text:
    CITY OF FITCHBURG v. Ruediger VOLK.
    17-P-691
    Appeals Court of Massachusetts.
    Entered: April 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Acting through its board of health and fire department.

   On June 24, 2016, the city of Fitchburg, acting through its board of health and fire department (city), filed a "petition to enforce the State sanitary code and for the appointment of a receiver" in the Worcester County Division of the Housing Court Department. The city sought as its sole claim for relief the appointment of a receiver to enforce the State sanitary code in a multifamily property owned by the defendant. The defendant filed an opposition to the petition on July 20, 2016.

On July 20, 2016, a judge issued a preliminary injunction directing the defendant to hire a management company approved by the city to correct all "sanitary and building code violations," to maintain the property in compliance with the codes, and to "curtail criminal activity at the property." The judge also scheduled a review hearing. The city later filed a complaint for contempt on August 30, 2016, due to the defendant's failure to retain an acceptable management company. Following the review hearing held on September 23, 2016, at which the judge again granted the defendant's request for more time to find a management company, the judge on October 25, 2016, issued an order appointing Ted Construction as receiver. The receiver took possession of the property and, to date, the administration of the receivership continues in the Housing Court. The defendant filed a timely notice of appeal.

Although the defendant appealed from the judge's October 25, 2016, order appointing a receiver, he has explicitly waived any argument as to the propriety of that order. Given his failure to address the issue on appeal, as well as his express waiver in his brief, we deem the issue waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

Instead, the defendant purports to appeal from actions the judge and the receiver took since the October 25, 2016, order. Of those issues, the only one properly before us is the propriety of the judge's decision to appoint this particular receiver, as the defendant raised that issue in his motion for reconsideration.

"Generally, the appointment of a receiver rests in the sound discretion of the court." Falmouth Natl. Bank v. Cape Cod Ship Canal Co., 166 Mass. 550, 568 (1896). A court will resort to receivership only in cases where "[t]he more usual remedies [such as contempt proceedings or injunctions] ... are inadequate." Perez v. Boston Hous. Authy., 379 Mass. 703, 736 n.32 (1980), quoting from Morgan v. McDonough, 540 F.2d 527, 533 (1st Cir. 1976), cert. denied, 429 U.S. 1042 (1977). As such, receivership is "sparingly invoked." Lopez v. Medford Community Center, Inc., 384 Mass. 163, 169 (1981).

The defendant appears to make two arguments as to why the judge erred in appointing Ted Construction as receiver. First, he argues that the receiver's appointment violates a city ordinance that he claims mandates that property managers or landlords live within twenty miles of the city. We note that the defendant has not provided a copy of the ordinance and that a local ordinance is not "an appropriate subject of judicial notice." Lawrence v. Falzarano, 380 Mass. 18, 25 n.10 (1980). See Mass. G. Evid. § 202(c) (2018). Nevertheless, as the city notes, any such ordinance would apply exclusively to property managers and landlords, not to court-appointed receivers.

Second, the defendant claims error in the appointment of Ted Construction as receiver because it advertises itself as a builder of single-family homes, whereas the defendant's property is a five-family home. We see no abuse of the judge's discretion. The defendant experienced considerable difficulty in finding a management company willing to take on his property, as evidenced by the defendant's repeated requests for more time to locate an acceptable manager. Furthermore, from the standpoint of building and sanitary code compliance, a building with multiple residential units is not materially different from a single-family home.

Judgment affirmed.

Order denying motion for reconsideration affirmed.

      In her order, the judge concluded that the defendant "has failed to address the sanitary and building code violations that render the Property concerns for public health and safety ... [and] [t]o date, the [defendant] has failed to undertake or is not capable of undertaking the repairs required to bring the Property into compliance with the Code."

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

      The city rejected the defendant's proposed management company due to its poor history when acting as a receiver.

      The remaining arguments are not before us as they concern conduct that postdates the notice of appeal. As the city notes, other than the motion for reconsideration, the defendant's record appendix contains only documents that postdate the notice of appeal and are, therefore, not properly part of the record on appeal.


source: Caselaw Access Project

license: Public Domain

text:
    Darinda L. MATHIEU v. Peter J. SHREAD.
    17-P-111
    Appeals Court of Massachusetts.
    Entered: April 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Under a divorce judgment nisi made final in April of 2007, the defendant (father) was required to pay $567 per week in child support. In 2013, the plaintiff (mother) filed a complaint for modification seeking to increase that amount. After trial, a Probate and Family Court judge issued a modification judgment that entered on March 26, 2015. Pursuant to a motion for clarification filed by the mother, the same judge on June 29, 2015, entered an order amending the terms of the modification judgment in certain respects. Unhappy with the result, both parties appealed. For the reasons set forth below, we dismiss the mother's appeal as not properly before us, and, finding insufficient merit in the father's own appeal, we affirm the modification judgment as amended.

The timeliness of the appeals. The father filed two notices of appeal. First he filed one on March 31, 2015 (five days after entry of the original modification judgment). Second, after the modification judgment itself was amended, the father filed a second notice of appeal on July 24, 2015 (twenty-five days after entry of the order amending that judgment). His appeal therefore was timely. See Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013).

The mother filed a single notice of appeal on March 3, 2016. This was 343 days after entry of the original modification judgment, 248 days after entry of the order amending the modification judgment, and 223 days after the father's appeal of the latter. Hence, her appeal indisputably was significantly late (regardless of whether her motion for clarification tolled the deadline for an appeal of the original modification judgment). See Mass.R.A.P. 4(a).

Because the mother had missed the deadline for filing her appeal, she attempted to cure this problem by filing in the Probate and Family Court a motion to file a late appeal. That motion was filed on December 31, 2015, and nominally allowed by a Probate and Family Court judge on March 10, 2016. However, under the express terms of Mass.R.A.P. 4(c), as amended, 378 Mass. 928 (1979), a trial court judge has the authority to allow the filing of a late notice of appeal only "for a period not to exceed thirty days from the expiration of the time otherwise prescribed by [that] rule." Since far more than thirty days had already run by the time the mother's appeal was due, the Probate and Family Court judge had no authority to allow a late appeal, which the judge appeared to acknowledge in his endorsement on the motion. See Eyster v. Pechenik, 71 Mass. App. Ct. 773, 780 (2008). Unaided by a valid extension of the appeal deadline, the mother's appeal was untimely, and it therefore is not properly before us. Feakes v. Bozyczko, 373 Mass. 633, 634 n.1 (1977).

The merits of the father's appeal. We review the judge's decision regarding child support for abuse of discretion. Boulter-Hedley v. Boulter, 429 Mass. 808, 811 (1999). "Where[, as here,] the parties' combined gross income exceeds the maximum level at which the guidelines are strictly applicable, a judge has discretion to adjust upward from the 'minimum presumptive level of support.' " M.C. v. T.K., 463 Mass. 226, 233 (2012), quoting from Adams v. Adams, 459 Mass. 361, 393 (2011). See Massachusetts Child Support Guidelines § II.C (2013) (no presumptive application for portion of combined annual gross income of parties greater than $250,000).

The primary focus of the father's appellate brief is in responding to the mother's untimely appeal. Indeed, the father presses his own appeal in only four pages of that brief, with approximately one-half of those four pages comprised of boilerplate recitations of the applicable standards of review. Nothing included in the remaining two pages persuades us that the judge abused his discretion in setting the amount of support the father was required to pay. Before turning to the father's arguments, we first provide relevant background.

The original modification judgment ordered the father to pay base child support of $713 per week, plus twenty percent "of all [of the father's] gross income." This judgment was accompanied by a "rationale" which indicated that the judge had intended to set base child support keyed to an income of $250,000 per year, with the twenty percent above that to be applied only to the father's income above $250,000 (not all of his income). The mother pointed out this apparent inconsistency in her motion to clarify (even though, strictly speaking, this was against her interest). She also pointed out that if the base child support was keyed to what the guidelines would generate for the first $250,000 of income, then the proper figure would be $772 per week, not the $713 figure that the judge used. Thus, the mother was arguing that, consistent with his rationale, the judge should have set the base child support at $772 per week, plus twenty percent of any income above $250,000. Instead, what the judge did in the amended modification judgment was to keep the base child support at $713 (a figure that corresponds, under the guidelines, to the $226,564 annual base income reported by the father), with the additional twenty percent to apply to income above $226,564.

The father's lead argument is that, under the guidelines, the judge should have ordered that the twenty percent figure apply only to income above $250,000, not $226,564 (the base salary on which the base child support of $713 was set). In this manner, however, additional income between $226,564 and $250,000 would not have been subject to any increased child support, a result that the judge plainly did not intend. We further note that if the $250,000 threshold had been chosen, then the base weekly child support presumably would have been raised. The father has not addressed this issue. In short, the father has not shown that the judge abused his discretion in intending and ordering that the twenty percent be applied to income over the father's base income of $226,564.

The father additionally argues that having increased his child support obligations, the judge should not additionally have ordered him to pay some or all of certain medical, educational, and travel expenses incurred by the child. He suggests that in setting his obligations, the judge relied solely on the increases to the father's income, paying scant attention to other relevant factors. According to the father, this had "the effect of constructively distributing [his] estate." Smith v. Edelman, 68 Mass. App. Ct. 549, 554 (2007).

The arguments that the father makes in this vein are stated in conclusory terms with negligible attention to either the facts of this case or the orders issued by the judge. As such, the father's contentions do not rise to the level of appellate argument required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Apart from that problem, the father's arguments do not demonstrate that the judge abused his discretion.

Plaintiff's cross appeal dismissed.

Modification judgment, as amended by order entered June 29, 2015, affirmed.

      The endorsement read: "The motion is allowed (so long as the Appeals Court has no objection)."

      Following oral argument, the mother filed a motion seeking after-the-fact approval to file a late appeal. She argues that where the notice of appeal was filed within one year of the judgment from which she seeks to appeal, we have the authority to allow her motion nunc pro tunc. See Commonwealth v. White, 429 Mass. 258, 263-264 (1999). Assuming that to be true, we are unpersuaded that the mother has shown "good cause" for the delays. See Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). We therefore deny her motion.

      We note that the case law well recognizes that, in considering whether to increase child support based on an increase in the disparity between the parent's respective incomes, the guidelines "allow a child to benefit from one parent's higher income and avoid a 'gross disparity' of standard of living." M.C. v. T.K., 463 Mass. at 235.


text:
    COMMONWEALTH v. Mcisaac CALIXTE.
    17-P-317
    Appeals Court of Massachusetts.
    Entered: April 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a bench trial, the defendant was convicted of threatening to commit a crime in violation of G. L. c. 275, § 2, and assault and battery on a police officer in violation of G. L. c. 265, § 13D. On appeal, he argues that both convictions should be reversed because (i) they were supported by insufficient evidence, and (ii) the trial judge's colloquy failed to sufficiently ensure that he made a voluntary and intelligent waiver of his right to a jury trial. We agree that the evidence was not sufficient to support the conviction of threatening to commit a crime and, accordingly, that judgment is reversed, the finding is set aside, and judgment shall enter for the defendant on that charge. We also agree that the jury waiver colloquy was inadequate and therefore on the charge of assault and battery on a police officer, the judgment is reversed and the finding is set aside.

Background. In May, 2015, the victim, a mail carrier, was walking on Valentine Street in West Newton when a man approached her. The man got very close, began swearing at her and calling her names, and made gestures at her "like [he was] going to shoot [her]." She became very frightened, believing the man was either going to shoot her or jump on her. As she walked away from the man, she observed him walking towards Chestnut Street. About ten minutes later, she stopped a police officer and reported the incident.

Soon thereafter, Newton police Sergeant Amanda Henrickson (who was at a nearby Newton police station) received a call about the incident. Within two minutes, as she was driving southbound on Chestnut Street, she stopped when she saw several police officers gathered around the defendant on the easterly sidewalk near the location of the incident. She observed that the defendant was "very tense, almost clenching[,] pacing back and forth," and speaking loudly. The defendant failed to respond directly to commands. The police officers arrested the defendant and brought him to the police station.

During booking, the defendant was uncooperative, thrashing his body when police officers attempted to search him and kicking his legs out towards the officers. One officer sprayed the defendant's face twice with pepper spray. In response, the defendant spit on the floor and also onto Henrickson's face and torso.

Discussion. 1. Insufficient evidence of identification. The defendant first contends that his conviction of threatening to commit a crime should be reversed because the Commonwealth presented insufficient evidence identifying him as the individual who threatened the victim. The identification evidence consisted of the victim's physical description of the assailant as a black man with long black hair and baggy clothes. None of these details matched Henrickson's description of the defendant. In particular, Henrickson did not mention the length of the defendant's hair, the fit of his clothes, or his race; instead, she described the defendant as a muscular man of average height wearing long black pants and a black shirt.

The other evidence arguably connecting the defendant to the incident was that he was apprehended near the scene of the crime. However, mere presence at the scene of a crime is not sufficient to sustain a conviction. See Commonwealth v. Mazza, 399 Mass. 395, 399 (1987). Accordingly, even construed in the light most favorable to the Commonwealth and drawing all reasonable and possible inferences in the Commonwealth's favor, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence was insufficient to support a finding beyond a reasonable doubt that the defendant was the individual who threatened the victim.

2. Assault and battery on a police officer. The defendant next argues that his conviction of assault and battery on a police officer must be overturned because (i) the Commonwealth failed to prove that he committed an intentional act when he spit on Henrickson, and (ii) the trial judge's colloquy did not adequately ensure that he intelligently and voluntarily waived his right to a jury trial. While we disagree that the evidence was insufficient, we agree that the colloquy was inadequate.

i. Sufficiency of the evidence of intent. The defendant argues that the Commonwealth did not produce sufficient evidence to show that the defendant's act of spitting on Henrickson was an intentional act that did not happen accidentally. Commonwealth v. Ford, 424 Mass. 709, 711 (1997). We disagree. After the defendant was sprayed with the pepper spray, he deliberately gathered phlegm into his mouth, turned towards Henrickson, and then spit directly at her, covering both her face and torso. Viewing this evidence in the light most favorable to the Commonwealth, Latimore, 378 Mass. at 676-677, the timing and sequence of these events was sufficient to support the finding that the defendant consciously chose to spit on Henrickson.

ii. Jury waiver. Nonetheless, we are constrained to reverse the conviction because there was insufficient basis in the record to conclude that, on the day of the trial, the defendant's waiver of his right to a jury trial was knowing and voluntary.

We look first to the judge's colloquy. While there is not a "rigid pattern" or any prescribed formula to which trial judges must adhere in conducting the colloquy, Ciummei v. Commonwealth, 378 Mass. 504, 510 (1979), the record must provide sufficient evidence that the defendant "indicate[d] ... 'a comprehension of the nature of the choice' between a bench and jury trial.' " Commonwealth v. Hernandez, 42 Mass. App. Ct. 780, 784 (1997), quoting from Commonwealth v. Schofield, 391 Mass. 772, 775-776 (1984). Here, the colloquy provides insufficient basis on which to conclude that the defendant comprehended the nature of his choice between a bench trial and a jury trial. The trial judge made practically no substantive inquiries of the defendant and provided him with almost no substantive information. Commonwealth v. Towers, 35 Mass. App. Ct. 557, 558-559 (1993) (colloquy was inadequate where "[a]lthough the judge refers to jury trial, there is no description here of what such trial consists of, so as to put it in any meaningful apposition to trial by judge, which also goes undescribed").

In addition to the brief colloquy, the record reflects that the defendant executed a written jury waiver form and that his then-counsel (who was not trial counsel) also signed a certification that he had explained to the defendant the specifics of his right to a jury trial. Both forms, however, were executed five months before the colloquy and trial. See Commonwealth v. Abreu, 391 Mass. 777, 778 (1984) (colloquy must be conducted "contemporaneously with and before accepting any waiver"); Commonwealth v. Pavao, 423 Mass. 798, 803 (1996). Cf. Hernandez, 42 Mass. App. Ct. at 783-785 ; Commonwealth v. Onouha, 46 Mass. App. Ct. 904, 904-905 (1998) (sparse colloquy coupled with contemporaneously signed written waiver adequate). Furthermore, in the five months between the time that the defendant signed the waiver form and the trial, the defendant was evaluated for potential mental health issues.

Under these circumstances, the record was insufficient to conclude that the defendant's waiver of his right to a jury trial was knowing and voluntary. Abreu, 391 Mass. at 778-780. Accordingly, the defendant's conviction of assault and battery on a police officer is reversed and the finding is set aside.

On the charge of threatening to commit a crime, the judgment is reversed, the finding is set aside, and judgment shall enter for the defendant.

On the charge of assault and battery on a police officer, the judgment is reversed and the finding is set aside.

      The trial transcript identifies this witness as "Ann Hendrickson"; however, as both parties note, the witness's name is Amanda Henrickson, as reflected on the complaint.

      The victim did not make an in-court identification of the defendant as the person who threatened her, and the Commonwealth presented no evidence of an out-of-court identification. Cf. Commonwealth v. Crayton, 470 Mass. 228, 243-244 (2014).

      The Commonwealth maintains that the assailant's behavior with the mail carrier was similar to the defendant's behavior when surrounded by numerous officers on Chestnut Street. However, the assailant loomed over the mail carrier, called her names, and made a gesture as if he had a firearm. In contrast, the defendant's behavior when surrounded by several officers was described as tense, pacing, and nonresponsive.

      The colloquy is set forth below:
      The Court : "Okay. So why don't we do a jury colloquy. [Trial counsel] has explained to you about what that is, right; because you do have your right to a jury trial. But you have chosen to go on a bench trial, right?"
      The Defendant : "Yes."
      The Court : "So, I have a waiver signed from you from another date which says that you understand that you are waiving your right to a jury trial. And I just want to make sure that that is still the same thing today, right?"
      The Defendant : "Yes."
      The Court : "So halfway through this trial you cannot decide that all of a sudden you want to go to a jury trial, right?"
      The Defendant : "Yes."
      The Court : "You're choosing to go through a bench trial, which means a trial before a judge. And that judge is me, right?"
      The Defendant : "Yes."
      The Court : "Okay."
      The Clerk : "You already signed it."
      The Defendant : "Oh."
      The Court : "So you've already signed it, but I like to give someone an opportunity to make sure they understand on the day of trial that, in fact, you have waived your right to a jury trial, okay?"
      The Defendant : "Yes."
      The Court : "All right. And you're doing that knowingly and voluntarily, and you've consulted with [trial counsel] about that case, right?"
      The Defendant : "Yes."

      While on the day of trial, trial counsel spoke to the defendant about, inter alia, waiving his right to a jury, the content of that communication was not of record. Commonwealth v. Abreu, 391 Mass. 777, 780 (1984) ("Nor does the Commonwealth's observation that the defendant was advised by counsel, albeit off the record, regarding the right to trial by jury, make his waiver valid. Ciummei requires that any such colloquy be on the record if it is to be the basis upon which a judge is to conclude a waiver of the right is voluntary and intelligent").

      Indeed, during the trial, an outburst by the defendant caused trial counsel to ask for a sidebar during which the trial judge inquired about the defendant's mental health and questioned whether his competency should be determined by a mental health professional.


text:
    COMMONWEALTH v. Favian CRUZ.
    17-P-506
    Appeals Court of Massachusetts.
    Entered: April 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Favian Cruz, was convicted of two counts of indecent assault and battery on a child under the age of fourteen and four counts of aggravated rape of a child. The defendant argues on appeal that the motion judge erred in denying his motion to suppress and that alleged trial errors created a substantial risk of a miscarriage of justice requiring a new trial. We affirm.

Background. In October, 2012, police were investigating the defendant, who was suspected of sexually abusing his stepdaughter. The defendant voluntarily presented himself at the request of police for an interview. Detective Sergeant Stacey Bruzzese read the defendant the Miranda warnings, during which the defendant stated that he wanted to speak with an attorney. Bruzzese ended the interview and placed the defendant in custody on two warrants. After the defendant was booked, during which he was again given Miranda warnings, he made a telephone call. At that point, Bruzzese explained the nature of the warrants, including that the defendant was charged with the rape of the victim. As Bruzzese later testified, the defendant responded and said that he knew this was going to happen and that is why he had stopped speaking to the victim. Bruzzese advised the defendant that she could not speak with him because he already invoked his right to counsel.

The defendant filed a pretrial motion to suppress all statements made by him to police. That motion was denied after a hearing. Nonetheless, at trial, the Commonwealth did not elicit testimony about the statements in its case-in-chief. The defendant testified in his own defense and denied the charges. On cross-examination, he affirmed that he had a good relationship with the victim, and denied saying that he "thought this was going to happen, and that she was going to get [him] in trouble" and that this "was not the reason why he stopped seeing her." The Commonwealth recalled Bruzzese in rebuttal. She testified that the defendant stated to her "that he knew this was going to happen, and that [the victim] told him she was going to get him into trouble, and that this is why he stopped speaking to her."

Discussion. 1. Defendant's statement. The defendant contends that his statement to Bruzzese should have been suppressed because it was the product of a custodial interrogation conducted after he invoked his right to counsel. The parties do not dispute that the defendant was read Miranda warnings and that the defendant invoked his right to counsel, nor do they dispute that the defendant was in custody. The defendant challenges whether he was subject to an interrogation or its functional equivalent.

We decline to address the judge's ruling on the motion to suppress because the Commonwealth did not introduce the defendant's statement in its case-in-chief. The issue therefore is moot.

To the extent the defendant is challenging the use of the statement for impeachment, there was no error. As the defendant acknowledged at oral argument, a suppressed statement may still be used for impeachment purposes. See Commonwealth v. Harris, 364 Mass. 236, 239 (1973) (statement elicited in violation of Miranda safeguards may be used to impeach credibility of defendant's testimony if inconsistent with statement, so long as statement is not "coerced or involuntary"). The Commonwealth elicited testimony regarding the statement only after the defendant testified about his good relationship with his stepdaughter. The statement served only to impeach his testimony on this point.

To the extent the defendant did not object to the testimony contemporaneously, so that a limiting instruction was not given immediately, we do not agree that there was a substantial miscarriage of justice. After closing arguments, the trial judge instructed the jury that a witness's prior inconsistent statement is not itself evidence and that it is only relevant as to the witness's credibility. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997) ("We presume that a jury follows all instructions given to it").

To the extent the defendant argues that he would not have testified if the statement was suppressed, the argument is a nonsequiter. When the defendant took the stand, the Commonwealth had rested its case-in-chief and he knew that the Commonwealth had not offered any testimony about his statement, just as no evidence would have entered up to that point had the statement been suppressed. In any event, a defendant cannot reasonably expect to testify to misleading facts without consequence. See Harris, supra at 329. We discern no error.

2. Alleged trial errors. The defendant argues that several alleged trial errors, either individually or collectively, warrant a new trial. We disagree.

The Supreme Judicial Court has held that "testimony on the general behavioral characteristics of sexually abused children may properly be the subject of expert testimony because behavioral and emotional characteristics common to these victims are 'beyond the jury's common knowledge and may aid them in reaching a decision.' " Commonwealth v. Federico, 425 Mass. 844, 847-848 (1997), quoting from Commonwealth v. Colin C., 419 Mass. 54, 60 (1994). However, "a linking of the generalized opinion to the experience of the actual child witness is impermissible vouching.... If that link is avoided, and the testimony does not focus on the specific child witness, the testimony is usually allowed." Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 55 (2003). In addition, the jury may not be "impermissibly ... invited to find an identity between the hypothetical subjects of the expert testimony and the specific child witness who has testified before them." Ibid.

The defendant challenges the testimony of the Commonwealth's expert, Dr. Stephanie Block, arguing that her testimony about child sexual abuse was both so narrow that it provided the jury with a profile of a credible child witness to assess the victim's credibility, and so broad that the testimony was irrelevant. The defendant sexually assaulted the victim when she was between the ages of eight and eleven. The victim first disclosed the abuse to her cousin when she was thirteen years old, and the victim was sixteen years old at the time of trial. Dr. Block testified about the disclosure of child sexual abuse and factors that may impact a person's decision to disclose abuse. The Commonwealth also recalled Dr. Block in rebuttal after the defendant's expert testified. We review Dr. Block's testimony in light of the principles of permissible expert testimony in this subject area and conclude that it was both relevant and proper in scope and content. See Commonwealth v. Federico, 425 Mass. 844, 847-848 (1997) ; Deloney, supra at 56.

Next, the defendant argues that, in closing argument, the prosecutor improperly asked the jury to "tell" the defendant they knew he committed the crimes of which he was convicted. However, in context, these statements were a response to trial counsel's argument that the victim lacked credibility and that the defendant denied the charges. Defense counsel argued that "[the defendant] didn't commit those acts, see? He got on that stand himself, an incredible deed in its own right. No fear. Go with the truth. Tell the truth. Always tell the truth," and that "I want you today to find this man not guilty because nobody deserves to be found not guilty more than that man. You will do the right thing, and I trust you to do the right thing. I have every confidence in [you]." The prosecutor argued that the witnesses were credible, and asked the jury to "tell him that you know that he raped" the victim and to "[t]ell him. Not because I want you to, not because [the victim] wants you to, because you know the truth." While the Commonwealth's response could have been better phrased, in context, we see no error. See Commonwealth v. Brewer, 472 Mass. 307, 315 (2015) (prosecutor may respond fairly to arguments made by defendant).

Lastly, the defendant argues that trial counsel was ineffective for failing to object to testimony that was inadmissible pursuant to a motion in limine. We review under the familiar two-part test for ineffective assistance, and evaluate whether trial counsel's behavior fell "measurably below that which might be expected of an ordinary fallible lawyer" and prejudiced the defendant. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Millien, 474 Mass. 417, 432-433 (2016) (second prong of ineffective assistance met if there is substantial risk of miscarriage of justice arising from counsel's failure to present "available ground of defense").

Prior to trial, the Commonwealth filed a motion in limine to introduce evidence that the defendant touched the victim's vagina over her clothing when they were in a car. The victim disclosed this incident to the Commonwealth during a trial preparation session shortly before the start of trial. The trial judge denied the motion as it would be unduly prejudicial to the defendant to introduce evidence that was disclosed days before trial. On direct examination, the victim referenced an incident when "he did it in the car." The prosecutor did not ask further questions about this on direct examination. Defense counsel did not object, but rather asked on cross-examination what occurred in the car and whether the victim reported it. The victim responded that she told the prosecutor while preparing for trial. The victim testified on redirect examination that the defendant "rap[ed]" her in the car.

We are unpersuaded that there was a substantial risk of a miscarriage of justice from trial counsel's failure to object and decision to inquire further. From the record, trial counsel's inquiry appears to be consistent with the strategy to challenge the victim's credibility. We cannot conclude that it was manifestly unreasonable to elicit that the victim had not previously disclosed the incident. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002) ("[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight"); Commonwealth v. Ortega, 441 Mass. 170, 175 (2004) (tactical decisions must be "manifestly unreasonable" in order to constitute ineffective assistance of counsel).

Judgments affirmed.

      See Miranda v. Arizona, 384 U.S. 436, 444-445 (1996).

      Bruzzese testified in the Commonwealth's case-in-chief, was recalled by the defendant, and testified as a rebuttal witness for the Commonwealth.

      The defendant did not object at trial to the elicitation of this testimony on the grounds he asserts on appeal. As such, our review is limited to the substantial risk of a miscarriage of justice standard. See Commonwealth v. Smith, 460 Mass. 385, 398 (2011).

      We also note that, as this is a direct appeal, we cannot assess on this record the extent to which the denial of the motion impacted the defendant's decision to testify.


text:
    COMMONWEALTH v. Ronald KEPLIN.
    16-P-1167
    Appeals Court of Massachusetts.
    Entered: April 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In this interlocutory appeal, the defendant, Ronald Keplin, claims that his motion to suppress should have been allowed because the search warrant and affidavit failed to specify with particularity the items to be seized, searched, and examined. In the alternative, the defendant claims that because the warrant allowed for an unrestricted exploratory search of cellular telephones (cell phones), his motion to suppress should have been allowed. We affirm.

Background. The defendant, along with another, was indicted for twenty-one crimes including human trafficking, conspiracy, prostitution, and firearm-related charges. The defendant is alleged to have operated numerous massage parlors, all of which were fronts for prostitution. It is alleged that the defendant solicited customers through advertisements on various Web sites. Several patrons of the massage parlors were questioned by law enforcement officers and admitted that they had paid money to engage in sexual activities. In connection with its investigation, State and Federal law enforcement officers applied for a warrant to search, among other places, the defendant's residence. The warrant also sought authority to seize any evidence on the defendant's person if he was present during the search. The affidavit filed with the application for a search warrant detailed the manner in which the defendant used cell phones to advertise and conduct prostitution-related activities. The affidavit described how cell phones are used in prostitution, human trafficking, and money laundering as well as how digital devices are searched. The affidavit sought the following: "[a]uthorization for any electronic communication devices, storage devices, or recording devices seized pursuant to this warrant to be forensically examined by the Office of the Attorney General-Computer Forensic Laboratory." Attached to the warrant application was an addendum with a more particularized list of items which investigators intended to search. The addendum included the following provision: "If this honorable court allows permission, the computers and other electronic media will be examined by the Massachusetts State Police Detective Unit at the Attorney General's Cyber Crime Laboratory." The warrant was authorized on May 10, 2013, and was executed on May 13, 2013. The defendant's cell phone was seized from him during the execution of the warrant. A forensic analysis of the cell phone showed that the defendant had communicated with others about human trafficking and prostitution.

The defendant filed a motion to suppress, which was denied after a nonevidentiary hearing. A judge of the Superior Court concluded that the defendant's claim that a warrantless search had taken place was without merit. She further concluded that the warrant provided that any seized computers or other electronic media be examined. Seven months thereafter, the defendant filed a motion for reconsideration. In his motion, the defendant repeated his claim that his cell phone had been searched without a warrant. He next argued that the warrant failed to identify with particularity that his cell phone would be seized and searched. Finally, he claimed that the warrant failed to circumscribe the discretion of the investigators who would search the cell phone. The defendant did not claim that the warrant was not supported by probable cause. A nonevidentiary hearing on the defendant's motion for reconsideration was held before the same judge. At the conclusion of the hearing, the judge gave the defendant leave to file a supplement to his motion, which he did. The judge denied the motion for "the reasons set out in the Commonwealth's Opposition Memorandum filed on or about December 2015."

Discussion. a. Standard of review. As the decision of the motion judge was based on documentary evidence rather than witness testimony, we review the facts and the application of the law to the facts de novo. See Commonwealth v. Santana, 477 Mass. 610, 616 (2017).

b. Particularity of the warrant. In order to protect against unreasonable searches and seizures, a guarantee of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, "[search] warrants ... [must] be accompanied with a special designation of the persons or objects of search, arrest, or seizure." Commonwealth v. Balicki, 436 Mass. 1, 7 (2002) (quotation omitted). This has become known as the particularity requirement. See Commonwealth v. Molina, 476 Mass. 388, 394 (2017). See also G. L. c. 276, § 2. The defendant claims that because "[t]he degree of specificity ... may necessarily vary according to the circumstances and the type of items involved," Commonwealth v. Freiberg, 405 Mass. 282, 298 (1989) (quotation omitted), law enforcement officers were compelled to identify his particular cell phone in the search warrant before it could be seized. Since they failed to do so, he contends the search was warrantless and thus unconstitutional. The Supreme Judicial Court rejected this same particularity argument in Molina, where the search warrant permitted the seizure of "all computing devices found in the [defendant's] apartment regardless to whom they belonged or where they may have been found." Commonwealth v. Molina, supra at 396. Moreover, in Commonwealth v. Perkins, 478 Mass. 97, 104-106 (2017), a defendant's challenge to the particularity of a search warrant that led to the seizure of nine cell phones was rejected where the police had probable cause to believe the defendant's cell phone was used to commit crimes although they did not know which of the nine belonged to the defendant. Here, the search warrant described the devices to be seized with as much particularity as the law enforcement officers were able to provide at that stage of their investigation. Indeed, a "warrant that describes items to be seized in broad and generic terms may be valid if the description is as specific as circumstances and nature of the activity under investigation permit." United States v. Robertson, 21 F.3d 1030, 1033 (10th Cir. 1994), quoting from United States v. Harris, 903 F.3d 770, 775 (10th Cir. 1990).

The affidavit in support of the warrant also set forth a nexus between the defendant's cell phone and the crimes alleged. See Commonwealth v. Keown, 478 Mass. 232, 238-239 (2017). It described, in detail, how human trafficking and prostitution enterprises operate and in particular, how the defendant used his cell phone, credit cards, motor vehicle, and the Internet in furtherance of these crimes. Contrast Commonwealth v. White, 475 Mass. 583, 590 (2016) (warrant stated general belief that cell phones were commonly used in crime under investigation and failed to develop probable cause that defendant actually used cell phone).

Even accepting as true the defendant's description of the warrant, the motion to suppress was properly denied. In Commonwealth v. Holley, 478 Mass. 508, 525 (2017), the Supreme Judicial Court recently described a warrant as "hardly a model of particularity," and noted that it "did not sufficiently limit the scope of the search." Nonetheless, the court held that the motion to suppress was properly denied as the record lacked evidence as to how the search was conducted and failed to demonstrate that the Commonwealth "capitalize[d] on the lack of particularity in the warrant." Ibid. For all of these reasons, the defendant's claim is without merit.

3. Search of the cell telephone. The defendant next contends that the warrant failed to circumscribe the discretion of law enforcement who searched his cell phone and that therefore it was an unconstitutional general search. The search of a cell phone "may be as extensive as reasonably required to locate the items described in the warrant based on probable cause." Commonwealth v. Dorelas, 473 Mass. 496, 502 (2016) (quotation omitted). The standard that governs the scope of the search is "whether that evidence might reasonably be found in the electronic files searched." Id. at 503 n.13. Here, the search warrant affidavit established probable cause to believe that the defendant used his cell phone as a way to advertise and communicate with customers of the prostitution enterprise, and that the defendant used the cell phone to conduct the financial aspects thereof. Law enforcement officers sought to seize particular types of electronically stored evidence of these activities. A nonexhaustive list of what they sought permission to seize included customer contact information, sales, money owed, sexual acts performed for money, and transactions concerning Internet advertising. In contrast to the defendant's claim that the search was too general, the warrant and affidavit limited the scope of the seizure. First, law enforcement could only search places in the cell phone where evidence related to the described criminal enterprise might reasonably be found. See ibid. Second, law enforcement could only seize evidence related to the crimes under investigation. See id. at 504-505. Moreover, the defendant fails to cite to anything in the record to support his suggestions that law enforcement exploited a deficient search warrant. See Commonwealth v. Woods, 419 Mass. 366, 371-372 (1995) (burden is on appellant to ensure adequate records exists for appellate review). This claim also fails.

Order denying motion to suppress affirmed.

      The Commonwealth contends that the defendant failed to preserve the issues presented by this appeal. It contends that the defendant raised the issues for the first time in an untimely motion for reconsideration, and thus the issues are waived. Passing on the question of waiver, as each party has fully briefed the issues, we exercise our discretion to reach the merits in this interlocutory appeal. We may affirm on any grounds evident from the record. See Commonwealth v. Va MengJoe, 40 Mass. App. Ct. 499, 503 n.7 (1996).


text:
    Michael BURNS & another v. DEFELICE CORPORATION & another.
    17-P-879
    Appeals Court of Massachusetts.
    Entered: April 6, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Robert Houser.

      DeFelice Incorporated.

   On November 3, 2010, the plaintiffs' residence was destroyed by a natural gas explosion. After an administrative hearing, the Department of Public Utilities (DPU) concluded that the defendants, while performing excavation work with mechanical equipment nearby, violated multiple provisions of the Massachusetts dig safe statute, G. L. c. 82, §§ 40 - 40E, resulting in damage to the gas line that serviced the plaintiffs' residence. See DeFelice Corp. v. Department of Pub. Util., 88 Mass. App. Ct. 544 (2015) (affirming DPU's decision). Subsequently, the plaintiffs filed suit in the Superior Court alleging that by negligently damaging the gas line during excavation, the defendants caused the explosion that destroyed the residence. Specifically, the plaintiffs claimed negligence, trespass, nuisance, and a violation of G. L. c. 93A, § 2 (93A claim). Ultimately, the case was tried and the jury returned a verdict for the defendants on the common-law claims. The judge later dismissed the 93A claim for failure to timely serve a presuit demand letter.

On appeal, the plaintiffs claim the judge erred by (1) failing to properly instruct the jury regarding the prior DPU proceeding and causation, (2) excluding the unredacted DPU decision from evidence, and (3) dismissing the 93A claim. For the reasons that follow, we affirm the dismissal of the 93A claim, but vacate the judgment on the jury verdict and remand for a new trial on the plaintiffs' common-law claims-negligence, trespass, and nuisance.

Background. The factual background, the dig safe regulatory scheme, and the DPU's decision are clearly set forth in DeFelice Corp., supra., and we need not repeat them here. It is sufficient to say, in summary, that the DPU investigated the explosion, including the roles of the defendants and NSTAR (the utility provider). Following an evidentiary hearing, at which the defendants appeared and were represented by counsel, the DPU concluded that the defendants violated the dig safe statute. As pertinent here, the DPU concluded that (1) the defendants failed to properly inform the dig safe call center of the planned excavation, G. L. c. 82, § 40A ; and (2) failed to take reasonable precautions to avoid damage to underground gas lines during excavation, G. L. c. 82, § 40C. These conclusions were based on subsidiary factual findings that (1) the defendants failed to sufficiently identify the area to be excavated by either telephone calls to the dig safe call center or markings on site, and (2) the defendants excavated with mechanical equipment despite visible markings indicating underground gas lines. See DeFelice Corp., supra at 549-551.

In this action, the plaintiffs sought summary judgment, arguing that the DPU decision conclusively established the defendants' negligence. The judge denied the motion, but ruled that the defendants were "collaterally estopped in this case from arguing that [they] did not violate the Dig Safe law." Following opening statements, the judge reiterated that "[a]ny issue that has been decided, either by the [DPU] or by this Court, is obviously law of the case." The next day, the judge again emphasized that the DPU decision "[e]stopped [the defendants] from arguing that they did not violate the Dig Safe laws."

The judge denied the plaintiffs' motion in limine to admit the entire DPU decision as an exhibit. However, she allowed the admission of a heavily redacted version, which included the conclusion that the defendants had violated the dig safe statute. The plaintiffs requested the following jury instruction regarding the import of the DPU decision:

"the DPU found that [the defendants were] negligent when [they] damaged the gas line that exploded and destroyed [p]laintiffs' home. Earlier in this case, the Court found that the DPU findings on [the defendants'] negligence could not be relitigated. Therefore, I instruct you that [the defendants have] already been found negligent in [their] damage to the gas line, and you need not further decide that issue."

The plaintiffs also requested an instruction that a "Dig Safe Laws [violation] is prima facie evidence that the damage was caused by the negligence of the person that committed the violation." See G. L. c. 82, § 40C. The judge denied both requests.

Discussion. 1. Jury instructions. "We review objections to jury instructions to determine if there was any error, and, if so, whether the error affected the substantial rights of the objecting party." Beverly v. Bass River Golf Mgmt., 92 Mass. App. Ct. 595, 603 (2018) (quotation omitted). We examine the instructions as a whole to determine whether they accurately reflect the applicable law. Ibid. Although the judge has "significant latitude" in fashioning the instructions, there is error where the jury are not instructed on an important issue raised by the trial evidence. Comeau v. Currier, 35 Mass. App. Ct. 109, 111-112 (1993).

We turn first to the plaintiffs' claim that the judge failed to properly instruct the jury regarding the legal effect of the prior DPU decision. The judge unequivocally ruled in her summary judgment decision that the defendants were "collaterally estopped in this case from arguing that [they] did not violate the Dig Safe law." She repeated during trial that her decision on collateral estoppel was the law of the case. Despite these admonitions, the defendants challenged the DPU investigation and decision throughout the trial and forcefully argued to the jury that the defendants had "complied fully with the obligations of law under Dig Safe."

In this context, where the jury heard that the DPU had previously concluded that the defendants violated the dig safe statute, and the defendants, contrary to the judge's earlier ruling, argued the opposite, it was important to give the jury clear guidance regarding the legal meaning of the DPU decision. Here, the instructions failed to do so. The judge did not instruct on the dig safe statute, the result of the DPU proceeding, or the concept of collateral estoppel. The judge explained only that "a statutory violation may be considered as some evidence of negligence, but it is not conclusive evidence that there was a breach of the duty of care." This generic instruction, although an accurate statement of law, was inadequate in this case.

Once the judge ruled that collateral estoppel applied in these circumstances, see Bellerman v. Fitchburg Gas & Elec.Light Co., 470 Mass. 43, 60-62 (2014) (collateral estoppel properly applied to factual findings of DPU in administrative hearing), the jury should have been instructed that the defendants had violated the dig safe statute as determined by the DPU. The jury should also have been instructed that the statutory violation was prima facie evidence of the defendants' negligence regarding damage to the gas line. G. L. c. 82, § 40C, inserted by St. 1998, c. 332 ("[D]amage to a pipe" without first giving proper notice of excavation is "prima facie evidence in any legal ... proceeding that such damage was caused by the [excavator's] negligence"). The failure to so instruct was error.

We next consider the potential impact of that error on the jury's deliberations. "An error in jury instructions is not grounds for setting aside a verdict unless the error was prejudicial-that is, unless the result might have differed absent the error." Blackstone v. Cashman, 448 Mass. 255, 270 (2007). Here, we agree with the plaintiffs that the defendants' failure to properly inform the dig safe call center of the planned excavation, and failure to take reasonable precautions to avoid damage to underground gas lines, matters previously decided by the DPU, were central issues in the case. The absence of instructions on these points fundamentally altered the scope of the jury's task, leaving them free to reconsider issues already settled as the law of the case. This error affected the substantial rights of the plaintiffs on their claims of negligence, trespass, and nuisance.

2. Admissibility of the DPU decision. The plaintiffs moved in limine to admit the entire thirty-eight page DPU decision as an exhibit at trial along with a copy of this court's decision affirming the DPU in DeFelice Corp., 88 Mass. App. Ct. 544. The judge denied the motion, in part, allowing admission of a redacted version of the DPU decision consistent with the holding in Resendes v. Boston Edison Co., 38 Mass. App. Ct. 344, 353-355 (1995). The plaintiffs claim this limitation was error. We review for abuse of discretion. See Dahms v. Cognex Corp., 455 Mass. 190, 198 (2009) ("We do not disturb a judge's decision to admit evidence absent an abuse of discretion" [quotation omitted] ).

In Resendes, we affirmed the admission of a redacted DPU decision at trial. The redaction was such that the DPU decision contained only primary facts as opposed to evaluation and opinion. Resendes, supra. We are not persuaded by the plaintiffs' argument that this case is distinguishable. The judge acted within her discretion when she allowed the admission of the redacted DPU decision. To the extent that the plaintiffs challenge the scope of the redaction, the objection has been waived. Once the judge ruled that a redacted DPU decision would be admitted, the parties agreed on the scope of the redaction.

Finally, the plaintiffs offer no authority for the proposition that this court's decision affirming the DPU should have been admitted as an exhibit at trial. The judge did not abuse her discretion in denying the plaintiffs' motion in limine on that basis.

3. 93A claim. The complaint alleged that the defendants' conduct violated G. L. c. 93A because it was unfair, deceptive, and failed to comply with a public safety statute. The judge appropriately reserved the 93A claim for her own judgment rather than submit it to the jury. See Klairmont v. GainsboroRestaurant, Inc., 465 Mass. 165, 168-169 (2013). In a written decision, she dismissed the 93A claim for lack of jurisdiction, concluding that the plaintiffs failed to meet the statutory prerequisite for filing such a claim.

General Laws c. 93A, § 9, "requires a plaintiff to make a written demand letter asking for reasonable relief thirty days prior to filing a lawsuit." Lingis v. Waisbren, 75 Mass. App. Ct. 464, 468 (2009) (quotation omitted). Here, it is undisputed that the plaintiffs sent their demand letter and filed the complaint the same day. We discern no error in the judgment of dismissal, where the plaintiffs failed to meet their burden of establishing compliance with the statute. See id. at 468. See also York v. Sullivan, 369 Mass. 157, 164 (1975) ("[T]he thirty-day requirement is a prerequisite" to suit).

The judgment of dismissal on the G. L. c. 93A claim is affirmed.

The judgment on the jury verdict is vacated and the matter is remanded for further proceedings consistent with this memorandum and order.

      NSTAR, as a utility provider, has a statutory obligation to mark gas lines only when an area has been properly identified for excavation. See G. L. c. 82, § 40B.

      We are not persuaded by the defendants' argument that the plaintiffs waived their objections to the jury instructions by failing to object after the instructions were given. While a better practice would have been for the plaintiffs' counsel to renew their objections with specificity at the end of the judge's charge, we think the objections were adequately preserved. The plaintiffs clearly stated their objections and the grounds therefore at the charge conference, where the judge stated, "I will note your objection to those decisions for the record." See Mass.R.Civ.P. 51(b), 365 Mass. 816 (1974); Rotkiewicz v. Sadowsky, 431 Mass. 748, 750-751 (2000). Thus, it is clear that the judge was on notice of the objection and the primary purpose of the rule was achieved.

      We do not suggest that the judge should have given the plaintiffs' requested instruction on this point. That proposed instruction merged the concepts of negligence and the dig safe violation in a way that may have confused the jury. However, "[e]ven though the request was not strictly accurate ... , it was sufficient to direct the consideration of the judge to an important principle of law not adverted to in the charge, an omission which well may have resulted in harm to the [plaintiffs]." Petras v. Storm, 18 Mass. App. Ct. 330, 335-336 (1984), quoting from Bergeron v. Forest, 233 Mass. 392, 402 (1919).

      Because we conclude that it was prejudicial error not to instruct the jury regarding the DPU decision and the dig safe statute, we need not address the claimed error in the judge's instruction on causation. We note, however, that in cases with evidence of multiple potential causes, the causation instruction using the term "substantial contributing factor" should be given. See Matsuyama v. Birnbaum, 452 Mass. 1, 30 (2008).

      The defendants' request for "fees and costs associated with this appeal" is denied.


text:
    COMMONWEALTH v. Meshach LITTLE.
    16-P-1607
    Appeals Court of Massachusetts.
    Entered: April 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the order denying his motion to reconsider the denial of his motion to correct illegal sentence. We affirm.

In May 1997, the defendant was convicted of murder in the first degree, G. L. c. 265, § 1, and unlawfully carrying a firearm without a license, G. L. c. 269, § 10(a ) (Suffolk charges). He was sentenced to life in prison for the murder conviction and a concurrent four to five year sentence in State prison for the firearm conviction.

Approximately six months later, on December 4, 1997, the defendant pleaded guilty to mayhem, G. L. c. 265, § 14, assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b ), and assault and battery on a guard or correction officer, G. L. c. 127, § 38B (Plymouth charges). The Plymouth charges were based on conduct completely unrelated to the bases for the Suffolk charges. He was sentenced to concurrent sentences of ten to twelve years for the mayhem conviction, and eight to ten years for the two assault and battery convictions-all of which were to run currently with the sentences the defendant was then serving on the Suffolk charges.

At the time the defendant tendered his plea on the Plymouth charges, he had appealed from his convictions on the Suffolk charges. That appeal ultimately resulted in the Supreme Judicial Court affirming the firearm conviction, but reversing the murder conviction and ordering a new trial. Commonwealth v. Little, 431 Mass. 782, 791 (2000). After a retrial in December, 2003, a jury found the defendant guilty of voluntary manslaughter. He was sentenced in February, 2004, to nineteen years and 364 days to twenty years to be served from and after the sentence he was serving on the Plymouth charges.

The defendant appealed this sentence to the Appellate Division of the Superior Court, where it was affirmed. He also appealed the manslaughter conviction, which a panel of this court affirmed in an unpublished memorandum and order pursuant to our rule 1:28. Commonwealth v. Little, 68 Mass. App. Ct. 1104 (2007). In that appeal, the defendant argued-among other things-that "the sentence [w]as vindictive; a punishment for appealing, and prevailing on, the murder conviction; effectively a sentence for murder; multiple punishments for the same offense in violation of the defendant's right against double jeopardy; and a violation of the provisions of G. L. c. 279, § 33A, regarding credit for time served." We rejected these arguments, and affirmed the defendant's manslaughter conviction.

Nine years later, the defendant filed a motion to correct illegal sentence pursuant to Mass.R.Crim.P. 30(a), 435 Mass. 1501 (2001). In essence, he repeated the argument he made in his direct appeal that the manslaughter sentence violated double jeopardy because it was imposed to run from and after the Plymouth charges, whereas the original murder sentence was to run concurrently. The motion was denied, as was his subsequent motion to reconsider. It is this latter order that is the subject of this appeal.

On appeal, the defendant again argues that the manslaughter sentence violates double jeopardy because the sentence runs from and after (rather than concurrent with) the sentence on the Plymouth charges. This argument was raised, considered, and decided in his direct appeal from the manslaughter conviction, and direct estoppel bars him from relitigating it. See Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005) ; Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 699 (2015). Although the defendant is correct that there is no deadline by which a motion to correct illegal sentence under rule 30(a) must be filed, it does not follow that he is allowed to file such motions repetitively, exempt from the principle of direct estoppel.

Even were we to overlook the fact that the defendant is estopped from raising the same argument again, his appeal would nonetheless fail for the same reasons given in the 2007 memorandum and order. Specifically, as stated then, the defendant's double jeopardy argument fails because "the consecutive sentences are not multiple punishments for the same offense. See Commonwealth v. Diaz, 383 Mass. 73, 84-85 (1981)." The Plymouth and Suffolk charges rested on completely different conduct, occurring on separate dates and involving different victims. There was simply no relationship between the crimes.

For this reason, the defendant's reliance on Commonwealth v. Bruzzese, 437 Mass. 606, 613 (2002), also fails. Unlike Bruzzese, the sentences here were not imposed as part of a single sentencing scheme. The sentences were instead imposed by different judges, on different dates, after separate trials for different crimes.

For these reasons, the order denying the defendant's motion to reconsider is affirmed.

So ordered.

Affirmed.

      As a result of the above dispositions, the defendant was to serve simultaneously (a) life for murder, (b) four to five years for the firearm conviction, (c) ten to twelve years for mayhem, (d) eight to ten years for assault and battery by means of a dangerous weapon, and (e) eight to ten years for assault and battery on a guard or correction officer.

      The defendant contends that direct estoppel does not apply because he did not present the Plymouth plea colloquy transcript in the record on his appeal from the manslaughter conviction. Whatever the reason for that omission, there is no doubt that the transcript of the colloquy (which occurred in December, 1997) was available long before the appeal from his manslaughter conviction. We therefore are unpersuaded that the omission relieves the defendant from the operation of direct estoppel.


text:
    Luc SAINT-FORT v. Marie Lydie SANON-DESIR & others.
    17-P-710
    Appeals Court of Massachusetts.
    Entered: April 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Bismack Desir and Luc Desir. This appeal relates solely to the order granting defendant Marie Lydie Sanon-Desir's motion for specific performance.

   The plaintiff, Luc Saint-Fort, appeals from an order of the Housing Court allowing defendant Marie Lydie Sanon-Desir's motion for specific performance. We affirm.

Background. The facts, which are undisputed and are supplemented where necessary with uncontroverted evidence drawn from the record, are as follows. The plaintiff, owner of record of 681 Plain Street in Brockton (premises), obtained a mortgage on the premises on May 23, 2007, in his name alone because the defendant did not have good credit. The plaintiff has never resided at the premises nor been responsible for maintenance or improvements on the premises. The defendant has resided in the premises since the year of purchase, 2007. There was never a rental agreement between the parties.

On November 17, 2015, the plaintiff filed a summary process summons and complaint in the Southeast Division of the Housing Court Department against the defendant and others. After the defendant filed a timely answer and counterclaims, including an allegation that the "[p]laintiff holds the premises as constructive trustee for the benefit of [the defendant]," the parties, through counsel, engaged in settlement negotiations.

Between December 9 and 14, 2015, counsel for both parties exchanged the following electronic mail messages (e-mails). On December 9, 2015, the plaintiff's attorney, Jack P. Milgram, sent an e-mail to the defendant's attorney, Stephanie M. Herron Rice, asking: "Have you spoken to your client about paying off the mortgage? Is this a realistic option?" That same day, Attorney Herron Rice replied, in pertinent part:

"Yes, my client is currently in talks with Boston Community Capital. I do believe this is a realistic option as my client states she has been previously approved for a loan by BCC .... Is this an option that your client is open to? ... If I get confirmation from my client that she is working with BCC and she can provide pre-approval paperwork would you be opposed to continuing the [summary process] case so the deal has a chance to go forward?"

On December 14, 2015, Attorney Herron Rice e-mailed Attorney Milgram, stating, in pertinent part:

"Just writing to update you on this case. The client should have something in writing from BCC by tomorrow afternoon as she's meeting with them at 2pm. I'm assuming given the circumstances that your client is willing to sell this house for the outstanding loan amount (around $154k), is that the case? Please confirm."

On the same date Attorney Milgram replied: "Yes as to the purchase price. How much time does she need to get the loan?"

On January 20, 2016, the plaintiff and the defendant filed a summary process agreement for judgment (2016 agreement), which a Housing Court judge approved (the first judge). The 2016 agreement provided that the "[d]efendant will continue in her efforts to obtain a loan in order to buy the Premesis [sic ] from the [p]laintiff, should this occur prior to the vacate date [May 31, 2016], this case will be dismissed and no further use and occupancy will be owed by the Defendant under this Agreement."

On or about March 23, 2016, Attorney Milgram filed a motion in the Housing Court to withdraw as plaintiff's counsel, stating that "a difference of opinion has developed between [himself] and the [p]laintiff ... as to what his legal obligations are pursuant to [the 2016 agreement]." The motion was allowed by a second judge. On March 28, 2016, this second judge then ordered, as requested by the defendant, the plaintiff to provide the defendant with a payoff statement for purposes of obtaining a loan, finding that the plaintiff had "failed to act in good faith" by obstructing the defendant's efforts to obtain the loan contemplated in the 2016 agreement.

On May 13, 2016, the defendant's new attorney sent a draft purchase and sale agreement to the plaintiff's new attorney, Donald Bertrand, via e-mail. Attorney Bertrand responded via e-mail stating that his "client is willing to sell the property to [the defendant]. He is not willing to sell this property for $160,000." After this exchange, the defendant filed on May 20, 2016, a motion seeking specific performance or, in the alternative, dismissal of the summary process action. On August 26, 2016, the first judge granted the defendant's motion for specific performance, reasoning that even if the parties' December e-mails and 2016 agreement did not satisfy the Statute of Frauds, the defendant detrimentally relied on the e-mail exchange in executing the 2016 agreement and giving up her defenses. The plaintiff challenges this order for specific performance.

Discussion. 1. Standard of review. Based on the pleadings, motions, affidavits, and answers to interrogatories from both parties, the first judge decided the case on certain undisputed facts. See Amerada Hess Corp. v. Garabedian, 416 Mass. 149, 152 (1993). As the first judge considered matters outside the pleadings, we treat the granted motion as one for summary judgment. See White v. Peabody Constr. Co., 386 Mass. 121, 126 (1982). "We review a grant of summary judgment de novo to determine 'whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.' " Juliano v. Simpson, 461 Mass. 527, 529-530 (2012), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

2. Satisfaction of the Statute of Frauds. The Statute of Frauds, G. L. c. 259, § 1, provides that "[n]o action shall be brought ... [u]pon a contract for the sale of lands ... [u]nless the promise, contract or agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized." Whether a writing satisfies the Statute of Frauds is a question of law. Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703, 709-710 (1992). "An enforceable agreement requires (1) terms sufficiently complete and definite, and (2) a present intent of the parties at the time of formation to be bound by those terms." Tareus Group Intl., Inc. v. Sherman, 76 Mass. App. Ct. 421, 428 (2010). "It is a court's function ... to determine what provisions are essential to an agreement sought to be enforced and whether an omitted provision can be supplied by implication." Simon v. Simon, 35 Mass. App. Ct. 705, 709 (1994). "A memorandum to satisfy the [S]tatute of [F]rauds need not be a formal document intended to serve as a memorandum of the contract; but it must contain the terms of the contract agreed upon-the parties, the locus (if an interest in real estate is dealt with), in some circumstances the price, ... and it must be signed by the party to be charged or by [someone] authorized to sign on his behalf." Des Brisay v. Foss, 264 Mass. 102, 109 (1928). E-mails may be writings that satisfy the Statute of Frauds and create a binding contract. See FecteauBenefits Group, Inc. v. Knox, 72 Mass. App. Ct. 204, 212-213 (2008). Multiple documents pertinent to a transaction may be read together to determine whether the Statute of Frauds has been satisfied. See Tzitzon Realty Co. v. Mustonen, 352 Mass. 648, 653 (1967). The writings may, but need not, incorporate each other by reference. Ibid. Parol evidence may be introduced to show that "two or more papers were so connected in the minds of the parties that they adopted all of them as indicating their purpose." Ibid. Massachusetts courts recognize the assumed authority of attorneys to enter into binding agreements on behalf of their clients. See Medford v. Corbett, 302 Mass. 573, 574-575 (1939).

The December 9 through 14, 2015, e-mails, taken together with the subsequent 2016 agreement, constitute a writing sufficient to satisfy the Statute of Frauds. The e-mails, electronically signed by counsel for both parties, were sent as part of settlement negotiations between the parties through their respective counsel. The settlement e-mails document a clear agreement "as to the purchase price" which would be set in the amount of the outstanding mortgage "around $154k" and document the plaintiff's intent that the defendant continue with "pre-approval" in pursuit of financing for that amount through "Boston Community Capital." On January 20, 2016, the parties entered into the 2016 agreement which obligated the defendant to "continue in her efforts to obtain a loan in order to buy the Premesis [sic ] ..." (emphasis added). The e-mails, sent in the context of litigation settlement, sufficiently identify the premises. The 2016 agreement established the deadline for the purchase: the 2016 agreement set May 31, 2016, as the vacate date and provided that the defendant had until such date to obtain financing necessary to purchase the premises. If the defendant was unable to meet the financing deadline, the 2016 agreement provided that the plaintiff could levy on the execution as of June 1, 2016. Therefore, based on the uncontested material facts, the writings were sufficient to satisfy the Statute of Frauds.

3. Specific performance. We next turn to the plaintiff's contention that the first judge's grant of specific performance was unwarranted. A judge has a reasonable range of discretion in determining whether to grant or to deny specific performance. See Atlantic Richfield Co. v. Couture, 4 Mass. App. Ct. 230, 234 (1976). Accordingly, "we examine the judge's decision from the viewpoint of whether there has been an abuse of discretion." Quinn v. Mar-Lees Seafood, LLC, 69 Mass. App. Ct. 688, 705 (2007). Specific performance of contracts to convey land is usually granted unless there is fraud or overreaching by the seeking party. See Allen v. Rakes, 359 Mass. 1, 6 (1971). "It is well-settled law in this Commonwealth that real property is unique and that money damages will often be inadequate to redress a deprivation of an interest in land." Greenfield Country Estates Tenants Assn., Inc. v. Deep, 423 Mass. 81, 88 (1996). "Specific performance of real estate contracts is appropriate 'in the absence of significant equitable reasons for refusing such relief.' " Costello v. Pet Inc., 17 Mass. App. Ct. 382, 387 (1984), quoting from Raynor v. Russell, 353 Mass. 366, 367-368 (1967). We perceive no abuse of discretion in allowing the order for specific performance.

Order entered August 26, 2016, allowing specific performance, affirmed.

      The motion is dated March 21, 2016, whereas the certificate of service is dated March 22, 2016, and the motion was docketed March 23, 2016.

      Although the plaintiff demanded an evidentiary hearing, he did not sufficiently identify any genuine issue of material fact.

      As we conclude that the 2016 agreement and the December, 2015, e-mails, taken together, satisfy the Statute of Frauds, we need not reach the detrimental reliance argument.

      To the extent that the plaintiff challenges the Housing Court's jurisdiction and the judge's authority to order specific performance in this matter, we consider any such argument waived as he has not briefed this issue sufficiently. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Additionally, "we observe that the Chief Justice of the Trial Court by statute possesses 'the power to assign a justice appointed to any department of the trial court to sit in any other department of the court, for such period or periods of time as [she] deems will best promote the speedy dispatch of judicial business.' G. L. c. 211B, § 9(xi), as appearing in St. 2011, c. 93, § 52. See St. Joseph's Polish Natl. Catholic Church v. Lawn Care Assocs., 414 Mass. 1003, 1004 (1993) (approving use of interdepartmental assignment to cure jurisdictional defect nunc pro tunc)." Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 87 Mass. App. Ct. 871, 873 n.3 (2015).


text:
    E.R. v. W.H.
    17-P-875
    Appeals Court of Massachusetts.
    Entered: April 6, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, W.H., appeals from a harassment prevention order obtained against him by the plaintiff, E.R., pursuant to G. L. c. 258E. The defendant's principal claim is that the evidence against him was insufficient. We conclude that the judge could have found by a preponderance of the evidence that the defendant engaged in at least three separate acts that were intended to, and did, cause the plaintiff fear, intimidation, abuse, or damage to property. See G. L. c. 258E, § 1. Accordingly, we affirm.

Background. The parties resided in adjacent units in a condominium complex. The defendant lived with his wife, and the plaintiff lived with her minor son. Over time, their neighborly relationship deteriorated. In April, 2017, the tension between the parties came to a head when the plaintiff filed a complaint under G. L. c. 258E for protection from harassment by the defendant. The complaint alleged that the defendant (1) drove his vehicle over the plaintiff's private landscaping repeatedly; (2) stalked her son by videotaping him walking to the bus stop and then posting the footage on the Internet; (3) made profane gestures at her through her exterior surveillance camera and, in one instance, gestured with his hand as if it were a firearm; and (4) took packages left for her by an Amazon delivery person.

The judge held a two-day evidentiary hearing on the complaint. She heard testimony from both parties and the defendant's wife, who had filed her own complaint for protection from harassment by the plaintiff. The parties were represented by counsel and each witness was subject to direct and cross-examination. In addition to the testimony, the judge considered physical evidence including videotapes, photographs, and Facebook posts. At the close of the hearing the judge allowed the plaintiff's request for an order protecting her from harassment by the defendant. Specifically, the defendant was ordered not to abuse the plaintiff, to stay fifty yards away from her, and to stay away from her workplace. Mindful that, as neighbors, the parties' paths might inadvertently cross, the judge ordered "[the defendant] to have no intentional contact with [the plaintiff]." The order entered on May 4, 2017, and expires on May 3, 2018.

Discussion. We review a civil harassment prevention order to determine:

"whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant had committed '[three] or more acts of willful and malicious conduct aimed at a specific person committed with intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property.' "

Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016), quoting from Seney v. Morhy, 467 Mass. 58, 60 (2014). "The plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended, defined by G. L. c. 258E, § 1, as being 'characterized by cruelty, hostility or revenge.' " A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015).

Because the judge did not make specific findings, we examine the record for support for her rulings. See V.J. v. N.J., 91 Mass. App. Ct. 22, 25 (2017). There was evidence from which the judge could have found that, on two occasions, the defendant harassed the plaintiff by targeting her property. First, the plaintiff testified that the defendant repeatedly drove onto an area of the property that she was permitted to landscape and decorate. Second, she testified that the defendant took packages left by an Amazon delivery person that were addressed and intended to be delivered to her. During his testimony, the defendant did not deny driving his car onto the island between his and the plaintiff's driveways, or taking packages addressed to the plaintiff into his house without her authorization. He claimed he had driven onto the island only after sliding on ice, and had taken the plaintiff's packages only because they were left on his property and his wife told him to do so.

Put another way, the defendant claimed that in each instance he lacked the malicious intent to harass. The judge was in the best position to weigh the evidence of the defendant's intent, and we defer to her judgment regarding the credibility of the witnesses. See A.T. v. C.R., supra at 540. Examining the record as a whole, we conclude that the judge could have reasonably inferred from the plaintiff's testimony that these were acts of harassment intended to damage the plaintiff's property or intimidate her, motivated by the defendant's hostility toward the plaintiff.

While the defendant correctly asserts that the act of raising his middle finger in the direction of the plaintiff's security surveillance camera could not constitute a harassing act, see O'Brien v. Borowski, 461 Mass. 415, 428-429 (2012) (raising middle finger as insult is form of expression protected by First Amendment to United States Constitution), the judge could have considered evidence that the defendant gestured with his hand as if firing a handgun at the surveillance camera as a "true threat" maliciously intended to harass the plaintiff. See id. at 423-424. In any event, the repeated profane gestures were evidence of the general hostility between the parties, and the judge could properly consider them as relevant to the defendant's intent on the other acts of harassment.

The defendant further argues that his surreptitious videotaping of the plaintiff's son, which he did not dispute, did not target the plaintiff and, therefore, could not count as an act of harassment against her. While the argument has some superficial appeal, we think the judge could reasonably infer from the longstanding hostile relationship between the defendant and the plaintiff, and from evidence that the defendant had posted the video on the Internet, that by this conduct the defendant intended to harass and intimidate the plaintiff, not just her son. The judge was entitled to discredit the defendant's explanation that he posted the videotape on the internet because "[he] wanted at least the world to see that [he was] not crazy" when he complained about the son making loud noises as he left his residence. Similarly, the judge was entitled to credit the plaintiff's testimony that she was fearful of the defendant based on the "escalating nature of his conduct."

The defendant's argument that the judge failed to consider contradictory evidence presented by the defendant is unavailing. The judge, as fact finder, had the responsibility to evaluate the witnesses' testimony and weigh the conflicting evidence. The fact that she rejected the defendant's version of the events does not mean that she failed to consider it. Simply put, after careful review of the record, we conclude that the judge could have found by a preponderance of the evidence that the defendant engaged in at least three separate acts that were intended to, and did, cause the plaintiff fear, intimidation, abuse, or damage to property.

Harassment prevention order affirmed.

      The plaintiff did not submit a brief in this appeal.

      The request for a harassment prevention order filed by the defendant's wife against the plaintiff was heard at the same time and denied.


text:
    C.R.P. v. D.F.
    17-P-939
    Appeals Court of Massachusetts.
    Entered: April 6, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from an abuse prevention order dated June 5, 2017, entered pursuant to G. L. c. 209A. He argues that the evidence was insufficient to permit the judge to find that the plaintiff was reasonably in fear of imminent bodily harm. We affirm.

On June 3, 2017, the plaintiff sought an abuse protection order pursuant to G. L. c. 209A on behalf of her minor son. On June 5, she sought a similar order on her own behalf. Both applications were supported by the plaintiff's affidavit dated June 2, 2017, and by testimony elicited during an evidentiary hearing on June 5. Together, those materials permitted the judge to find the following. The parties, along with the plaintiff's children had lived together since September of 2014 in the defendant's home. Over time, the defendant had become increasingly verbally abusive towards the children by calling them useless and worthless, and swearing at them. The plaintiff stated that the relationship with the defendant had been "very rough." At one point during a fight with the plaintiff, the defendant had said that her dog would be "gone" one day when she returned home from work.

Several months before the applications, when she told the defendant that she "was looking for a place, he said, 'When you move out, you'd better keep an eye out over your shoulder 'cause you'll never know where I am.' " She had since then "been quietly looking for alternative housing" and was at the time of the applications and hearing looking to move out.

A few months before the applications, in February of 2017, her son had been admitted to a hospital for observation and placed on "suicide watch" followed by two weeks of psychiatric outpatient care. A few days before the application, the plaintiff had been contacted by the son's school and told that he was again having suicidal thoughts. When the son arrived home, the defendant told the son to kill himself, and taunted him by saying "he [the son] wouldn't do it because he was a pussy and he had no balls." When the plaintiff arrived home, the defendant acted as though nothing had happened, and then (when confronted) said that "it needed to be said and the truth hurts."

The judge entered two one-year abuse protection orders (one for the plaintiff and one for the son), and suggested that the plaintiff find a place to live within thirty days. He also told the defendant that once the plaintiff left, he (the judge) would modify the order so as to permit the defendant to return to the home. As anticipated, the order was subsequently modified on August 4, 2017, to, among other things, permit the defendant to return to the residence as of August 14, 2017.

"We review the issuance of an order pursuant to G. L. c. 209A for an abuse of discretion or other error of law." E.C.O. v. Compton, 464 Mass. 558, 561-562 (2013). A judge abuses his discretion where 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." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). We discern no abuse of discretion here.

Looking at the totality of the circumstances, Iamele v. Asselin, 444 Mass. 734, 741 (2005), the judge did not abuse his discretion in finding that the plaintiff, as she stated, was in imminent fear of bodily harm, and that such fear was objectively reasonable. G. L. c. 209A, § 1(b ), as appearing in St. 1990, c. 403, § 2 (abuse defined as "placing another in fear of imminent serious physical harm"). The relationship between the parties was "very rough," the defendant had a history of escalating verbal abuse towards the younger members of the household, had threatened the disappearance of the plaintiff's dog, and had attempted to amplify and actuate the psychologically vulnerable son's suicidal ideation. In addition, the defendant had made explicit that the plaintiff would need to keep an eye out over her shoulder (a statement the judge could reasonably construe as a threat of physical harm) should she move out-which the plaintiff testified she was in the process of attempting. It is true that the threat had been conveyed several months earlier, but its imminence was satisfied by the fact that the plaintiff was currently in the process of trying to accomplish the condition upon which the threat was based.

Order dated June 5, 2017, affirmed.

      From the judge's reference to two affidavits at the beginning of the evidentiary hearing, we can infer that the applications were also supported by a second affidavit that is not included in the appellate record.

      The defendant appeals only the order that relates to the plaintiff.

      The defendant owned the home and ran his business out of it.