not contend otherwise.

      Contrary to the father's argument, finding 205 does not state that the father allowed prostitutes to stay at his home, merely that he allowed substance abusers and prostitutes into his home, and that there were related police responses to the home. The father does not question the accuracy of these findings or their relevance to the suitability of the home as a place for Leroy to live. Essentially the same is true of findings 227 and 229. We also find no merit in the father's challenge to finding 235, regarding the unsuitability of the shelter as a place for Leroy to live. That the father never proposed the shelter as a home for Leroy neither makes the finding clearly erroneous nor detracts from its relevance as a part of the judge's appropriately comprehensive consideration of the father's current circumstances.

      Findings 66 and 306 do not state that the father intentionally smoked marijuana laced with cocaine. Rather, the father admitted that he smoked marijuana, initially denied having previously attributed a positive cocaine screen to unwittingly smoking cocaine-laced marijuana, and then later admitted having offered that explanation for the positive screen. Finding 306 permissibly finds his initial denial false. Notably, the father does not challenge finding 309, which states that his claim to have unwittingly ingested the cocaine was not only false but representative of his pattern of denying his substance abuse problem.

      Finding 67, stating that the father has a criminal history, is supported by the father's CARI record extending back to 1997. The judge nowhere suggests that the father had been convicted of a crime, as the father intimates.

      Contrary to the father's argument, findings 355 and 384 do not accept the preadoptive mother's recounting of certain statements by Leroy for their truth (nor did the father object on hearsay or other grounds at trial). Rather, those findings concern Leroy's state of mind: specifically, his anxiety about visits with the father, and his closeness with the preadoptive mother. See Mass. G. Evid. § 803(3)(B)(i) (2017). Nor is finding 384 erroneous by reason of failing to note that the preadoptive mother had asked Leroy to call her "mommy." The transcript and findings demonstrate that the judge was alert to issues of "coaching," and there was ample other evidence of Leroy's bond with the preadoptive mother, as shown by unchallenged findings 387, 388, and 392.

      Finding 408, crediting Dr. Kline's diagnosis of the father, is not erroneous by reason of Dr. Kline's having referred in her report to the father's "reported history." Contrary to the father's claim, nothing in the report even hints that Dr. Kline was referring to the father's past history with the department, discussed in findings 81 and 82. See note 5, supra.

      The father errs in asserting that the judge found a valid reason for the missed visits-specifically, the father's need to attend the trial of a brother's alleged murderer. The judge found that this was the reason the father missed a foster care review meeting, not a visit.

      This factor considers whether:
      "a court of competent jurisdiction has transferred custody of the child from the child's parents to the department, the placement has lasted for at least six months and the parents have not maintained significant and meaningful contact with the child during the previous six months nor have they, on a regular and consistent basis, accepted or productively utilized services intended to correct the circumstances."
      G. L. c. 210, § 3(c )(iii).

      The father also disputes, albeit only in the context of factor (v), see infra, the judge's conclusion that he had failed to engage in services to remedy his parenting deficiencies.

      This factor considers whether:
      "the child is younger than four years of age, a court of competent jurisdiction has transferred custody of the child from the child's parents to the department and custody has remained with the department for at least 6 of the immediately preceding 12 months and the child cannot be returned to the custody of the parents at the end of such 12-month period; provided, however, that the parents were offered or received services intended to correct the circumstances and refused or were unable to utilize such services on a regular and consistent basis."
      G. L. c. 210, § 3(c )(v).

      These included maintaining regular contact with the department, signing releases for his treatment providers to furnish information to the department, attending a father's group, taking prescription medication only as prescribed, providing the department with kinship resource information, attending court dates and foster care reviews, and providing verification of income. A department social worker confirmed his compliance with these tasks.

      This factor considers whether:
      "because of the lengthy absence of the parent or the parent's inability to meet the needs of the child, the child has formed a strong, positive bond with his substitute caretaker, the bond has existed for a substantial portion of the child's life, the forced removal of the child from the caretaker would likely cause serious psychological harm to the child and the parent lacks the capacity to meet the special needs of the child upon removal."
      G. L. c. 210, § 3(c )(vii).

      This factor considers "the willful failure to visit the child where the child is not in the custody of the parent ...." G. L. c. 210, § 3(c )(x).

      This court has previously stated:
      "Our cases permit a judge, who in these types of cases is the fact finder, to question witnesses in order to obtain clarification or eliminate confusion. 'In exercising their duty to direct and clarify the evidence, judges may not, however, weigh in, or appear to do so, on one side or the other; the judge must avoid the appearance of partisanship.... The rule is one of reason.' "
      Adoption of Norbert, 83 Mass. App. Ct. 542, 547 (2013), quoting from Commonwealth v. Hassey, 40 Mass. App. Ct. 806, 810 (1996).

      It was unnecessary for the judge, in overruling the mother's objection to the department's question about the father's substance abuse, to suggest that the mother's counsel was "cross[ing] an ethical line and represent[ing] another party, [and] I might as well have [the father's counsel] leave." The judge's initial decision to overrule the objection on substantive grounds was sufficient. Continuing on to suggest that an evidentiary objection constituted an ethical violation needlessly risked chilling counsel's advocacy.

      In the principal instance cited by the father, a department social worker had already testified at some length that the department wanted the father to deal with his anger management issues. When trial resumed five days later and the social worker omitted that from her summary of the department's current concerns, it was not improper for the judge to ask questions to clarify whether anger management remained an issue. The father also complains that the judge improperly directed Leroy's counsel's examination of a department social worker on the subject of the father's controlling behavior. The judge's questions, aimed at understanding what the social worker meant and why she did not attribute the desire to control to the mother rather than the father, were not inappropriate in the circumstances.

      The judge's questions were appropriately aimed at understanding the difference between a DSM-V diagnosis of a disorder and the behaviors involved in that disorder.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Paul A. NOWICKI.
    16-P-984
    Appeals Court of Massachusetts.
    Entered: January 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Paul A. Nowicki, appeals from his conviction after a bench trial of larceny from the person of a victim sixty-five years or older, G. L. c. 266, § 25(a ). Concluding that the Commonwealth presented sufficient evidence to prove the defendant's guilt beyond a reasonable doubt, we affirm.

When reviewing the denial of a motion for a required finding of not guilty, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable.' " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707, 713 (2014).

"To establish larceny from a person requires that the Commonwealth prove, beyond a reasonable doubt, that (i) the defendant took property; (ii) the property was owned or possessed by another; (iii) the defendant took the property from the person of the possessor or from the possessor's area of control; and (iv) the defendant did so with the intent to deprive the possessor of the property permanently." Commonwealth v. Cartright, 478 Mass. 273, 283-284 (2017). Here, the Commonwealth also had to prove that the possessor was sixty-five years old or older. See G. L. c. 266, § 25(a ) ; Commonwealth v. Montalvo, 50 Mass. App. Ct. 85, 88 (2000).

While the victim was enjoying a meal of chicken wings with bleu cheese dressing at a local bar, the defendant went over to him and placed his arm around him, "getting very close to him." The defendant "very hurriedly left the bar," abandoning most of an expensive drink. When the victim finished his meal, he could not find his wallet, which had been in his left jacket pocket.

The next morning, the defendant appeared at the victim's home and gave the victim back his wallet. Forty-two dollars were missing. See Commonwealth v. Semedo, 456 Mass. 1, 10 (2010) (defendant's possession of robbery proceeds contributed to sufficiency). The defendant presented two different stories to the victim. At first, he said, "Somebody totally set me up with your wallet, they put it into my ... coat." See Commonwealth v. Foster, 471 Mass. 236, 246 (2015) (defendant's "far-fetched story" contributed to sufficiency). When the victim expressed the opinion that this story was "kinda odd," the defendant said, "Your wallet and my wallet are similar and [y]our wallet was on a bar and I took your wallet, I thought it was mine." The victim, however, had not placed his wallet on the bar. See Commonwealth v. Burke, 414 Mass. 252, 261 (1993) (defendant's "conflicting stories" in conjunction with evidence of flight showed consciousness of guilt).

"Pickpocketing characteristically involves stealth and a lack of awareness of the taking by the victim." Commonwealth v. Davis, 7 Mass. App. Ct. 9, 11 (1979). Here, the defendant was the only person with the opportunity to steal the victim's wallet at the time it went missing, and he had possession of the wallet the next day with conflicting explanations that the trier of fact could find were inventions. From the defendant's removal of forty-two dollars, the trier of fact could reasonably infer that the defendant intended, at the time he took the wallet, to permanently deprive the victim of at least some of the contents of that wallet. Accordingly, the judge properly found sufficient evidence to convict the defendant.

Judgment affirmed.

      The defendant does not contest that the Commonwealth had proven that the victim was eighty-three years old at the time of the incident.

      For purposes of this appeal, we place no weight on the officer's testimony that the defendant's actions on the surveillance video were "consistent with" pickpocketing, nor do we discern any indication that the trial judge was unduly influenced by that testimony. The judge specifically stated that he had reviewed the video himself, and we presume that a judge in a bench trial instructs himself correctly on the proper evaluation of evidence. See Commonwealth v. Sepheus, 468 Mass. 160, 170 (2014). The bar manager's opinion that the video depicted pickpocketing, by contrast, was elicited by the defendant and could be considered for whatever weight it held.

      Although the evidence reflects that the defendant was a suspect by this point, the Commonwealth presented no evidence that the defendant knew he was a suspect before he returned the wallet.


text:
    COMMONWEALTH v. Arthur W. CRAIG.
    16-P-1644
    Appeals Court of Massachusetts.
    Entered: January 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Arthur W. Craig, appeals from his conviction, after a bench trial, of operating under the influence of intoxicating liquor, third offense, G. L. c. 90, § 24(1)(a )(1). He also appeals from an order denying a postconviction motion to dismiss that is based on a claim of lost or destroyed evidence. Concluding that the District Court judge acted within his discretion in denying the defendant's motion to dismiss and concluding that the evidence was sufficient to support the conviction, we affirm.

1. Lost or destroyed evidence. We review the motion judge's denial of the defendant's motion to dismiss based on lost or destroyed evidence for an abuse of discretion. Commonwealth v. Kee, 449 Mass. 550, 554 (2007). The defendant "bear[s] the initial burden of demonstrating the exculpatory nature of that evidence." Commonwealth v. Williams, 455 Mass. 706, 718 (2010). Specifically, the defendant must "establish a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [evidence] would have produced evidence favorable to his cause." Kee, supra, quoting from Commonwealth v. Dinkins, 440 Mass. 715, 717 (2004) (internal quotation marks omitted).

Here, the defendant presented no evidence that the booking videotape (video) would have been exculpatory. The defendant presented no affidavit concerning what occurred at booking, instead relying on defense counsel's opinion that "the booking video in an OUI prosecution is a very important piece of evidence as it usually 'makes or breaks' the case when the fact finder can observe the defendant with his own eyes." At the evidentiary hearing, the defendant again eschewed presenting any evidence concerning what occurred at booking. Instead, the defendant relied on argument that a booking video allows one to "see whether he was steady on his feet, whether his eyes appeared glassy." In short, the defendant presented nothing other than what the booking video could have shown. "A claim that the evidence 'could have' exonerated him is speculative at best." Kee, 449 Mass. at 555.

The lack of a basis for the defendant's motion is highlighted by comparing it to the basis in Commonwealth v. Heath, 89 Mass. App. Ct. 328 (2016). There, the defendant presented his own affidavit attesting that an officer assaulted him, he did not assault the officer, and a video of the event would demonstrate these facts. Id. at 335. Here, the defendant's showing falls short of that in Heath.

2. Sufficiency of the evidence. When reviewing the denial of a motion for a required finding of not guilty, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable.' " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707, 713 (2014).

Here, "the Commonwealth was required to prove that the defendant (1) operated a motor vehicle, (2) on a public way, (3) while under the influence of alcohol." Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017). To prove the third element, the Commonwealth "must prove a diminished capacity to operate safely." Commonwealth v. Morse, 468 Mass. 360, 377 (2014), quoting from Commonwealth v. Daniel, 464 Mass. 746, 756 (2013). Here, only the third element is contested.

The defendant's speech was slurred, his eyes were bloodshot, and his breath smelled of alcohol. He admitted to having "a few drinks." He was unable to recite the entire alphabet. He was unsteady on his feet, unable to walk in a straight line, and could not follow instructions. In the opinion of both the arresting officer and the booking officer, he was intoxicated. These "classic symptoms of alcohol intoxication" provided enough evidence for the judge to find the defendant guilty beyond a reasonable doubt. Gallagher, 91 Mass. App. Ct. at 392.

Judgment affirmed.

Order entered June 22, 2016, denying postconviction motion, affirmed.

      The stay of execution of sentence is vacated. Mass.R.A.P. 6(b)(5), as appearing in 454 Mass. 1601 (2009).

      The defendant invites us to consider defense counsel's posttrial affidavit. This was not before the original motion judge and it suffers from the same speculative nature as the rest of the defendant's submission.


text:
    COMMONWEALTH v. Paul F. ALMEIDA.
    16-P-1676
    Appeals Court of Massachusetts.
    Entered: January 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Paul F. Almeida, appeals after his conviction of reckless operation of a motor vehicle, G. L. c. 90, § 24(2)(a ). Concluding that the evidence was sufficient and that there was no error in the jury instructions in this domestic violence-related case, we affirm.

1. Sufficiency. When reviewing the denial of a motion for a required finding of not guilty, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable.' " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707, 713 (2014). To obtain a conviction of reckless operation of a motor vehicle pursuant to G. L. c. 90, § 24(2)(a ), the Commonwealth must prove that the defendant (1) operated a motor vehicle (2) upon a public way (3) recklessly so that the lives or safety of the public might be endangered. See Commonwealth v. Jewett, 471 Mass. 624, 630 (2015) ; Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 921 (2004).

Here, the evidence established that the defendant drove a motor vehicle in pursuit of another motor vehicle, driven by his girl friend, for nine to fifteen minutes through the streets of Taunton. During this time, he was "all over the road." At one point, the defendant pulled into the wrong side of the road and attempted to swerve into his girl friend's motor vehicle. At another point, the defendant's car "slam[med] into the back of her car." Later, he pulled it front of the girl friend's motor vehicle and then "jam[med] on his brakes," causing the girl friend's motor vehicle to collide with the defendant's motor vehicle. This evidence was sufficient to demonstrate reckless operation. See Commonwealth v. Guaman, 90 Mass. App. Ct. 36, 41 (2016) (continuing to drive after hitting motorcycle). Cf. Commonwealth v. Charland, 338 Mass. 742, 743-744 (1959) (head-on collision after defendant was traveling wrong way on rotary traffic circle constituted negligent operation). We must decline the defendant's invitation to find that the civilian witnesses for the Commonwealth "lacked credibility," as "questions of credibility belong properly to the finder of fact, and, in considering whether the evidence is sufficient to support a conviction, should be resolved in favor of the Commonwealth." Commonwealth v. Martin, 467 Mass. 291, 315 (2014) (citations omitted).

2. Bowden instruction. " 'Bowden's only requirement' is that 'the judge ... not remove the inadequacy of the police investigation from consideration by the jury.' " Commonwealth v. Avila, 454 Mass. 744, 767 (2009), quoting from Commonwealth v. Williams, 439 Mass. 678, 687 (2003). Accordingly, "a judge is not required to instruct on the claimed inadequacy of a police investigation." Commonwealth v. Doyle, 83 Mass. App. Ct. 384, 392 (2013), quoting from Commonwealth v. Boateng, 438 Mass. 498, 507 (2003). Accordingly, the trial judge acted within her discretion in declining to give a Bowden instruction.

Judgment affirmed.

      See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980).


text:
    COMMONWEALTH v. Rameses CANELUS (and nine companion cases  ).
    16-P-1305
    Appeals Court of Massachusetts.
    Entered: January 12, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Four companion cases are against Rameses Canelus and five are against Daqwan Collins.

   After an evidentiary hearing, a judge of the Middlesex Superior Court allowed motions to suppress evidence filed by the defendants Rameses Canelus and Daqwan Collins. The motion judge found that Cambridge police officers lacked reasonable suspicion to believe Canelus was armed and dangerous at the time police stopped and searched him, and ordered the suppression of a firearm found during the search of a backpack carried by Canelus as well as other evidence and statements obtained from both defendants. After receiving permission from a single justice of the Supreme Judicial Court, the Commonwealth brings this interlocutory appeal challenging the judge's order. We affirm.

Discussion. 1. Motion to suppress. "In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given ... testimony presented at the motion hearing." Commonwealth v. Meneus, 476 Mass. 231, 234 (2017), quoting from Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). "A finding is clearly erroneous if it is not supported by the evidence, or when the reviewing court, on the entire evidence, is left with the firm conviction that a mistake has been committed." Commonwealth v. Hilton, 450 Mass. 173, 178 (2007). Absent clear error, however, we "independently determine the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007), quoting from Commonwealth v. Cantanzaro, 441 Mass. 46, 50 (2004).

The Commonwealth's various claims of error each rely on the argument that the motion judge erroneously found that police lacked reasonable suspicion to believe Canelus was armed and dangerous at the time he was stopped and searched. The Commonwealth asserts that the observations of Cambridge police Detective Mark Clavette gave rise to the inference that Collins possessed a firearm that he later transferred to Canelus.

The motion judge issued comprehensive and detailed findings following an evidentiary hearing. The Commonwealth challenges as clearly erroneous the motion judge's factual findings regarding the particular movement of Collins's hand as Collins rode a bicycle, as observed by Detective Clavette. These movements formed the basis of Clavette's suspicion that Collins, and later Canelus, was armed with a firearm. Specifically, the Commonwealth challenges the motion judge's finding that Detective Clavette observed Collins's left hand, which remained near the top of his left thigh or waistband, to rise each time that his left thigh moved upward while pedaling, and to fall each time that his left thigh pedaled down, seeming to push down "every time ... the left pedal descended from its highest point." The Commonwealth urges instead that the detective's testimony was essentially the opposite: that Collins's hand pushed down as his leg rose, and not as it fell.

A review of the record suggests that the testimony was subject to either interpretation. Even were this particular finding devoid of support in the record, however, we would simply "eliminate [the finding] from our analysis." Commonwealth v. Cawthron, 90 Mass. App. Ct. 828, 835 (2017).See Commonwealth v.Wedderburn, 36 Mass. App. Ct. 558, 558-559 (1994) (deleting finding which was without support in record).

"Appellate courts may supplement a judge's finding of facts if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness's testimony." Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). This is not such a case. The motion judge heavily discounted many portions of Detective Clavette's testimony, and explicitly did not credit Clavette's statement that Collins was "pushing down on some object in his waistband as he was pedaling," or that Clavette saw anything that would give rise to a reasonable suspicion that Collins was concealing a firearm as he rode the bicycle, finding that Collins's movements were natural. "The Commonwealth essentially asks us to do what our case law proscribes: to rely on testimony that was neither explicitly nor implicitly credited by the motion judge, otherwise put, that we in essence make additional findings, and reach a different result, based on our own view of the evidence.... This we cannot do." Commonwealth v. Jones-Pannell, 472 Mass. 429, 432 (2015).

Reasonable suspicion that Canelus was armed and dangerous was required to perform a frisk of his person and likewise the backpack he held. See Commonwealth v. Narcisse, 457 Mass. 1, 5 (2010). Based on the facts as found by the motion judge, Clavette lacked such reasonable suspicion. The judge accordingly properly allowed the defendants' motions to suppress the fruits of the illegal search of Canelus.

2. Standing. The Commonwealth argues that the motion judge erred in finding that Collins had standing to challenge the search of the backpack carried by Canelus, as Collins did not possess the backpack, or the firearm within it, at the time of the search.

"The fact that a defendant did not have actual possession of the seized item at the time of the search, or that he was not present at the place where the search was conducted, does not preclude in every instance the defendant from having standing to challenge the legality of the search." Commonwealth v. Frazier, 410 Mass. 235, 243 (1991). "To the extent that [Collins] is a codefendant with [Canelus] in indictments that allege possessory offenses, he may assert an expectation of privacy in items seized from [Canelus]." Commonwealth v. Murphy, 63 Mass. App. Ct. 11, 12 n.2 (2005).

The Commonwealth argues that automatic standing is inapplicable here, as Collins "relinquished his possession of the backpack and gun" when he gave it to Canelus. The Commonwealth urges that Collins is charged with actual possession of the gun prior to this transfer, and not constructive possession a short time later. Nothing in the indictments, however, makes such a distinction, and as the facts of the case are susceptible to either argument, Collins is faced with the "dilemma" anticipated by the automatic standing rule: "[s]hould the defendant claim that he possessed the contraband in order to assert standing, the defendant essentially would admit to having committed the crime. Should the defendant exercise his right to remain silent, the defendant would sacrifice any challenge to the search and seizure." Commonwealth v. Amendola, 406 Mass. 592, 597 (1990). "In these special circumstances, standing is conferred upon the defendant to challenge the search and seizure." Ibid. Accordingly, the motion judge was correct in ruling that Collins could contest the search of the backpack held by Canelus at the time he was stopped.

Order allowing motions to suppress affirmed.


text:
    COMMONWEALTH v. ISADORE I., a juvenile.
    16-P-1350
    Appeals Court of Massachusetts.
    Entered: January 12, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a probation violation hearing, a judge of the Juvenile Court found that the juvenile had violated the terms of his probation by committing two subsequent criminal offenses while on probation. As a result, she revoked his probation, entered a finding of delinquency, and ordered him committed to the Department of Youth Services (DYS) until his eighteenth birthday. The juvenile now appeals, arguing that the judge abused her discretion, punishing him for exercising his constitutional right not to admit to pending criminal charges. In his view, the judge impermissibly based the disposition on her personal feelings; improperly punished him for new offenses, rather than the offense for which he was placed on probation; and failed to consider properly the juvenile's rehabilitation. Given the judge's remarks at sentencing, we are constrained to vacate the order of commitment and remand the case for resentencing.

Background. On June 26, 2015, the juvenile was arraigned in the Juvenile Court on charges of disorderly conduct and, being an arrestee, furnishing a false name to a police officer. On August 6, 2015, the disorderly conduct charge was dismissed at the request of the Commonwealth and the juvenile admitted to sufficient facts on the false name charge. The case was continued without a finding of delinquency for one year and the juvenile was placed on probation in the interim.

On March 17, 2016, a violation of probation notice was filed with the court. A probation violation hearing was held on April 8, 2016; the judge found that the juvenile had violated the terms of his probation by committing an assault and battery and attempting to commit an unarmed robbery in Malden on March 13, 2016; in addition, the judge found that he had committed an assault and battery on a police officer in Dedham on March 25, 2016. At the juvenile's request, the disposition was continued to a later date.

On April 28, 2016, the judge held the disposition hearing. Both the probation officer and the juvenile's counsel made sentencing recommendations. Thereafter, the judge, over the next nine pages of trial transcript, berated the juvenile for failing to take responsibility for the subsequent offenses, and for showing no remorse for his actions. Specifically, in response to the juvenile's request that he be reprobated, the judge stated,

"despite the fact that he has no remorse for the facts that this Court found true at the violation of probation hearing, that he accepts no responsibility for those facts, that he accepts no responsibility for the arrest that occurred not a hundred yards away from this courthouse-... Because I know-I'm just saying this. I just scheduled the case for a trial before a jury.... And that's on the assault and battery on a police officer."
She continued,
"[t]he issues before me are the seriousness of the offenses for which [the juvenile]'s being violated, his likelihood of rehabilitation from a juvenile justice standpoint and considering this occurred, I've made a finding of it and there's no remorse for it, there's no acceptance of responsibility for it, which certainly affects, incredibly, my disposition today, rehabilitation.... I've just read about all the things he's done. But legally, he shows no remorse. Legally, he accepts no responsibility. Legally-and those are the things this Court looks at when we determine whether or not he's likely to be rehabilitated and successful on probation ... before committing a child, the likelihood of rehabilitation, there's two new offenses that have occurred and I'm not hearing anything about accepting responsibility, remorse, feeling sorrow-... for what's occurred."

The juvenile's counsel responded, "regarding not showing remorse, I don't respect-I don't represent [the juvenile] on that open charge out of Malden. I don't feel legally, ethically, I can permit him to make a statement, an admission on the record in a legal proceeding regarding an open case like that." With regard to the second charge of assault and battery of a police officer, counsel stated further that "we haven't concluded discovery in that case. I certainly can't speak allowing-." The judge interrupted, saying,

"No, that's-then that's up to you. That's the manner in which you're approaching the representation of your client, which I respect, and it's a certain approach, I certainly respect it. But you obviously know what he's doing here today. He's been found in violation for assaulting a police officer. After the Court heard what I've heard I don't know what more discovery someone needs but that's your approach and I respect that. And I'm being asked to sentence him on this offense for committing that violation that we all heard on April 8th, 2 days ago."

In explaining her sentence, the judge indicated that she must consider the safety of the citizens of the community who have been subjected to the juvenile's "ongoing criminality" and that in the "33 days [since the second offense was committed], [the juvenile] ha[s]n't been able to reflect on that and make a decision that [he's] sorry that [he] did it, that [he] accept responsibility as a 16-year old young man that this occurred." The judge then stated,

"it sounds to me that the argument [the juvenile is] making, is that you did it impulsively so you should be thoroughly excused for it and that you're not responsible. That's not appropriate and I don't think that's an appropriate way for you to look at things. Don't punish me, keep me on probation because I act impulsively. I don't feel bad about it later. I don't accept responsibility for it. And I'm not going to feel badly or express any remorse for the assault I committed on a police officer or my actions. I'll accept the attorney that represents me and the provision of an attorney. I'll accept the support from my clinicians, my custodian, DCF, and the support of [the Home for Little Wanderers], but I will not take any responsibility for it. And that, unfortunately, is a shame. And quite frankly, I don't understand it."

The judge then told the juvenile that, if he admitted to committing the two crimes charged it "would be a significant advancement in [his] maturity."

After the judge revoked the juvenile's probation and vacated the continuance without a finding, adjudicating the juvenile delinquent, and committing him to DYS custody, defense counsel asked the judge to impose a suspended sentence. Denying the request, the judge responded that "[i]t might have been a better approach at the commencement of the case" to ask that any imposed sentence be suspended. The juvenile timely appealed the sentence.

Discussion. After determining that a probationer has violated the terms of his probation, the judge "can either revoke probation and sentence the defendant or, if appropriate, modify the terms of his probation." Commonwealth v. Durling, 407 Mass. 108, 111 (1990). In fashioning an appropriate disposition, the judge "may take into consideration, inter alia, a defendant's character, behavior, background, and amenability to rehabilitation. However, a judge's discretion is not unlimited. [She] may not punish a defendant for an untried criminal offense, [or] punish a defendant in order to send a personal philosophical message.... Furthermore, a judge may not punish a defendant for refusing to confess before sentencing." Commonwealth v. Mills, 436 Mass. 387, 399-400 (2002) (citations omitted). This is especially true in the case of a juvenile disposition, as juvenile proceedings are primarily rehabilitative in nature, not punitive. See Commonwealth v. Hanson H., 461 Mass. 459, 461 (2012). See also G. L. c. 119, §§ 53, 58.

"While 'a probationer need not be provided with the full panoply of constitutional protections applicable at a criminal trial,' he is entitled, at surrender hearings, to certain due process protections." Commonwealth v. Emmanuel E., 52 Mass. App. Ct. 451, 453 (2001), quoting from Commonwealth v. Durling, 407 Mass. at 112. Among the minimum requirements of due process is the right of the juvenile not to incriminate himself by admitting, through a show of remorse, to pending criminal charges. As this court said in Commonwealth v. Jones, 71 Mass. App. Ct. 568, 573 (2008), "[m]ultiple jurisdictions have acknowledged the fine line that exists between appropriately considering remorse and punishing a defendant for exercise of his Fifth Amendment [to the United States Constitution] rights against self-incrimination and to remain silent." While "remorse, or a lack thereof, may be an appropriate part of the court's inquiry into the [juvenile's] character and amenability to rehabilitation," we also acknowledged in Jones"concern that showing remorse requires an expression of guilt, and that true remorse amounts to an admission of guilt.... Generally, constitutional concerns appear to increase as the sentencing judge criticizes the defendant for not expressing remorse, or otherwise considers the defendant's failure to do so as an aggravating factor." Ibid.

Here, the judge made it clear that the juvenile's lack of remorse and failure to accept responsibility for the two crimes alleged "certainly affect [ed], incredibly, [her] disposition." In addition, her many reiterations that the juvenile had shown a lack of remorse and failed to shoulder accountability for his actions, and that he was taking advantage of his right to counsel, give the impression, at least, that improper factors controlled her thinking. In so doing, she lent credence to the juvenile's argument that his sentence was determined by such factors.

At least on this record, we are persuaded that the juvenile has shown an abuse of discretion. See Commonwealth v. Marcus M., 92 Mass. App. Ct. 1, 3 (2017). We therefore conclude that the order revoking the juvenile's probation and committing him to the custody of DYS must be vacated. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Order revoking probation vacated.

      In light of views expressed during the proceedings, we think that a fresh look is appropriate, and, accordingly, direct that the matter be considered by a different judge on remand.

      It appears from the record that, at the time of the underlying offense, the juvenile was fifteen years old and in the custody of the Department of Children and Families (DCF); he had been placed at the Home for Little Wanderers in Walpole. On June 26, 2015, the facility reported "a missing child" to the local police. "After several minutes of searching," an officer found the juvenile on "one of the busiest streets in Walpole." The juvenile was uncooperative with the police officers and told them, among other things, that his name was "Jamal Brown," which was not his name. He was told repeatedly that he was not under arrest, but being detained in response to the "missing juvenile" report until he could be identified. The juvenile then attempted to flee and to push past the officers; he was "controlled and handcuffed." The encounter drew attention from people in local businesses, and, as a result, the juvenile was charged with disorderly conduct. Once his clinician and counselor identified him, he "was charged with giving a false name to a police officer."

      At the probation violation hearing, there was evidence that the juvenile approached a young man who was "hanging out with his friends" and said, "Rip your shit, boy." The young man, who was the victim in the attempted robbery, said, "What do you mean?" The juvenile responded, "Give me your stuff." The victim thought it was a joke because his "friends were friends with [the juvenile]" and he said, "why." "He goes, 'cause I want it, my friend has a gun and he'll come and shoot you. [The victim, still thinking it was a joke] was like, okay." "But then when [the juvenile] grabbed me and, like, tugged me, I was like, okay, I'm calling the police and then [the juvenile] ran with his friend." The victim testified that he was afraid, but not hurt. The juvenile was later arrested without incident at his mother's home after a showup identification.

      At the probation violation hearing, there was evidence that, when the juvenile learned that his probation officer intended to ask that he be detained at the first violation hearing, he ran away. Police soon found him in the parking lot of a local train station; when the officer grabbed him, he pulled away. "And then he broke free with his right arm. And [the officer] noticed down to the side he had a clenched fist." Another officer approached and they placed him on the ground. The juvenile struggled as the officers put him in a police cruiser, kicking at the officer who had approached him initially. The officer, in response to the question, "Did any of his kicks land on you?" answered, "Not really. I mean, they were on my hands so." He testified that he was not injured.

      The judge went on to say that what she was hearing from the juvenile "is I really didn't violate my probation. We have a hearing, you've determined and you heard all the evidence I've heard, you looked and sized up the witnesses as I did. You know exactly what the case is, as I did, beginning of the month. And yet you say, I'll take my jury trial on May, June, which is good, great. But I'm on probation and I committed those acts. The Court heard those acts. The Court made a legal decision. But place me back on probation. I don't accept responsibility for things I do. I don't express remorse for when I do things wrong and the Court finds against me. I don't express those things. I'm just-I'm just on probation and I want to get back to Taco Bell. That's what I'm hearing. It's not impressive. Keep you on probation for two separate criminal offenses. It's not impressive."

      The Commonwealth conceded at oral argument that the repetitive comments made during disposition by the judge were neither ideal nor defensible.

      Based on this conclusion, we need not address the juvenile's remaining arguments.


text:
    COMMONWEALTH v. William COPELAND.
    15-P-29
    Appeals Court of Massachusetts.
    Entered: January 22, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In this consolidated appeal, the defendant, William Copeland, appeals from his conviction following a jury trial on two indictments for negligently or recklessly operating a motor vehicle while under the influence of intoxicating liquor and causing serious bodily injury, G. L. c. 90, § 24L, and two indictments for assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A ; and from the denial of his motion for new trial. We affirm.

1. Ineffective assistance of counsel. To show ineffective assistance of counsel, the defendant "must demonstrate that (1) defense counsel's conduct fell 'measurably below that which might be expected from an ordinary fallible lawyer' ... and (2) he was prejudiced by counsel's conduct in that it 'likely deprived the defendant of an otherwise available, substantial ground of defence.' " Commonwealth v. Lys, 91 Mass. App. Ct. 718, 720 (2017), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In assessing whether the defendant was prejudiced, "a defendant is entitled to a new trial 'if we have a serious doubt whether the result of the trial might have been different had the error not been made.' " Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 439 (2016), quoting from Commonwealth v. Millien, 474 Mass. 417, 432 (2016).

a. Late citation. General Laws c. 90C, § 2, requires delivery of a motor vehicle citation to the defendant at the time and place of a motor vehicle violation, and generally requires dismissal in the absence of a timely citation. Dismissal, however, is unwarranted where "additional time was reasonably necessary to determine the nature of the violation," Commonwealth v. Moulton, 56 Mass. App. Ct. 682, 684 (2002), quoting from G. L. c. 90C, § 2, or "in circumstances where the violation resulted in serious injuries and the purposes of the statute otherwise were met." Commonwealth v. O'Leary, 92 Mass. App. Ct. 282, 286 (2017). Both exceptions apply to the instant case.

First, additional time was reasonably necessary to complete the investigation. The defendant was unconscious at the scene and does not remember the accident, nor do the victims with clarity. There were no other eyewitnesses to the crash, and both the defendant and the victims were seriously injured and unavailable to be interviewed for many days. See Moulton, 56 Mass. App. Ct. at 684 (reversing dismissal of late citation where police could not complete investigation of suspected operation under the influence of intoxicating liquor until the defendant was stabilized and interviewed).

There was some evidence at the scene that the defendant was intoxicated, speeding, and had crossed into oncoming traffic, but additional time was also required to obtain and analyze his blood, retrieve further information to complete a reconstruction report, and take the statements of the participants before the citation could reasonably be issued with confidence. See Commonwealth v. Provost, 12 Mass. App. Ct. 479, 484 (1981) (recognizing that, in serious automobile accidents, "careful and painstaking accident reconstruction is often necessary before the police can obtain the root facts upon which to base a reasoned decision whether citations should be issued and criminal complaints sought"). Contrast Commonwealth v. Burnham, 90 Mass. App. Ct. 483, 487-488 (2016) (affirming dismissal of a citation for operating under the influence where investigation was concluded at the scene without evidence of intoxication, and police neither "believe[d] that 'additional time was reasonably necessary' " nor actively pursued the investigation for months before issuing the late citation). That the citation here was issued approximately eighteen days after the reconstruction report does not itself warrant dismissal where it was issued promptly after the police were able to interview the defendant. See Commonwealth v. Kenney, 55 Mass. App. Ct. 514, 519 (2002) (no "per se rule of dismissal, even though a citation did not issue in compliance with the statute").

Second, G. L. c. 90C, § 2, was enacted "to prevent the 'manipulation and misuse' of traffic citations, and 'to afford prompt and definite notice of the nature of the alleged offense to the putative violator.' " O'Leary, 92 Mass. App. Ct. at 285, quoting from Commonwealth v. Pappas, 384 Mass. 428, 431 (1981). The record here supports no allegations of manipulation or misuse of the citation, and the seriousness of the accident and resulting injuries reasonably notified the defendant of potential charges. See O'Leary, supra at 286, quoting from Kenney, 55 Mass. App. Ct. at 520 ("serious nature of the accident and injuries" forms "ineradicable record of the event" that may provide notice to a defendant). See also Kenney, supra at 519, quoting from Pappas, supra at 431-432 ("It is inconceivable that the defendant would be unaware of the seriousness of a situation in which his vehicle had crossed the center line of a public street and struck a pedestrian"); Moulton, 56 Mass. App. Ct. at 685 ("[G]iven the seriousness of the accident ..., the likelihood of such a citation should have been obvious to the defendant from the time the accident occurred").

This was a serious accident causing serious injury to both the defendant and the victims. Although the defendant may have been unconscious and initially unaware of the accident, he was soon notified of it at the hospital. Given that and the otherwise overwhelming evidence of the defendant's intoxication, it should have been obvious to the defendant that a citation was likely to be issued once the police finished their investigation.

In short, a motion to dismiss under G. L. c. 90C, § 2, would not have been successful. Accordingly, defense counsel's failure to make such a motion did not deprive the defendant of a substantial ground of defense. See Commonwealth v. Sullivan, 469 Mass. 621, 630 (2014) ; Commonwealth v. Spencer, 53 Mass. App. Ct. 45, 50-51 (2001).

b. Medical records and testimony. The medical records here repeatedly described the defendant's obvious intoxication and the challenges that this intoxication posed for his medical care. Such references (the redaction of which defense counsel did request, albeit unsuccessfully) were admissible under G. L. c. 233, § 79. See Commonwealth v. McCready, 50 Mass. App. Ct. 521, 524 (2000) ; Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 727-728 (2016). Furthermore, witnesses testified that the defendant smelled of alcohol at the scene, admitted to drinking alcohol when asked by paramedics, and was observed at the hospital by the attending physician to be "clearly intoxicated." The defendant's blood alcohol content was .11 percent-well above the legal limit. In light of this admissible evidence of the defendant's intoxication, the various references in the medical records to things such as the defendant's substance use history could not have had a significant effect on the jury. Accordingly, defense counsel's failure to seek redaction of these references did not deprive the defendant of a substantial ground of defense. See Lacoy, 90 Mass. App. Ct. at 440 (given overwhelming evidence, no "serious doubt as to whether the result of the trial would have been different if the offending statements had not been made").

c. Black box evidence. "Where, as here, the defendant's ineffective assistance of counsel claim is based on a tactical or strategic decision, the test is whether the decision was 'manifestly unreasonable' when made." Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting from Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). This test is "essentially a search for rationality," Kolenovic, supra, and we "do not 'second guess competent lawyers.' " Commonwealth v. McCray, 457 Mass. 544, 557 (2010), quoting from Commonwealth v. LaCava, 438 Mass. 708, 713 (2003).

Here, defense counsel's decision to waive his objection to the evidence from the vehicle's "black box" was made only after discussion with the judge, reasoned consideration, and consultation with the defendant. Defense counsel then used the black box evidence at length during closing argument to cast doubt on other evidence presented by the Commonwealth. We see no indication that defense counsel's strategic decision was manifestly unreasonable. See Kolenovic, 471 Mass. at 675.

d. Other ineffective assistance claims. The defendant's other claims of ineffective assistance of counsel similarly lack merit. First, whether to exercise peremptory challenges is a strategic decision, and is not manifestly unreasonable where the jurors' stated impartiality was accepted, upon inquiry, by the judge. Commonwealth v. Torres, 453 Mass. 722, 731 (2009). That is precisely the case here, especially given the lack of any actual evidence of the jurors' bias. See Commonwealth v. Leahy, 445 Mass. 481, 499 (2005) (judge may accept juror's representation of impartiality absent "solid evidence of a distinct bias").

Second, there is nothing in the record that suggests that defense counsel could have accomplished anything significant by challenging the reconstruction report with a prior motor vehicle accident report or by investigating the paramedic prior to trial. In the absence of such a showing, the defendant has not established that he was deprived of a substantial ground of defense. See Commonwealth v. Anderson, 445 Mass. 195, 212-213 (2005).

2. Relationship between the prosecutor and an officer. The integrity of the grand jury proceedings in this case was not impaired by the undisclosed romantic relationship between the prosecutor who first presented the case to a grand jury and one of the testifying police officers. The Commonwealth's duty to disclose exculpatory evidence to a grand jury is limited to circumstances where "the prosecutor possesses exculpatory evidence that would greatly undermine either the credibility of an important witness or evidence likely to affect the grand jury's decision, or withholds exculpatory evidence causing the presentation to be 'so seriously tainted,' that the prosecutor must present such evidence to the grand jury." Commonwealth v. Wilcox, 437 Mass. 33, 37 (2002), quoting from Commonwealth v. O'Dell, 392 Mass. 445, 447 (1984). The fact of the relationship was "not weighty enough to constitute a substantial challenge to the demonstration of probable cause, and, if laid before the grand jury, would almost certainly have left unaltered the disposition to indict." Commonwealth v. Biasiucci, 60 Mass. App. Ct. 734, 738 (2004).

Moreover, any error was cured by the Commonwealth's decision to dismiss the indictments and secure new indictments with a different prosecutor. In the absence of a statutory or other mandate, we reserve dismissal with prejudice for circumstances in which "there is 'a showing of irremediable harm to the defendant's opportunity to obtain a fair trial' " or "prosecutorial misconduct that is egregious, deliberate, and intentional." Bridgeman v. District Attorney for the Suffolk Dist., 476 Mass. 298, 316 (2017), quoting from Commonwealth v. Cronk, 396 Mass. 194, 198-199 (1985). The misstep here did not rise to the level of egregiousness and there is no indication in the record that it caused the defendant any prejudice. Indeed, the defendant was able to impeach the officer with the relationship. In the absence of a ground for dismissal with prejudice, the dismissal of the original indictments cured any error.

3. Right to confrontation. The case law does not support the defendant's claim that his right to confrontation was violated by the admission of his blood samples obtained by medical staff not present at trial. See Commonwealth v. Dyer, 77 Mass. App. Ct. 850, 854 (2010) (medical records of blood alcohol level test results "generated for evaluation and treatment purposes do not constitute testimonial evidence triggering a constitutional right of confrontation"). Accord Commonwealth v. Ackerman, 476 Mass. 1033, 1034 (2017).

4. Double jeopardy. The defendant's double jeopardy claim for his conviction on two indictments under G. L. c. 90, § 24L, is precluded by Commonwealth v. Flanagan, 76 Mass. App. Ct. 456, 460-461 (2010). There, we held that the relevant "unit of prosecution is the injury caused to a victim by the defendant's impaired and negligent driving," id. at 461, and thus a conviction may survive for each person injured. The instant case is not distinguishable.

Judgments affirmed.

Order denying motion for new trial affirmed.

      The defendant provides scant support for his claim that Albert Elian's intended expert testimony was not disclosed. Even if we assume that it was not disclosed, it is evident that the trial judge would not have excluded the blood alcohol content evidence as a sanction, and the defendant provides no indication what he could have accomplished had he requested a continuance.


text:
    COMMONWEALTH v. Matthew J. SAMBUCETI.
    17-P-482
    Appeals Court of Massachusetts.
    Entered: January 22, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On appeal from his convictions of operating a motor vehicle while under the influence of liquor, second offense, and leaving the scene of property damage, the defendant, Matthew J. Sambuceti, challenges a Westborough District Court judge's order denying his motion to suppress. The defendant argues that his statements made after a police officer's warrantless entry into the defendant's mother's home should be suppressed because his mother did not provide the police officer with consent to enter. We affirm.

Background. We recite the judge's relevant findings. After arriving at the scene of a single car accident where the operator had left the scene, Officer Widdis ran the plate of the car and identified the defendant as the owner. Officer Widdis proceeded to the defendant's nearby home to check on his condition and to inquire about the accident generally. Officer Widdis parked in the driveway and walked to the illuminated side door area. Officer Widdis immediately saw the defendant and his mother through the side door's large glass window. Officer Widdis and the defendant's mother made eye contact and the mother immediately waved her arm and hand, motioning for Officer Widdis to enter the home. Officer Widdis subsequently opened the door and entered the home without knocking or ringing the doorbell. The motion judge credited Officer Widdis's testimony and found that the defendant's mother's waving gesture is commonly used to signify, "[c]ome here, or come in."

Discussion. When reviewing a motion to suppress, "we adopt the motion judge's factual findings absent clear error." Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008). Although we give the facts found by the judge deference, we "independently determine whether the judge correctly applied constitutional principles to the facts as found." Ibid. "Police may not make a warrantless entry into the home of a third person to arrest a suspect or to search for or seize evidence, absent exigent circumstances or consent." Commonwealth v. Voisine, 414 Mass. 772, 783 (1993). "When consent is the basis for a warrantless entry, the Commonwealth must show consent unfettered by coercion, express or implied, and also something more than mere acquiescence to a claim of lawful authority." Ibid. (quotation omitted).

Here, the defendant was in the dwelling of his mother, who had authority to give Officer Widdis valid consent to enter. The defendant relies on Commonwealth v. Carr, 458 Mass. 295 (2010), in arguing that his mother's consent was a "mere acquiescence" to Officer Widdis and, thus, was not freely and voluntarily given. However, the facts here are "more than an ambiguous set of facts that leaves us guessing about the meaning of the interaction and, ultimately, [the defendant's mother's] ... actions." Id. at 299 (quotation omitted). The defendant's mother's hand gesture to Officer Widdis was not "so ambiguous that we are unable to discern whether [she] voluntarily consented" to Officer Widdis entering her home. Ibid. Thus, the defendant's mother's hand gesture, which, again, the motion judge found to mean "[c]ome here, or come in," was enough to provide Officer Widdis with voluntary consent to enter the home. See Commonwealth v. Voisine, supra at 783 ("The fact that [the home owner] communicated her consent by pointing in the direction of the bedroom where the defendant was hiding, rather than by speaking is of no effect").

Conclusion. "The voluntariness of an individual's consent is a question of fact," ibid.; the motion judge's determination that the defendant's mother's hand motion to Officer Widdis "constituted an invitation or consent to come into the house" was not error.

Judgments affirmed.


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    Susan M. SCHOENIG v. Philip SCHOENIG.
    17-P-517
    Appeals Court of Massachusetts.
    Entered: January 22, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The husband appeals from an amended judgment of modification dated January 5, 2017, that awarded alimony to the wife. The husband raises two primary issues on appeal. First, he contends that the judge erred in finding that the parties' separation agreement (agreement) was ambiguous. That argument is foreclosed, however, because it is contrary to the position the husband took below. See Fortin v. Ox-Bow Marina, Inc., 408 Mass. 310, 323 (1990), quoting from Davis v. Wakelee, 156 U.S. 680, 689 (1895) ("[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position"). Second, the husband argues that the judge's finding that the parties intended the separation agreement to merge into the divorce judgment is clearly erroneous. Third, he argues that the judge abused her discretion in setting the amount of alimony. We affirm.

After a bench "trial by representation" the judge found from the language of the agreement as a whole, coupled with the language in the divorce judgment, that the parties intended that the separation agreement merge into the judgment of divorce. See Parrish v. Parrish, 30 Mass. App. Ct. 78, 83 (1991) ("In determining whether or not the parties' separation agreement survives a judgment of divorce, it is the intent of the parties" that controls). We review this factual finding, see McManus v. McManus, 87 Mass. App. Ct. 864, 867 (2015) (intent of the parties is a question of fact), to determine if it is "clearly erroneous." Basis Technology Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29, 36 (2008). "A finding is 'clearly erroneous' only when, 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Ibid., quoting from Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509 (1997).

We discern no clear error here. The agreement itself provides that "[i]t is the intent of the [p]arties that all other provisions of the Agreement also merge" (emphasis supplied). The "Interpretation of this Agreement" section of the agreement provides that "all provisions that pertain to child support, visitation, and the education of the children be incorporated and merged into the judgment of divorce." In the following paragraph comes the language that "all other provisions of the Agreement also merge and be thereafter forever binding." Looking to these provisions, the finding of the judge that the separation agreement merged into the divorce judgment is supported by the repeated mention of merger. Thus, the judge's finding concerning the parties' intent was not clearly erroneous.

Finally, the husband argues that the judge awarded excessive alimony when she awarded thirty percent of the gross difference in the parties' incomes-resulting in an amount the husband contends exceeds the wife's needs. However, the husband's argument ignores the disjunctive operation of G. L. c. 208, § 53(b ), inserted by St. 2011, c. 124, § 3, which provides that alimony "should generally not exceed the recipient's need or 30 to 35 per cent of the difference between the parties' gross incomes established at the time of the order being issued" (emphasis supplied). See Commissioner of Rev. v. McGraw-Hill, Inc., 383 Mass. 397, 400 n.3 (1981), quoting from Commonwealth v. Olivo, 369 Mass. 62, 67 n.4 (1975) ("The word 'or' is given a disjunctive meaning unless the context and the main purpose of all the words demand otherwise"). Because the judge's alimony award falls within the limits allowed by the statute, it cannot be said to be plainly wrong or excessive.

The husband further argues that, even when an alimony award is within the percentage range allowed in G. L. c. 208, § 53(b ), it must not result in raising the recipient spouse's income above the marital standard of living. Whatever the merits of this argument might be in the abstract, it simply does not apply on the facts here. The judge found that the wife had been able to maintain the marital standard of living in part through the husband's child support payments. Once both children became emancipated, that source of income disappeared and the wife's reduced income was insufficient to meet her needs. The alimony award was designed to compensate for this reduction in income and to maintain the wife's former marital standard of living. Given that calculus, the award is neither plainly wrong nor excessive.

Amended judgment affirmed.

      Even were we to review the question de novo, see Lalchandani v. Roddy, 86 Mass. App. Ct. 819, 823 (2015) ("The question whether a contract is ambiguous is a question of law, as is the interpretation of a separation agreement.... We review these claims de novo"), and conclude that the contract language is ambiguous with respect to merger, our outcome would not be affected because, as we explain later, the judge's finding as to the parties' intent is not clearly erroneous.

      In a trial by representation, the facts are presented through the unsworn oral statements of counsel. The parties agreed to this procedure below, neither side raising any objection to it then or now.

      We acknowledge that the provision continues by stating that the provisions of the agreement will "be thereafter forever binding" (emphasis supplied) upon the parties, and that such language is inconsistent with merger, see, e.g., Moore v. Moore, 389 Mass. 21, 22 (1983). However, inconsistencies in the evidence were for the trial judge to resolve, not us. Our task is merely to determine whether the judge's finding regarding the parties' intent was clearly erroneous-not whether the evidence was uncontradicted.


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    COMMONWEALTH v. Carleb R. MESADIEU.
    16-P-1729
    Appeals Court of Massachusetts.
    Entered: January 22, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A District Court jury convicted the defendant of assault and battery on a family member in violation of G. L. c. 265, § 13M(a ). On appeal, the defendant claims that the judge erred in (1) denying his motion for a required finding of not guilty, and (2) improperly admitting prejudicial hearsay evidence. We affirm.

Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Around 6 p.m. on March 31, 2016, Estuardow Telles, an employee at the Marlborough Holiday Inn, observed two people in a white "SUV" moving toward the exit of the Holiday Inn parking lot. He recognized the person in the passenger seat as his coworker, Lynette Mesadieu. He did not recognize the male driver. Telles observed the driver strike Lynette's head twice with his closed fist. Lynette attempted, but was unable to get out of the SUV. Telles communicated what he had seen to the hotel's general manager, who called the police.

A Marlborough police officer responded to dispatch's report of a "disturbance or an assault at the Holiday Inn." Upon arrival, the officer was met by hotel staff; based on his conversations with them, he identified the defendant as a suspect. The officer contacted the Worcester police, who arrested the defendant and administered Miranda warnings. The officer then transported the defendant from Worcester to the Marlborough police station, where the defendant was told of the potential charges against him and again advised of his Miranda rights. The defendant was lucid and cooperative. When questioned, the defendant stated that he had driven to the Holiday Inn to pick up his wife, Lynette Mesadieu. He further stated that prior to picking up his wife, he was the only one in his vehicle.

Discussion. 1. Sufficiency of the evidence. When a defendant moves for a required finding of not guilty at the close of the Commonwealth's case, we consider the evidence introduced to that point to determine "whether the Commonwealth presented sufficient evidence of the defendant's guilt to submit the case to the jury." Commonwealth v. Dustin, 476 Mass. 1003, 1003 (2016) (quotation omitted). The evidence is sufficient if, "viewing the evidence in a light most favorable to the Commonwealth, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' (emphasis original)." Commonwealth v. Cohen (No. 1), 456 Mass. 94, 120 (2010), quoting from Latimore, supra at 677.

The essential elements of a violation of G. L. c. 265, § 13M are (1) an assault or assault and battery (2) on a family or household member. See Dustin, supra at 1004. The defendant does not dispute that his wife was assaulted. He argues that the evidence was not sufficient to prove that he committed the assault. We disagree. From the defendant's postarrest admission that he had picked up his wife at the Holiday Inn and that he had been alone with her in the vehicle, the jury could have reasonably inferred that he was the person who Telles observed committing the assault in the SUV. In these circumstances, the defendant's identity as the assailant was not "left to a jury's conjecture, surmise, or guesswork." Commonwealth v. Rivera, 460 Mass. 139, 141 (2011).

2. Admission of the officer's testimony. The defendant claims that the judge erred in admitting the responding officer's statement that he went to the Holiday Inn because dispatch reported a "disturbance or assault." According to the defendant, the statement was inadmissible hearsay. We disagree. Because the testimony was not offered to prove the truth of the matter asserted, but only to explain why the officer responded to the Holiday Inn, it was not hearsay. See Mass. G. Evid. § 801(c)(2) (2017). "Because such explanatory statements do not repeat the substance of out-of-court conversations, they pose no hearsay (and, by extension, no confrontation) issues." Commonwealth v. Tanner, 66 Mass. App. Ct. 432, 439 (2006).

Judgment affirmed.

      " '[F]amily or household member' shall mean persons who (i) are or were married to one another." G. L. c. 265, § 13M(c ), as appearing in St. 2014, c. 260, § 23.


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    D5 IRON WORKS, INC. v. DANVERS FISH & GAME CLUB, INC., & others.
    17-P-89
    Appeals Court of Massachusetts.
    Entered: January 22, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Thomas Corcoran and Patriot Range Technologies, Inc.

   D5 Iron Works, Inc. (D5) appeals from a decision of a judge of the Superior Court awarding summary judgment to Danvers Fish & Game Club, Inc. (DFG), and dismissing D5's claims that DFG owes it $196,500 for work done as a subcontractor on a rifle range on DFG's property. For the reasons that follow, we affirm.

Hired by the general contractor, Patriot Range Technologies, Inc. (Patriot), to fabricate and install steel components for DFG's firing range, D5 completed its initial work on or about January 17, 2014, and submitted an invoice in the amount of $190,000, due on February 16, 2014. As authorized by Patriot, on or about February 3, 2014, D5 completed additional work on a conveyor system for the firing range and issued a bill for $6,500 due on March 5, 2014. Patriot made no payment to D5.

On February 28, 2014, D5 recorded a notice of subcontract on DFG's property, as required by G. L. c. 254, § 4. On March 18, 2014, D5 recorded an amended notice of subcontract asserting it was owed $196,500. On April 7, 2014, D5 filed a statement of account, as required by G. L. c. 254, § 8. D5 filed a second notice of contract and statement of account on December 19, 2014.

D5 asserts that in March, 2014, counsel for DFG stated that DFG intended to pay D5 in full for all work completed. Nonetheless, Richard Lidner, owner of D5, testified at his deposition that D5 pursued its rights under the mechanic's lien statute "in case things didn't pan out." D5 avers that, again, on April 29, 2014, DFG's president represented that D5 would be paid in full and D5 relied upon that representation and forbore on its lien rights. Lidner averred that "[w]e did not pursue our lien rights based on conversations that we had with the owner of [DFG]" who indicated D5 would be paid. Lidner repeatedly testified, however, that the only conversation he had with the president of DFG was in February of 2014. Then, on direct examination by his attorney, Lidner testified that he or his assistant, Jenn, also had conversations in March, 2014, with DFG. The record does not reflect that DFG conditioned any assurances of payment on D5 foregoing its rights under its mechanic's lien. DFG denies that it represented to D5 that it would pay for the work D5 had completed.

On May 14, 2014, DFG terminated its contract with Patriot and on May 23, 2014, commenced an action against Patriot seeking to recover costs for completing the project (DFG-Patriot litigation). DFG filed a request for a default judgment supported by its treasurer's February 2, 2015, affidavit that represented that DFG may be liable to D5 for $196,500 "relating to its purported mechanic's lien that has been recorded/filed on the property as a result [of] work it allegedly performed for" Patriot, and asked that the amounts it owed Patriot under their contract be reduced by the $196,500 owed to D5. On February 4, 2015, the court entered judgment, crediting DFG with the $196,500 it "may" owe to D5. The judge concluded that DFG had overpaid Patriot by $174,152.17 and awarded damages in that amount. So far as the record reflects, DFG did not suggest to the judge that D5's lien should have been dissolved as invalid or that it had other defenses to the debt reflected in the mechanic's lien. Rather, DFG allowed judgment to enter in the DFG-Patriot litigation, crediting DFG with payment of the $196,500 due to D5.

D5 commenced this action against DFG on February 3, 2015, seeking to recover under its mechanic's lien and asserting claims of breach of contract, intentional or negligent misrepresentation, and violation of G. L. c. 93A. The judge awarded summary judgment to DFG, concluding that the mechanic's lien was not valid because D5 failed to comply with statutory deadlines. The judge also found that D5 failed to raise a genuine question as to whether it reasonably relied on any representations by DFG that it would pay the amounts owed to D5 by Patriot.

Discussion. Mechanic's lien. "The primary purpose of [a mechanic's] lien is to provide security to contractors, subcontractors, laborers, and suppliers for the value of their services and goods provided for improving the owner's real estate.... At the same time, the statute contains filing and notice requirements to protect the owner and others with an interest in the property." National Lumber Co. v. United Cas. and Sur. Ins. Co. 440 Mass. 723, 726 (2004), quoting from Hammill-McCormick Assocs. v. New England Tel. & Tel. Co., 399 Mass. 541, 542-543 (1987). "A mechanic's lien is not a common-law right but a creature of statute, which 'compels strict compliance in order to obtain relief.' " National Lumber Co. v. Lombardi, 64 Mass. App. Ct. 490, 492-493 (2005), quoting from Mullen Lumber Co. v. Lore, 404 Mass. 750, 752 (1989). "The statute is strictly construed against the party claiming the lien." Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 644 (2002). "[R]eluctance to ruffle anyone's feathers by early notification, however understandable or common in the industry, does not change the plain meaning of the statute." BloomSouth Flooring Corp. v. Boys' & Girls' Club of Taunton, Inc., 440 Mass. 618, 624 (2003).

General laws c. 254, § 11, as amended through St. 1996, c. 364, § 11, provides that a mechanic's lien "shall be dissolved unless a civil action to enforce it is commenced within ninety days after the filing of the statement required by section eight." Even assuming all of D5's filing requirements were met by the March 18, 2014, filings, no action was commenced until February 3, 2015, well beyond the ninety-day enforcement period. To the extent D5 relies on its second notice of contract and statement of account filed December 19, 2014, that filing was untimely as it occurred at least eight months after D5 or Patriot had stopped doing work on the property. Moreover, once D5 chose to file its first notice of contract and statement of account but failed to file an enforcement action within the ninety days set forth in the statute, a second statement of account is without effect. See Mullen Lumber Co., 404 Mass. at 756. "There can be but one lien for the materials supplied and the filing of a second statement of account concerning the same materials neither extends the statutory period nor revives the lien if the statutory period has passed." Id. at 756-757.

D5 argued below that DFG should be judicially estopped from challenging the validity of D5's lien because DFG adopted the position in the DFG-Patriot litigation that the lien was valid. The judge disagreed, noting that DFG described the lien in the DFG-Patriot litigation as a "purported lien" and stated it "may" be liable to D5.

"Judicial estoppel is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding." Murphy v. Wachovia Bank of Del., N.A., 88 Mass. App. Ct. 9, 16 (2015), quoting from Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 639-640 (2005). "As an equitable doctrine, judicial estoppel is not to be defined with reference to 'inflexible prerequisites or an exhaustive formula for determining [its] applicability.' " Otis, 443 Mass. at 640, quoting from New Hampshire v. Maine, 532 U.S. 742, 751 (2001). Two fundamental elements, however, are "widely recognized as comprising the core of a claim of judicial estoppel. First, the position being asserted must be 'directly inconsistent,' meaning 'mutually exclusive' of, the position asserted in a prior proceeding," and "[s]econd, the party must have succeeded in convincing the court to accept its prior position." Id. at 640-641, and cases cited. "Where the court has found in favor of that party's position in the prior proceeding, 'judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.' " Id. at 641, quoting from New Hampshire v. Maine, 532 U.S. at 750.

We defer to the judge's discretion as to whether the doctrine of judicial estoppel should apply "unless 'we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives.' " Murphy, 88 Mass. App. Ct. at 16, quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Here, while the judge found that DFG described the mechanic's lien as "purported," she did not comment on the fact that DFG also requested and received a credit for the full amount of the lien. As D5 points out, even if DFG characterized the mechanic's lien as a "purported" lien in its complaint, there was nothing conditional about its request for damages. In essence, in the DFG-Patriot litigation, DFG was willing to ignore any defects in the mechanic's lien and any defenses to the underlying claim in order to receive a credit in the amount it owed to Patriot pursuant to their contract.

While we are persuaded, in these circumstances, that DFG should be estopped from denying that D5 had placed a mechanic's lien on its property and that DFG had received a credit from what it owed Patriot in the full amount of the lien, DFG did not make any assertions in the DFG-Patriot litigation about the validity of the mechanic's lien going forward. Whether or not D5 had a valid mechanic's lien, D5 failed to timely file an appropriate action to enforce the lien and nothing in the DFG-Patriot litigation alters that fact. Indeed, by the time DFG requested the credit in its February 2, 2015, affidavit in support of assessment of damages against Patriot, D5 had already missed the deadline to file a complaint to enforce its lien. Under the theory of recovery D5 pursued in this litigation, principles of judicial estoppel are unavailing.

In finding that judicial estoppel does not apply, the judge noted that she offered no opinion as to whether D5 has a remedy for any unjust enrichment of DFG resulting from execution of its judgment against [Patriot] and expressly granted leave to D5 "to amend its complaint to assert such a claim should the facts support it." See Mike Glynn & Co. v. Hy-Brasil Restaurants, Inc., 75 Mass. App. Ct. 322, 329-330 (2009) (noting Restatement of Restitution and tendency in modern cases to allow subcontractors to bring claims against party who retains benefit of performance without paying anybody for it despite general rule that in absence of action pursuant to a mechanic's lien, owners are not liable to subcontractors). While we are sympathetic to D5's circumstances, we take no position on the merits of a claim for unjust enrichment. Indeed, such a claim is not before us.

Misrepresentation. There is nothing in the record to suggest that DFG made representations that caused D5 to forbear on its remedies under the mechanic's lien statute. D5 pursued its lien despite early assurances from DFG that D5 would be paid. We agree with the motion judge and see nothing in subsequent assurances that would have caused D5 to change its course and give up its right under the lien.

Judgment affirmed.