text:
    COMMONWEALTH v. Devone SUBER.
    15-P-1631
    Appeals Court of Massachusetts.
    Entered: February 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant, Devone Suber, was convicted of unlawful possession of ammunition in violation of G. L. c. 269, § 10(h ). In a subsequent jury-waived trial, the defendant was found to be an armed career criminal, level three, pursuant to the Massachusetts Armed Career Criminals Act (ACCA). On appeal, he contends that reversal is warranted because (1) his pretrial motion to suppress evidence was erroneously denied; and (2) the trial judge violated his right to a fair trial by improperly advocating for the prosecution. He also argues that the armed career criminal level three determination was invalid under both the "residual" and "force" clauses of the ACCA. We affirm.

Background. Prior to trial, the defendant moved to suppress the ammunition found on his person by the police. We first summarize the facts as found by the motion judge in his comprehensive memorandum and order denying the motion.

On the night of May 3, 2013, a man was shot and killed at an apartment within the Alice Heywood Taylor housing project in the Mission Hill neighborhood of Boston. Police Officer Shannon O'Donnell arrived on the scene within a minute of the first radio call, which went out at 12:41 A.M. Upon entering the apartment, she observed a man lying on his back, bleeding from an apparent gunshot wound. Although he was receiving cardiopulmonary resuscitation, he exhibited no pulse or signs of respiration. A witness told O'Donnell that she had seen the shooter fire several rounds from a long handgun, and described him as a "black Hispanic male" who was about five feet, ten inches tall, around 180 pounds, and wearing a black sweatshirt.

Officers Steven Dodd and Andrew Hunter arrived at the apartment within three minutes of the first radio call. While on the scene, they heard the shooter's physical description as provided to Officer O'Donnell, and were told that, last observed, he was wearing a "dark hooded sweatshirt" and carrying "a long black handgun." Thereafter, they departed to search for potential suspects. Dodd and Hunter were dressed in plain clothes, and patrolled in an unmarked but readily identifiable Crown Victoria police cruiser. They were aware of many prior incidents of violent crime, including firearms offenses, reported in and around the Taylor housing project. Approximately nine to ten minutes after the initial call, the officers turned onto Ruggles Street, where they saw the defendant emerge from a path leaving the Taylor housing project. At that time, the defendant was approximately one-eighth of a mile from the apartment, and was the first person the officers had seen since departing the crime scene in their cruiser.

The defendant caught the officers' attention because he was walking quickly and generally fit the witness's description of the shooter. They noted that he was a black man, wearing a dark jacket or sweatshirt, with a height and build in the correct range. The defendant crossed the street, and began walking toward them on the sidewalk. Without activating the lights or siren, Officer Dodd pulled the cruiser to the left side of the street, facing the wrong way, and stopped a short distance in front of the defendant. As he did so, the defendant slowed and placed his hands in his jacket pockets. The officers exited the cruiser. Officer Dodd stood on the sidewalk about twenty feet from the defendant, and Officer Hunter walked toward him on the street. They identified themselves as police officers, and Officer Dodd directed the defendant to show his hands. When he did not immediately cooperate, Officer Hunter repeated the instruction, saying something like, "Let me see your hands." Although the defendant seemed nervous and was breathing heavily, he complied. Officer Dodd then asked whether he had any weapons, and he stated, "I might have something. But it's not mine. I found it in Mattapan."

At that point, Officer Hunter pat frisked the defendant and discovered a box of bullets. Upon learning that he had neither a license to carry nor a firearm identification card, the officers placed him under arrest. He was convicted of the above listed charges, and this appeal ensued.

Discussion. 1. Motion to suppress. In reviewing a judge's ruling on a motion to suppress, "we accept the judge's findings of fact and will not disturb them absent clear error." Commonwealth v. Watson, 455 Mass. 246, 250 (2009). However, we "conduct an independent review of the judge's ultimate findings and conclusions of law." Commonwealth v. Washington, 449 Mass. 476, 480 (2007). The defendant does not challenge the findings of fact, and we discern no error therein. Accepting those facts, we conclude that the motion was properly denied.

The motion was denied on the grounds that (1) the defendant was not constitutionally seized until the patfrisk; and (2) at that time, the officers had reasonable suspicion to conduct the search. The defendant argues that the judge erred on both fronts, and that the bullets should have been suppressed as the fruit of the officers' unlawful actions. Specifically, he urges that, under the totality of the circumstances, he was seized when the officers inquired whether he had any weapons; and that, at that moment, they lacked the reasonable suspicion necessary to conduct a lawful Terry stop. See Terry v. Ohio, 392 U.S. 1, 20 (1968). We disagree. Even assuming that the defendant was seized at the moment he suggests, the facts then known to the officers, taken together, justified the stop. See Commonwealth v. McKoy, 83 Mass. App. Ct. 309, 313 (2013).

"[A]n investigatory stop is constitutionally justified if it is conducted on reasonable suspicion that the person seized has committed, is committing, or is about to commit a crime.... That suspicion must be grounded in specific, articulable facts and reasonable inferences [drawn] therefrom rather than on a hunch." Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007) (quotation omitted). Under this "objective standard," we bear in mind that "a combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief." Commonwealth v. Meneus, 476 Mass. 231, 235-236 (2017) (quotation omitted).

Here, a host of factors established a reasonable belief that the defendant had been involved in the shooting even before Officer Dodd's weapons inquiry. First, the defendant was spotted in close "geographical and temporal proximity" to the crime, id. at 240, having encountered the officers about ten minutes after the shooting, only one-eighth of a mile from the apartment. See Commonwealth v. Barros, 425 Mass. 572, 584 (1997) ; Commonwealth v. Depina, 456 Mass. 238, 246 (2010). Second, he generally fit the witness's detailed description of the suspect both in terms of his physical attributes and his clothing. Contrast Commonwealth v. Cheek, 413 Mass. 492, 496 (1992) (no reasonable suspicion where officers knew suspect's race but lacked other distinguishing characteristics such as height and weight). Third, his behavior was suspicious in that he appeared nervous, was breathing heavily, and initially refused to remove his hands from his pockets. See DePeiza, 449 Mass. at 371-372 ; Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 373-374 (2010). Lastly, the interaction occurred in a high crime area, see DePeiza, supra at 372-373, in the immediate aftermath of a shooting. See Depina, supra at 247 ("The gravity of the crime and the present danger of the circumstances may be considered in the reasonable suspicion calculus"). These facts were sufficient to create an "individualized suspicion," Commonwealth v. Warren, 475 Mass. 530, 534 (2016), that the defendant was the perpetrator of the shooting, and justified the officers' investigatory stop.

2. Right to a fair trial. Prior to trial, the Commonwealth notified the defendant that it intended to elicit an opinion from its ballistics expert, Detective Camper, about whether the bullets found on the defendant's person constituted ammunition within the meaning of G. L. c. 269, § 10(h ). At trial, Detective Camper and Deputy Superintendent John Brown, both of the Boston police department, testified to the composition of ammunition generally, and Detective Camper described the ammunition recovered from the defendant in the present case. Detective Camper did not, however, offer an explicit opinion on direct examination that the cartridges recovered from the defendant qualified as ammunition. Following cross-examination, the judge mentioned this oversight to the parties at sidebar. The next morning, the Commonwealth was permitted to elicit Detective Camper's opinion on redirect examination over the defendant's objection. The defendant now argues, relying primarily on Commonwealth v. Sneed, 376 Mass. 867 (1978), that the judge's actions amounted to improper advocacy in favor of the prosecution, and deprived him of his due process right to a fair trial. We disagree.

In Sneed, the Supreme Judicial Court granted a new trial where the judge exhibited clear partiality in favor of the prosecution, both in his comments made in front of the jury, as well as in his instructions to them. See id. at 869-872. There, "the words of the judge, in total, could hardly have had anything other than a prejudicial effect on the jury." Id. at 872. There is no such judicial misconduct in this case. Here, the judge's only challenged comments were uttered outside the presence of the jury, where his imprimatur could not have had any prejudicial effect on their deliberations. See id. at 870 (noting that "any judicial comment is likely to be accorded substantial weight by the jury"). Moreover, we detect no abuse of discretion. See Commonwealth v. Hoffer, 375 Mass. 369, 375 (1978) (trial judge has discretion to allow or limit questioning on redirect examination).

In addition, the defendant's argument ignores other evidence introduced at trial, which is not challenged on appeal, demonstrating that the bullets constituted ammunition within the meaning of the statute. See Commonwealth v. Mendes, 44 Mass. App. Ct. 903, 904 (1997). We are confident that the quality and quantity of that evidence negated any risk that the judge's ruling somehow impacted the outcome of this case.

3. Armed career criminal conviction. At the defendant's jury-waived trial on the armed career criminal portion of the indictment, the Commonwealth produced evidence of three prior convictions. The defendant moved for a required finding of not guilty arguing, in part, that the Commonwealth failed to establish that the aggravated assault and battery (AA & B) conviction qualified as a "violent crime" within the meaning of the ACCA. The judge denied the motion, and found that the defendant was an armed career criminal based on all three predicate offenses. In so finding, he held that the AA & B conviction qualified as a violent crime under both the residual and force clauses of the ACCA. On appeal, given that the residual clause was recently declared void for vagueness, see Commonwealth v. Beal, 474 Mass. 341, 351 (2016), the defendant primarily argues that there was insufficient evidence to support the force clause finding. We disagree.

In reviewing a claim of insufficient evidence, we determine whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis omitted). Commonwealth v. St. Hilaire, 470 Mass. 338, 343 (2015), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). At a trial for sentence enhancement, "the Commonwealth need not retry the prior conviction"; rather, the "evidence must suffice to prove ... that the crime for which [the defendant] was convicted was a violent crime." Commonwealth v. Eberhart, 461 Mass. 809, 816 (2012). Where the defendant was convicted under a "broad statute that encompasses multiple crimes, not all of which are categorically violent," a certified copy of the conviction will not suffice. Beal, supra (quotation omitted). In such cases, Massachusetts courts use the modified categorical approach, examining extrinsic evidence, to determine the particular theory underlying the conviction. See Eberhart, supra at 816.

Aggravated assault and battery, G. L. c. 265, § 13A(b ), is not categorically a violent crime and, therefore, necessitates this modified categorical approach. As explained in Eberhart, "The statutory crime of assault and battery, G. L. c. 265, § 13A, encompasses three common-law crimes: harmful battery, reckless battery, and offensive battery." 461 Mass. at 818. This is also true of AA & B. However, only two of those three variations-harmful and reckless battery-qualify as "violent crimes" under the force clause. See id. at 818-819. Thus, a conviction of AA & B can qualify as a violent crime only if there is "some additional evidence" that it was for a harmful or reckless battery. See Commonwealth v. Colon, 81 Mass. App. Ct. 8, 16-17 (2011). Viewing the evidence in the light most favorable to the prosecution, see St. Hilaire, 470 Mass. at 343, a rational fact finder could have found that the defendant's AA & B conviction was for a harmful battery.

At the jury-waived trial, the Commonwealth introduced information about the factual basis for the AA & B conviction. First, it introduced the docket sheet, criminal complaint, and tender of plea sheet, which, together, indicated that the defendant pleaded guilty to a May 8, 2007, aggravated assault and battery on a victim who was then three months pregnant. Next, the Commonwealth elicited testimony from an MBTA police officer, Vincent Moy, regarding the circumstances surrounding the defendant's arrest. Per Officer Moy's testimony, on the night of May 8, 2007, he was dispatched to the Ruggles MBTA station where a suspect had been detained. Upon arriving, he observed the victim, who was scared, crying, and had a swollen face, and spoke with her about the assault. Shortly thereafter, the defendant was arrested and booked. This factual background, including the evidence of the victim's swollen face, was sufficient for a rational trier of fact to conclude, beyond a reasonable doubt, that the theory underlying the defendant's conviction was harmful battery. Contrast Eberhart, 461 Mass. at 813, 820 (Commonwealth failed to prove that a simple assault and battery constituted a violent crime where the only evidence was a certified copy of the conviction and testimony from the arresting officer that "provided no substantive information about the crime").

Judgment affirmed.

      The defendant was acquitted on charges of murder in the first degree, armed assault with intent to murder, assault and battery by means of a dangerous weapon, and unlawfully carrying a firearm without a license.

      The motion judge did not preside at the trial.

      The defendant's appearance generally conformed to the witness's description, as he weighs about 180 pounds, is approximately five feet, eight inches tall, and was wearing a dark top. Per the motion judge's findings, however, the defendant was wearing a jacket with no hood, and a "mottled pattern of mostly dark blue with some black or deep navy blue, some brighter blue, and some white parts."

      The defendant's race and weight matched the description, and his height and jacket were similar to those described by the witness. See Commonwealth v. Ancrum, 65 Mass. App. Ct. 647, 653 (2006) ("[A] full match up of all parts of the description" is not necessary to establish reasonable suspicion [quotation omitted] ).

      The defendant objected primarily on the ground that the expert's opinion was outside the scope of cross-examination. However, in the body of the written objection subsequently submitted to the judge, the defendant raised the claim that the introduction of Detective Camper's opinion evidence on redirect examination would cause the court to abandon its proper judicial role, and constitute advocacy for the Commonwealth.

      In order to prove a trial judge's abuse of discretion, the defendant must show prejudice. Commonwealth v. Rodriguez, 75 Mass. App. Ct. 235, 246 (2009). The defendant has not done so here because (1) the Commonwealth had already presented substantial evidence to prove that the bullets constituted ammunition prior to Detective Camper's testimony on redirect examination; and (2) the defendant had an opportunity to recross-examine the witness as to the additional testimony, but chose not to do so.

      Detective Camper used one of the cartridges recovered from the defendant to point out the components of ammunition to the jury. He also described the ammunition recovered from the defendant, in part, as "jacketed soft point .357 caliber cartridges," and further detailed his observations on cross-examination.

      The Commonwealth introduced records of two prior convictions of possession with intent to distribute a class B controlled substance, and one conviction of aggravated assault and battery.

      The ACCA imposes enhanced sentences on defendants who have previously been convicted of a "violent crime" or "serious drug offense." See G. L. c. 269, § 10G.

      As pertinent here, the force clause defines a "violent crime" as one that "has as an element the use, attempted use or threatened use of physical force." The residual clause (no longer in effect) included crimes that "otherwise involve[ ] conduct that presents a serious risk of physical injury to another." G. L. c. 140, § 121, as appearing in St. 1998, c. 108, § 8.

      In Commonwealth v. Beal, 474 Mass. 341, 351 (2016), which was decided during the pendency of this appeal, the Supreme Judicial Court concluded that "the residual clause of the Massachusetts ACCA is unconstitutionally vague." As a result, we agree with the defendant that the AA & B conviction cannot qualify as a predicate offense under the residual clause.

      The defendant does not contend that the other two convictions constituted invalid predicate offenses. To the contrary, his requested relief, as to this claim, is to be resentenced as a level two armed career criminal.

      Unlike in Federal court, the inquiry made by sentencing judges in Massachusetts State courts is not limited to the trial record of the predicate crimes. See Commonwealth v. Eberhart, 461 Mass. at 816. Instead, "the trial judge may admit any evidence that would have been admissible at the original trial." Ibid. (quotation omitted).

      AA & B differs from simple assault and battery in that it carries a steeper penalty, and requires additional proof that the assault at issue: (i) caused serious bodily injury; (ii) was carried out upon a pregnant victim, where the defendant knew or had reason to know of the pregnancy; or (iii) was carried out on a victim who had a restraining order against the defendant, where the defendant knew of the order. G. L. c. 265, § 13A(b ), as appearing in St. 2002, c. 35, § 1. However, "[t]hese differences do not change the underlying acts that constitute an assault and battery." Beal, 474 Mass. at 352.

      A harmful battery is defined as "[a]ny touching with such violence that bodily harm is likely to result." Eberhart, 461 Mass. at 818 (quotation omitted).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Gabriel ARIAS.
    16-P-1273
    Appeals Court of Massachusetts.
    Entered: February 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial, the defendant, Gabriel Arias, was convicted of misleading a police officer during an investigation in violation of G. L. c. 268, § 13B. On appeal, the defendant challenges the jury instructions and the admission of statements and gang evidence pursuant to a joint venture theory. We agree that the jury instructions inaccurately defined an element of the offense and created a substantial risk of a miscarriage of justice. We therefore reverse. We also determine that the evidence would have been sufficient to allow the jury, if correctly instructed, to find the defendant guilty of violating § 13B.

Discussion. a. Jury instructions. The defendant contends that the trial judge, who relied on the model jury instructions in effect at the time of trial, inaccurately instructed the jury on the elements of misleading a police officer. Because the defendant did not raise the argument at trial, we review the challenged instruction for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

The Supreme Judicial Court clarified the meaning of "misleads" in the context of false statements in Commonwealth v. Paquette, 475 Mass. 793 (2016). See Commonwealth v. Tejeda, 476 Mass. 817, 819-820 (2017) (clarifying the meaning of "misleads" in the context of nonverbal conduct). As here, the jury in Paquette were instructed largely in accordance with the model instructions in effect at the time of trial. See Paquette, supra at 798-799. However, the instructions incorrectly permitted the jury "to conclude that the defendant 'misled' police even if his false or incomplete statements could not reasonably have led police to pursue a materially different course of investigation." Id. at 802. As we are compelled to follow the mandatory language and holding in Paquette, we conclude that this instruction created a substantial risk of a miscarriage of justice.

b. Sufficiency of the evidence. We now consider whether the evidence would have been insufficient to allow the jury to convict the defendant had they received a correct instruction about the elements of § 13B. See id. at 804. Under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), looking at the evidence in a light most favorable to the Commonwealth, there would have been sufficient evidence for the jury to conclude that the defendant violated the statute.

At trial, the Commonwealth presented evidence that the defendant spoke with police on August 28, 2012, as officers investigated a home invasion, attempted robbery, and murder that occurred in Billerica in the early hours of July 7, 2012. In summary, the defendant told police that he was unaware of any incident occurring in Billerica between July 6 and July 7, and that he was not in Billerica that night. He initially denied being in contact with Steven Touch and Adam Bradley that night, both of whom had been identified in the investigation. He instead told police that he went to a party in Salem, leaving for the party between 10:00 P.M. and 11:00 P.M. and returning to his home in Lynn between 2:00 A.M. and 3:00 A.M. During the interview, he gave the officers his cellular telephone (cell phone) number and also told them that his cell phone was passcode protected and that no one else had access to it.

The Commonwealth presented evidence contradicting the defendant's statement about his whereabouts and communications. Police had been investigating the incident before speaking with the defendant. They identified several individuals in the course of that investigation, including two individuals matching physical descriptions of the intruders. Police also obtained "call detail records" for the defendant and several others. When police told the defendant that the call detail records indicated that the defendant spoke with Touch and Peter Bin, another person identified in the investigation, the defendant then acknowledged the calls and said both Bin and Touch called about going to Lowell, and that Touch called the defendant's home landline telephone at an early hour "[t]o see what's up."

After speaking with the defendant, the police obtained information from his mother contradicting the defendant's statement to them. The defendant's mother, who lived with the defendant, testified that between 5:30 A.M. and 6:00 A.M. on the day in question she answered a call on their home's landline telephone from a friend of the defendant, and that the friend said that the defendant left his cell phone in the friend's car that night. She also testified that she believed that the defendant returned home at 5:00 A.M.

The police also obtained cellular site location information (CSLI) for the defendant's password protected cell phone. The CSLI placed the defendant's cell phone, and inferentially the defendant, at 3:33 A.M. on Boston Road in Billerica, which is the same street where the home invasion occurred, and is consistent with the defendant traveling from Marblehead to Billerica to Lynn. This evidence contradicted the defendant's statement to police that he returned home between 2:00 A.M. and 3:00 A.M. The jury could infer that the defendant was with the others under investigation and that he provided a false alibi.

The jury could have concluded that the defendant's statements "reasonably could have led police to pursue a materially different course of investigation." Paquette, 475 Mass. at 805. The defendant's responses to police regarding when he left and arrived home went beyond a "short exculpatory denial" that would have left police in the same position had the defendant remained silent. Id. at 803. See Commonwealth v. Morse, 468 Mass. 360, 374 (2014) (defendant's statement was an exculpatory denial, "not a content-laden fabrication designed to send police off course"). Although police had identified two individuals matching descriptions of the intruders, a victim reported that there were four intruders and police were still investigating and identifying others involved. The jury reasonably could have inferred that the defendant sought to divert attention from himself and suggest that he could not have been involved with the alleged crimes. The statements could have led police to investigate the defendant's whereabouts after he left the party in Salem and investigate whether he further misrepresented his contact with Bin and Touch, or they could have led the police to further investigate other potential persons of interest. See Paquette, supra at 800-801. The statements "were affirmative misrepresentations the jury could reasonably conclude were made to send the police off course." Commonwealth v. Occhiuto, 88 Mass. App. Ct. 489, 506 (2015). It is inconsequential that the statements did not actually mislead the police. See Commonwealth v. Figueroa, 464 Mass. 365, 372-373 (2013) (defendant on parole misled officer when misrepresenting his whereabouts).

Conclusion. The judgment is reversed, and the verdict is set aside.

So ordered.

Judgment reversed. Verdict set aside.

      The elements of misleading a police officer are "(1) wilfully misleading, directly or indirectly, (2) a police officer (3) with the intent to impede, obstruct, delay, harm, punish, or otherwise interfere thereby with (4) a criminal investigation" (footnote omitted). Commonwealth v. Paquette, 475 Mass. 793, 797 (2016).

      The defendant's trial occurred in 2014; the trial judge issued jury instructions prior to and without the benefit of Paquette.

      Both parties reference information that was not before the jury at trial. In reviewing the sufficiency of the evidence, we only consider the evidence actually before the jury.

      The call detail records provided information about calls placed to and from telephone numbers, with the date and time of each call.

      The Commonwealth elicited testimony from an officer that the defendant's mother told him that "Steven" called the defendant's home that morning. The testimony was admitted for impeachment purposes only.

      The trial record is unclear when police requested the CSLI and whether they received it before speaking with the defendant. The trial record was clear that the police had the call detail records before speaking with the defendant because they challenged his initial statement to them based on the records.

      A victim testified that the home invasion began at approximately 3:50 a.m.

      We do not reach the other issues raised by the defendant on appeal. The parties may address these issues before the Superior Court at any retrial.


text:
    Richard D. FANNING v. BOARD OF ZONING APPEAL OF CAMBRIDGE.
    16-P-1378
    Appeals Court of Massachusetts.
    Entered: February 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The board of zoning appeal of Cambridge (board) appeals from a judgment of the Land Court overturning the board's denial of the variance and special permit applications filed by the plaintiff, Richard D. Fanning. For the reasons that follow, we reverse.

Background. Fanning owns and occupies one side of an attached, duplex-style townhouse located on Cornelius Way in Cambridge (city) in the C-1 residential zone. His single-family unit is part of a townhouse development built around 1985. Fanning's lot, containing 6,248 square feet, is the largest of the fifty-four lots in the development, and has one off-street parking space.

In 2011, the board granted Fanning a variance to construct an addition which, when built, expanded his unit by more than twenty-five percent. On the application, Fanning identified the rear lot line as 32.40 feet wide and, noting the city zoning ordinance's (ordinance) fifty-foot width requirement, labeled it as "existing non-conforming." The application also noted that the western lot line (shared with the other side of the duplex) has a zero setback in contrast to the required 8.9 foot setback, though the addition would be twenty-four feet from the western property line. Fanning communicated to the board in his application that a variance was required because his unit was nonconforming and the addition exceeded twenty-five percent of the original structure.

At the hearing in 2011, Fanning introduced a statement of support from twenty-seven of his neighbors. The board granted the variance, finding that there were circumstances involving a substantial hardship relating to this property within the meaning of G. L. c. 40A, § 10, and that "desirable relief could be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the [o]rdinance." The board conditioned approval on compliance with the plans submitted and initialed by the chairman. There was no appeal from any aspect of the decision.

Off-street parking in the townhouse development is in the form of parking spaces in the front yard of each unit. In March of 2013, asserting that he hoped to rent out space in his unit, Fanning sought a variance and special permit for a second driveway cut and off-street parking space, requesting relief from article 6.43.3(c) of the ordinance, which allows only one curb cut per lot for lots with less than 100 feet of frontage, and article 6.44.1(c), which prohibits parking spaces within a required front yard setback. Pursuant to article 6.43.5(c), the one space per 100 feet of frontage may be modified by special permit if the board "determines that traffic and safety would be facilitated by exceeding this maximum." Relief from the prohibition of parking in a required front yard required a variance.

Although there were no objections from the neighbors and one neighbor spoke in favor of the proposal, the board denied relief, finding that Fanning had not shown hardship related to the soil conditions, shape, or topography of the land or structures and that relief could not be granted without substantial detriment to the public good or nullifying or substantially derogating from the intent and purpose of the ordinance. The board further found that it had been the board's consistent policy to discourage front yard parking absent a compelling case such as substantial hardship, which had not been demonstrated. The judge found that the board suggested that Fanning apply for a special permit waiver from the requirement that he provide a second off-street parking space. Fanning did not appeal from the board's decision.

Fanning next sought a building permit to construct an exterior staircase to the second floor of his unit. The building inspector told Fanning he needed a new variance to make any changes to the addition made possible by the 2011 variance. Fanning took no further action with regard to the building permit.

In 2014, Fanning sought a variance to create a second dwelling unit within his single-family residence and to add an exterior open staircase to the second floor as a second egress. He also sought a special permit to dispense with the requirement that each unit have an off-street parking space. The application identified the width of the lot as "45 [foot] avg" but indicated that fifty feet were required, and identified the side setback as zero, although 8.4 feet were required. Although the dimensional information sheet did not reflect that the proposed staircase would encroach the side yard setback, elsewhere in the application, Fanning stated that "[t]he requested variance of side yard setback is minimal, only two feet, still leaving a 6.5 foot setback from the affected side yard, which does not have a traditional 'neighbor' on that side as the lot abuts railroad tracks." He also suggested that, pursuant to articles 5.24.1 and 5.24.2 of the ordinance, the open staircase could be deemed to be a fire escape which the ordinance allows to encroach into a required yard.

In support of the special permit, the application stated "[t]here is insufficient land at the front of the lot to provide a second off street parking space, and access to the rear of the lot is prevented by the" existing dwelling. He noted that his property is at the end of a townhouse grouping and abuts an active railroad; there is surplus off-street parking in the vicinity; the MBTA Red Line is a fifteen to twenty minute walk; the MBTA bus lines are a five to ten minute walk; the second unit likely will house single, young students or others who would be expected to choose to live without an automobile; and he will seek tenants who do not own a car or who will seek parking in a nearby commercial facility.

According to the judge's findings, this time "several neighbors ... spoke and/or wrote in opposition to Fanning's proposal based largely on parking concerns." The board found that, based on the neighbors' complaints regarding parking issues, Fanning failed to demonstrate that reducing the number of parking spaces would not substantially reduce parking availability for other uses. The board further noted that, although Fanning had identified the location of neighboring parking facilities, he did not support his claims that a prospective tenant could park there. In addition, the board found that Fanning had not met the other special permit criteria (the board essentially parroted the criteria). With regard to the variance, the board found that Fanning had not demonstrated any hardship and "granting relief would be substantially detrimental to the public good and would intrude on a setback in a rather tight neighborhood."

Fanning appealed the denial of his 2014 special permit/variance application to the Land Court pursuant to G. L. c. 40A, § 17. The judge found that Fanning had not needed a variance for his 2011 addition; his lot and structure are conforming; and he did not need a variance for the addition of the proposed staircase or, apparently, to convert the townhouse to two dwelling units. The judge concluded that Fanning could reapply for a building permit for the second dwelling and exterior stairs and ordered the city building inspector to grant the building permit without requiring additional zoning relief. In addition, the judge concluded that Fanning had met the criteria for a special permit eliminating the off-street parking requirement; the board's denial of the special permit was arbitrary and capricious; and no reasonable board could have concluded as they did.

Discussion. The board's decision cannot be disturbed unless, on facts found by the judge de novo, the judge concludes that the board's decision is based on a legally untenable ground or is "unreasonable, whimsical, capricious or arbitrary." Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475 (2012) (Shirley Wayside ), quoting from Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 382 (2009) (Wendy's ). "The board is entitled to deny a permit even 'if facts found by the court would support its issuance,' ... [but] [t]he judge nonetheless should overturn a board's decision when 'no rational view of the facts the court has found supports the board's conclusion.' " Shirley Wayside, supra, quoting from Wendy's, supra. When reasons given by the board lack a substantial basis in fact and, in reality, were "mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law," deference is not appropriate. Shirley Wayside, supra, quoting from Vazza Props., Inc. v. City Council of Waltham, 1 Mass. App. Ct. 308, 312 (1973).

The parking special permit. Fanning asserts in his application that he is seeking zoning relief in order to create a second unit in his townhouse. Article 5.26 of the ordinance provides that "[n]o new dwelling unit created by the conversion of an existing dwelling into a greater number of units ... shall be permitted" unless it meets, among other area and open space requirements, the requisite off-street parking for all dwelling units after the conversion. Article 5.26 contains no provision for exception by special permit. Pursuant to article 6.35, however, "[a]ny required amount of parking may be reduced by issuance of a special permit from" the board.

A special permit allowing a reduction in required parking may be granted only if the board "determines and cites evidence in its decision that the lesser amount of parking will not cause excessive congestion, endanger public safety, substantially reduce parking availability for other uses or otherwise adversely impact the neighborhood." Article 6.35.1. In addition, the current article 11.16.2(4) provides that the space per unit parking requirement for townhouse developments may be met by on-street parking if the "special permit granting authority determines that the lack of off street parking for the townhouse development will not unreasonably reduce the quantity of on street parking in the area." Applicants for an exception from off street parking must "submit a report on parking usage and availability in the vicinity of the development with their permit application." Ibid.

The judge, however, found that Fanning only had to comply with the requirements contained in article 11 of the ordinance because it specifically applies to townhouse developments, and the provisions of article 6 are more general. We disagree. The townhouse development is already completed, and the mechanism by which it fulfilled its off-street parking requirements was established years ago with a single parking space on each dwelling unit's front yard. What prompted Fanning to seek relief from the board was not the development of his townhouse, but his desire to convert his single-family unit to a two-family unit. Article 5.26 specifically addresses the conversion of dwellings and requires that off-street parking requirements (here one space per dwelling unit) be met. If not for the broad provision in article 6.35 allowing relief from parking requirements, a variance would have been required. As a result, we are persuaded that the judge erred in concluding the article 6.35 provisions were not applicable.

In considering whether to grant the special permit, the board credited evidence that street parking in the area of Fanning's property was already overcrowded. Fanning, himself, testified that parking on the street was tight because residents of other neighborhoods also parked on his street. The judge did not make a contrary finding. In addition, the board correctly pointed out that Fanning's identification of local lots, where some commuters park, failed to demonstrate that a resident could park there overnight, and, although Fanning indicated that commercial parking was adjacent to his property, and buses and the subway line were nearby, he did not point to any age or other restrictions that would mandate that a renter of his second unit utilize those alternatives to parking a car on the street.

Article 6.35.1 of the ordinance states that consideration of offsite parking availability is appropriate, provided the requirements of 6.23 are satisfied. Article 6.23 provides that, when accessory parking facilities are allowed on land other than the lot on which the use being served is located, the special permit granting authority must be satisfied that binding commitments exist to guarantee that the off-site parking will continue to be available for the period during which the use or uses may be expected to be in existence-as evidenced by a negotiated lease agreement, recorded covenant, or comparable legal interest. Here, instead, Fanning relied on his own observation of 150 vacant spaces in an adjacent parking facility mid-week, along with the proximity to public transportation, and his prediction of the type of tenant his unit would attract. We cannot say the board erred in these circumstances in declining to accept Fanning's assessment of the adequacy of available parking.

The board's decision to deny approval of an additional space in Fanning's front yard is not before us, although we note his assertion on his 2014 application that there is not enough room for a second space. In addition, the fact that the board suggested earlier-at a time when there were no objecting abutters-that Fanning might qualify for a special permit to eliminate the off-street parking requirement, did not bind the board, particularly where, by the time Fanning sought that relief, some of his neighbors did in fact object.

The judge reasoned that a second person living with Fanning could park an automobile on the street and cause the same issue as would be caused by granting the special permit. That is true, of course, for all of the units in the development. Allowing a special permit on those grounds, however, would render the one space per unit requirement meaningless. We see no abuse of discretion in the board's decision not to grant the special permit to eliminate an off-street parking space requirement, given that street parking is already overcrowded and no commitment to off-site parking has been made.

The judge's conclusion that the board put Fanning in an unwinnable situation implies that Fanning was entitled to a decision either allowing a second space in the property's front yard or an exemption from the one space per dwelling unit requirement. That is not the case. Both of those actions require a variance or special permit, and no one is entitled to either a variance or a special permit as of right. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 559-560 (1954).

Variance. The judge concluded that no variance was required for the original 2011 addition because it was a conforming addition to a conforming structure. As a result, he concluded that the staircase, which he found qualifies as a fire escape and which the ordinance allows to encroach on the setback, did not require a variance. We disagree.

Fanning's application for the 2011 variance indicated that the lot was nonconforming in terms of the side setback and rear width requirements. The judge suggests that, because the side setback was allowed when the townhouse was built, it was a complying structure in 2011, despite the testimony of the commissioner of inspectional services that the townhouse ordinance had changed. Although they are usually waived for individual units in a townhouse development when the development as a whole is approved, when seeking to modify a townhouse, articles 11.15(c), 11.15.1, and 11.15.4 of the ordinance specifically provide that the zoning district's width and yard requirements apply to individual units. As a result, to the extent it was even open to the judge to reconsider the 2011 decision that a variance was required (a decision that was not appealed), there was no basis for the judge's conclusion that the dwelling was conforming when Fanning sought to increase its size by more than twenty-five percent in 2011.

When, as here, a variance is granted, conditioned on construction in compliance with submitted plans, "the variance requires strict compliance with the plans." Lussier v. Zoning Bd. of Appeals of Peabody, 447 Mass. 531, 536 (2006), quoting from DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339, 346-347 (1985). Even if the proposed staircase does constitute a fire escape and may encroach into the side setback without creating a new nonconformity, it still constitutes additional construction, contrary to the plans submitted in 2011 and therefore requires a new or modified variance. See Lussier, supra at 532, 535-536. That a different section of the ordinance might have allowed Fanning to obtain approval of the 2011 addition by special permit is not relevant once Fanning identified lot nonconformities, elected to proceed with and obtained a variance, and failed to appeal from the variance. See Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357, 362 (2008) (judge did not abuse discretion in refusing to consider plaintiffs' contention on motion for reconsideration that different provision of zoning by-law might exempt property from lot size requirement). As a result, we cannot agree with the judge that Fanning was not required to obtain a new variance, or a modification of the 2011 variance.

There was no error in the board's conclusion that Fanning had not shown hardship. It is well-settled that hardship stemming from an owner's personal financial and even health difficulties, rather than factors which affect the land itself, are not valid bases for a variance. See Sheppard v. Zoning Bd. of Appeals of Boston, 81 Mass. App. Ct. 394, 399 n.8 (2012). "[A]n inability to maximize the theoretical potential of a parcel of land is not a hardship within the meaning of the zoning law." Steamboat Realty, LLC v. Board of Appeal of Boston, 70 Mass. App. Ct. 601, 603 (2007), quoting from McGee v. Board of Appeal of Boston, 62 Mass. App. Ct. 930, 931 (2004). A finding of no hardship is sufficient reason to deny a variance. Ibid.

Fanning tacitly concedes in his brief that his application does not meet the requirements for a variance. Other than repeating his unavailing argument that the 2011 addition complied with zoning requirements, he makes no effort to argue the property actually qualified for a variance in 2014. For all of the foregoing reasons, therefore, we discern no error in the board's denial of Fanning's variance or special permit applications. The judgment is reversed. The matter is remanded for entry of a new judgment affirming the decision of the board and such other orders as may be necessary, consistent with this memorandum and order.

So ordered.

Reversed and remanded.

      The application indicated he needed additional space for his model-making and woodworking hobbies. The judge also found that he intended to have his sister move in with him.

      At the time of his application, article 8.22.2(c) of the ordinance provided that a special permit for the enlargement of a nonconforming structure may be granted, but only if the enlargement is not in further violation of dimensional requirements and the nonconforming structure will not be increased in area or volume by more than twenty-five percent. Article 8.22.3 provided that all other enlargements of a nonconforming structure required a variance.
      Article 11.15(c) of the ordinance provides that modifications of townhouse developments that do not comply with the dimensional standards may be allowed by a special permit issued by the board. The 2011 application, however, made no reference to article 11.

      Article 6.35.1 further provides:
      "In making such a determination the Board shall also consider whether or not less off street parking is reasonable in light of the following:
      "(1) The availability of surplus off street parking in the vicinity of the use being served and/or the proximity of an MBTA transit station.
      "(2) The availability of public or commercial parking facilities in the vicinity of the use being served provided the requirements of Section 6.23 are satisfied.
      "(3) Shared use of off street parking spaces serving other uses having peak user demands at different times, provided that no more than seventy-five (75) percent of the lesser minimum parking requirements for each use shall be satisfied with such shared spaces and that the requirements of Subsection 6.23 are satisfied ....
      "(4) Age or other occupancy restrictions which are likely to result in a lower level of auto usage; and
      "(5) Impact of the parking requirement on the physical environment of the affected lot or the adjacent lots including reduction in green space, destruction of significant existing trees and other vegetation, destruction of existing dwelling units, significant negative impact on the historic resources on the lot, impairment of the urban design objectives of the city as set forth in Section 19.30 of the Zoning Ordinance, or loss of pedestrian amenities along public ways.
      "(6) The provision of required parking for developments containing affordable housing units, and especially for developments employing the increased FAR and Dwelling unit density provisions of Section 11.200, will increase the cost of the development, will require variance relief from other zoning requirements applicable to the development because of limitations of space on the lot, or will significantly diminish the environmental quality for all residents of the development.
      "For a project seeking a reduction in required off-street parking for residential uses, a Parking Analysis shall be required as part of the Special Permit Application as set forth in Section 6.35.3."
      Article 6.35.32 provides that "[w]here a Parking Analysis is specifically required by any provision of this Zoning Ordinance, the proponent shall first consult with the Traffic, Parking and Transportation Department to determine the scope and methodology of such an analysis. The results of the Parking Analysis shall be included in any Special Permit Application for the project." Article 6.35.33 contains criteria for residential projects some or all of which are to be included as determined by the city traffic, parking and transportation department.

      The judge found that the board also relied on the absence of a traffic analysis in denying the special permit. Although the board's decision does not comment on the absence of a formal traffic analysis, Fanning testified that one of the board members told him at the hearing that one of the reasons his application was rejected was because he did not submit a traffic study. The judge found that Fanning's report of parking availability was sufficient and Fanning did not need to conduct the analysis required by article 6.35.33 because what he provided satisfied the requirement contained in article 11. As noted above, Fanning, in fact, was required to satisfy article 6 in order to obtain relief from the parking requirement for conversion of one dwelling unit to two. Fanning testified that he did not conduct a parking study because he did not think it was necessary for a one-space reduction in parking. However, the ordinance requires consultation with the traffic, parking and transportation department to determine the scope and methodology of any required analysis. Article 6.35.33 contains criteria for a parking analysis for residential projects, some or all of which are to be included as determined by the traffic, parking and transportation department. It was therefore not Fanning's determination of whether a parking study was necessary that is required by the ordinance. As a result, the board could have denied the special permit because the application was incomplete, if for no other reason, Fanning, at a minimum, having failed to consult with the department.

      We conclude the judge correctly rejected the board's argument that, pursuant to Sisters of the Holy Cross of Mass. v. Brookline, 347 Mass. 486, 494-495 (1964), Fanning failed to preserve his argument that the board erred in requiring him to obtain a variance in 2014.

      It is true that article 11.15(c) provides that modifications of townhouses that do not comply with the dimensional standards may be allowed by a special permit issued by the board. Fanning did not seek zoning relief under article 11.15(c). Although the chairman was perhaps correct that all Fanning needed in 2011 was a special permit, we will not disturb the variance issued upon the plaintiff's request.


text:
    COMMONWEALTH v. Hakeem COOPER.
    17-P-185
    Appeals Court of Massachusetts.
    Entered: February 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a bench trial in the Boston Municipal Court, the defendant, Hakeem Cooper, appeals from his conviction of indecent assault and battery on a person over fourteen, in violation of G. L. c. 265, § 13H. The defendant specifically argues that his motion to dismiss the charge for lack of probable cause and his motions for a required finding of not guilty were denied in error. We affirm.

I. Background. "We summarize the facts as the [trial judge] could have found them, in the light most favorable to the Commonwealth," reserving some facts for later discussion. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997). At the time of the incident, the defendant was an inmate in the segregation unit at the Suffolk County house of correction at South Bay (South Bay). As part of her job responsibilities as a nurse at South Bay, the victim administered medications to the inmates. On June 14, 2014, the victim, accompanied by a corrections officer, William Ward, was administering medication to the defendant through the trap door of his jail cell. According to the victim's testimony, the defendant "had a grin on his face" and "leaned his groin forward and touched [her] hand with his penis through his Long Johns" when she placed a cup of water on the sill within the cut-out of the cell door. The victim pulled her hand back from the door and notified Ward of what had just happened. The victim reported the incident to an assistant deputy superintendent of the Suffolk County house of correction, Brian Dacey. Ward and Dacey each created an incident report and testified at trial.

Ward's incident report, which he read out loud at trial, states that the victim "accused [the defendant] of putting his groin in the region at the trap door of his cell while [the victim] proceeded to give [the defendant] his medication. [The victim's] hand brushed [the defendant's] groin." Ward also testified that at the time of the incident he was looking at the defendant's face through a window in the door and not at the trap door; Ward did not observe the defendant touch the victim or "press anything up against the trap door area."

Dacey's incident report, which was filed with the criminal application, states that the defendant "purposely placed his clothed genitals to the area of the trap door so that [the victim's] hand would come into contact with his genitals."

Prior to his trial, the defendant had moved to dismiss the charge for lack of probable cause. A judge, who was not the trial judge, denied this motion. After the Commonwealth rested at trial, and again at the close of all the evidence, the defendant moved for a required finding of not guilty. The trial judge denied both motions and found the defendant guilty of indecent assault and battery on a person over the age of fourteen.

II. Motion to dismiss the complaint for lack of probable cause. We review a judge's ruling on a motion to dismiss for lack of probable cause de novo. Commonwealth v. Humberto H., 466 Mass. 562, 566 (2013). The defendant argues that the facts presented in the complaint were insufficient to establish probable cause that he committed an indecent assault and battery on the victim. Specifically, there were no facts alleged that "the defendant affirmatively moved his body to contact [her] hand." We disagree.

"The type of conduct that constitutes indecent assault and battery on a person over fourteen years of age is not defined in G. L. c. 265, § 13H. A definition adopted by this court provides: '[a]n indecent assault and battery is essentially an act or series of acts which are fundamentally offensive to contemporary moral values .... [I]t is behavior which the common sense of society would regard as immodest, immoral and improper .... Thus, in order to prove indecent assault and battery, the Commonwealth must prove ... that the defendant committed an intentional, unprivileged and indecent touching of the victim.' " (Footnote omitted.) Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184 (1991), quoting from Commonwealth v. Perretti, 20 Mass. App. Ct. 36, 43-44 (1985). To overcome a motion to dismiss for lack of probable cause, the complaint application need only set forth " 'reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.' Probable cause is considerably less than proof beyond a reasonable doubt, so evidence that is insufficient to support a guilty verdict might be more than sufficient to establish probable cause." Humberto H., supra at 565 (citations omitted).

Here, the incident report filed with the criminal application provided facts that the defendant "purposely" moved his body to an area where "[the victim's] hand would come into contact with his genitals." The defendant affirmatively moving his genitals to the area of the trap door where the victim's hand would come into contact with them provided the motion judge with sufficient facts to establish probable cause that the defendant intentionally committed an indecent assault and battery on the victim. The motion judge, therefore, did not err in denying the defendant's motion to dismiss the complaint for lack of probable cause.

III. Motions for a required finding of not guilty. In reviewing a denial of a motion for a required finding of not guilty, we must determine whether the evidence was sufficient to permit any rational fact finder to conclude that the essential elements of the crime had been proven beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The defendant argues that there was insufficient evidence to support a finding that the defendant's act was an offensive or harmful battery, intentional, or indecent. In considering these claims, we take the evidence in the light most favorable to the Commonwealth. See id. at 677.

The defendant maintains that the judge made an impermissible "leap of conjecture" concerning who touched whom because there was differing testimony at trial. We disagree. Inconsistencies in testimony go to the credibility of the witness and do not necessarily affect the sufficiency of the evidence. See Mosby, 30 Mass. App. Ct. at 185. "Once sufficient evidence is presented to warrant submission of the charges to the [fact finder], it is for the [fact finder] alone to determine what weight will be accorded to the evidence." Ibid., quoting from Commonwealth v. Hill, 387 Mass. 619, 624 (1982).

Lastly, despite the defendant's arguments, there was sufficient evidence to permit a reasonable fact finder to conclude beyond a reasonable doubt that the defendant intended to touch the victim, see Commonwealth v. Holbrook, 86 Mass. App. Ct. 391, 393-394 (2014), and that such touching was indecent. See Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 566 (2002) ("A touching is indecent when, judged by the 'normative standard' of societal mores, it is 'violative of social and behavioral expectations,' ... in a manner 'which [is] fundamentally offensive to contemporary moral values ... [and] which the common sense of society would regard as immodest, immoral and improper' " [quotation omitted] ). Considering the circumstances here, the defendant's contact with the victim through the trap door was not inadvertent, and the "common sense of society would regard" an individual touching another with their genitals as "immodest, immoral and improper." Ibid. (quotation omitted).

Thus, the trial judge did not err in finding beyond a reasonable doubt that the defendant's act constituted an indecent assault and battery on the victim.

Judgment affirmed.


text:
    COLLABORATIVE FOR EDUCATION SERVICES, INC. v. SEIU LOCAL 509.
    17-P-392
    Appeals Court of Massachusetts.
    Entered: February 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After an arbitrator decided that a dispute between these two parties was subject to arbitration under their collective bargaining agreement (CBA), Collaborative for Education Services, Inc. (Collaborative) filed a complaint in Superior Court, and moved "to vacate arbitrator's award, to stay arbitration and for declaratory judgment." SEIU Local 509 (union) filed a cross motion to confirm the arbitrator's decision. A Superior Court judge allowed the union's motion and denied Collaborative's motion, and entered judgment accordingly, from which Collaborative now appeals. We affirm.

Background. At issue before us is an interpretation of the CBA and how it relates to conditional employees. The CBA states that an employee must work a "conditional employment period of three consecutive years," during which the "employee may be discharged, laid off, suspended or demoted without recourse by the employee or the Union under the grievance or arbitration procedures established by this Agreement" (conditional employment provision). The CBA further contains a nondiscrimination provision, which states that neither party will "discriminate against any employee in violation of any law on the basis of ... union activity." Finally, the CBA lays out a grievance procedure that provides that if either party disputes the application or interpretation of the CBA and the parties cannot reach an agreement, it may be submitted to arbitration.

The grounds for this appeal began in June, 2014, when Collaborative opted not to renew the contract for a conditional employee (employee) who was nearing the end of her conditional employment period. The union subsequently filed a grievance on behalf of the employee, asserting that her termination was the result of her union activity and therefore violated the nondiscrimination provision of the CBA. Collaborative responded to that grievance by stating that neither the employee nor the union on the employee's behalf was entitled to file such a grievance because the employee was a conditional employee. In response, the union sought arbitration.

The substance of the grievance has never been addressed, as the parties agreed to bifurcate the arbitration and address first whether the grievance is even subject to arbitration. The arbitrator determined that the matter was arbitrable as the asserted discrimination directly related to the employee's termination, and that it was unreasonable to interpret the conditional employment provision as extending so far that no remedies would exist for unlawfully discriminatory terminations. While recognizing that the employee was a conditional employee under the CBA, the judge determined that the nondiscrimination provision applied to "any employee" and that the arbitrator's conclusion that the matter was subject to arbitration was a plausible interpretation of the CBA. Collaborative appeals.

As the issue before us is a "gateway dispute about whether the parties are bound by a given arbitration clause," we review the judge's decision de novo. Feeney v. Dell Inc., 454 Mass. 192, 198-199 (2009), quoting from In re Am. Express Merchants' Litig., 554 F.3d 300, 311 (2d Cir. 2009). See Commonwealth v. Philip Morris Inc., 448 Mass. 836, 844 (2007). Especially when a CBA contains a broad arbitration provision, such as the agreement in question, "[d]oubts should be resolved in favor of coverage." Local No. 1710, Intl. Assn. of Fire Fighters, AFL-CIO v. Chicopee, 430 Mass. 417, 421 (1999), quoting from AT & TTechnologies, Inc. v. Communications Wkrs., 475 U.S. 643, 650 (1986). Where an arbitration clause exists, "there is a presumption of arbitrability in the sense that '[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.' " Falmouth Police Superior Officers Assn. v. Falmouth, 80 Mass. App. Ct. 833, 838-839 (2011), quoting from Local No. 1710, supra. The presumption of arbitrability may be "successfully rebutted only if the party resisting arbitration shows either (1) the existence of an express provision excluding the grievance from arbitration or (2) the 'most forceful evidence' of a purpose to exclude the claim from arbitration." Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 75 Mass. App. Ct. 340, 343 (2009), quoting from Paper, Allied-Industrial, Chem. & Energy Wkrs. Intl. Union Local 4-2001 v. Exxon Mobil Ref. & Supply Co., 449 F.3d 616, 620 (5th Cir. 2006).

In Falmouth Police, supra at 838-840, the presumption of arbitrability was successfully rebutted upon a showing that the agreement limited arbitrable grievances to violations of the terms of the agreement and the grievance did not fall under those specified terms. Collaborative asks us to read the conditional employment provision, which states that conditional employees have no recourse under the CBA's grievance or arbitration procedures upon being "discharged, laid off, suspended or demoted," as extending to include a termination that violates the CBA's nondiscrimination provision. Further, Collaborative suggests that the CBA, despite the fact that the nondiscrimination provision unambiguously applies to "any employee," establishes its point so clearly that there is a "positive assurance" that the CBA's arbitration provision cannot be utilized by conditional employees alleging discrimination. Id. at 838.

We consider the CBA "in a reasonable and practical way, consistent with its language, background, and purpose." Sheriff of Suffolk County, supra at 342 (quotation omitted). Absent clearer language in the CBA to support Collaborative's interpretation of the contract, and keeping in mind that such a conclusion would leave a conditional employee with no recourse under the CBA in the event of a discriminatory termination, we disagree with Collaborative. Having reviewed the CBA, we cannot say with positive assurance that the contract is not susceptible of the interpretation advanced by the union: that the nondiscrimination provision protects all employees and is separate and distinct from the conditional employment provision. As such, the CBA could be appropriately read to subject the grieved action-that the employee was allegedly terminated as the result of her union activity-to the CBA's arbitration provision. See Falmouth Police, supra at 838-840.

Judgment affirmed.

      The arbitrator wrote as follows: "It is fair to assume that if, during the bargaining for [the conditional employment provision], the Employer had said to the Union words to the effect of 'If you agree to our proposal, we will be able to terminate a conditional employee, with contractual impunity, on the grounds that this employee is gay or black or otherwise protected by the law, and you cannot grieve or arbitrate that termination,' the Union would not have knowingly signed on. It is important, therefore, to harmonize the two provisions so that both provisions are accorded their intended meaning."

      In Falmouth Police, supra at 835, the employee argued that his termination was not supported by just cause. The agreement in question provided for arbitration only in the event of a "violation of the terms of this Agreement." Id. at 835. Whether a termination must be accompanied by just cause was not addressed in the CBA, and the court concluded that the employee's grievance was not subject to the CBA's arbitration provision. Id. at 836-840


text:
    COMMONWEALTH v. Yasmani QUEZADA.
    17-P-105
    Appeals Court of Massachusetts.
    Entered: February 14, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Yasmani Quezada, was convicted by a jury in the Superior Court of breaking and entering in the daytime with the intent to commit a felony therein in violation of G. L. c. 266, § 18. The defendant appeals from his conviction and the denial of his pretrial motion to suppress evidence obtained through an interception warrant pursuant to G. L. c. 272, § 99. The defendant asserts five arguments on appeal. First, the defendant argues that the motion judge erred in denying the defendant's motion to suppress evidence obtained through an interception warrant. He argues that the Commonwealth did not satisfy the requirement, pursuant to G. L. c. 272, § 99(E)(3), that normal investigative procedures had been tried and failed or reasonably appeared unlikely to succeed if tried. Second, the defendant argues that the trial judge erred in allowing the Commonwealth to introduce evidence of the defendant's subsequent bad acts. Such evidence included items found on the defendant's person during arrest (including keys, a box of sandwich bags, and approximately $2,000 in cash), and other items (including heroin) that were recovered from an apartment in Revere (Revere apartment) during the execution of a search warrant. Third, the defendant argues that the trial judge erred in not providing the jury with a constructive possession instruction for the evidence that was admitted regarding the defendant's subsequent bad acts, and that such lack of instruction created an impermissible presumption violating the defendant's due process rights. Fourth, the defendant argues that the trial judge erred in preventing defense counsel from examining a witness about statements that fell within the crime-fraud exception to the attorney-client privilege. Lastly, the defendant argues that the trial judge erred in admitting Sergeant Russolillo's opinion testimony that references made in the wiretap telephone calls of "going to church" refers to a conspiracy to commit a breaking and entering. We affirm, addressing each issue in turn.

Background. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth, reserving some facts for later discussion. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997).

1. The interception warrant. On January 7, 2010, on the basis of an affidavit demonstrating cause to believe two telephones were being used to coordinate illegal gaming, a Superior Court judge issued a search warrant authorizing the Massachusetts State police (MSP) to wiretap said telephones. This warrant was renewed three additional times before the MSP intercepted a telephone call that appeared to show that a Federal Bureau of Investigation (FBI) agent was set to pay money to a main target of the MSP investigation. While confirmation was pending whether the FBI was involved with the target, a Superior Court judge renewed the wiretap authorization a fourth time, expanding it to include the defendant's telephone. The judge, at this juncture, was unaware of the possible FBI involvement. Five days after the fourth renewal, however, investigators informed the judge through an affidavit that one of the targets of the MSP investigation was working with the FBI as an informant.

2. The burglary. Between March 17 and March 28, 2010, the MSP intercepted several telephone calls between the defendant and others about "going to go to church [on] Sunday." These intercepted calls also included conversations regarding who would be present at an apartment in the Roslindale section of Boston (target apartment) on Sunday, specifically that "no one's going to be there today, right?" and "on Sundays they're never there ... after four o'clock in the afternoon they're not there ...." The MSP obtained anticipatory warrants for Sunday, March 21, the expected day of the target apartment burglary. The burglary did not take place on this date, and the MSP did not execute the warrants.

Sergeant Russolillo testified at trial that because the MSP intercepted further telephone calls about the defendant and others "going to church" on Sunday, March 28, the MSP decided to assemble near the target apartment on that date. Around 4:15 P.M. on March 28, the assembled MSP team witnessed two individuals arrive near the target apartment in a truck. The individuals proceeded down the driveway toward the target apartment's back entry and, about seven minutes later, proceeded back up the driveway, returning to the truck with their hands in their pockets. After the two individuals drove away, an MSP trooper swept the target apartment for occupants and observed the exterior rear door had been "forcibly opened"; a piece of the wooden doorframe was found lying on the floor. The trooper also observed the apartment was "virtually untouched" apart from the bedroom. In the bedroom, dresser drawers were pulled open, items were lying about, and the mattress had been moved aside. The MSP thereafter obtained a search warrant to search the target apartment and found 900 grams of heroin on a high shelf in the closet of the bedroom.

3. Search warrant for Revere apartment. On May 20, 2010, the MSP executed a search warrant at the Revere apartment. The defendant was arrested outside that apartment while the MSP executed the warrant. At the time of the arrest, the defendant had a key to the Revere apartment, $2,000 in cash, and plastic sandwich bags on his person. During the search of the Revere apartment, the MSP found heroin as well as other items seemingly belonging to the defendant, such as a baby's crib, a baby's birth certificate with the defendant's name, and a photograph of the defendant with a baby. The heroin seized from the Revere apartment was admitted as evidence at trial.

On December 16, 2011, the defendant filed a "renewed motion to suppress" evidence obtained through the electronic surveillance, arguing that had the MSP's applications for the wiretap warrants included the FBI's involvement with the main target of the MSP investigation, the MSP would have been unable to show the necessity requirement of a wiretap pursuant to G. L. c. 272, § 99(E)(3). The defendant's renewed motion to suppress was denied on March 7, 2012.

Discussion. 1. Normal investigative procedures. The defendant first argues that the MSP's application for wiretap authorizations failed to satisfy the requirements under G. L. c. 272, § 99(E)(3), and, thus, the defendant's renewed motion to suppress evidence should have been granted. We disagree.

"[A] warrant authorizing a wiretap may issue only on 'a showing by the applicant that normal investigative procedures have been tried and have failed or reasonably appear unlikely to succeed if tried.' " Commonwealth v. Fenderson, 410 Mass. 82, 83 (1991), quoting from G. L. c. 272, § 99(E)(3). "In meeting its statutory burden of establishing necessity, the Commonwealth need not show that traditional investigative techniques were wholly unsuccessful or that the police had exhausted all other investigative procedures before filing its application for a warrant authorizing a wiretap. The necessity requirement is meant to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime. The affidavit will be adequate if it indicates a reasonable likelihood that normal investigative techniques have failed in gathering evidence, or would fail if attempted. In determining whether the Commonwealth has met its burden, the affidavit should be read in a practical and commonsense manner." Id. at 83-84 (quotations and citations omitted).

Here, the MSP trooper's affidavit in support of the wiretap warrant provided that one of the primary goals of the MSP investigation is the "successful dismantling of ... criminal syndicates" and identifying "persons at higher levels of the organization beyond that of the overall bookmaking operation, people like [the FBI informant]." The motion judge found, and we agree, that "[t]he necessity requirement in G. L. c. 272, § 99 E 3, did not compel the [MSP] to compromise the prosecution of one of their primary organized crime targets by trying to recruit him as an informant." The defendant asserts that it was impossible for the motion judge to reach such a conclusion when the record did not include the degree of cooperation between the FBI and the MSP or the agreement between the FBI and the FBI informant, and that it was possible that "the FBI informant would have given [the MSP] the unique and ground-breaking potential to crack the case wide open without the use of wiretaps." However, it is clear that attempting to use the FBI informant as an informant for the MSP investigation would have thwarted the overall goal of the MSP investigation, that is, to prosecute and dismantle the FBI informant's organization.

Additionally, the affidavit further explained that other normal investigative procedures had been used and exhausted. For instance, other MSP informants used for the investigation were extremely fearful of the FBI informant. The affidavit provided that one informant known as CI-3 "firmly believes" that the FBI informant "would kill [CI-3] were [the FBI informant] to discover that [CI-3] has provided information to [the MSP]." Like the informants in Fenderson, the MSP informants here were unwilling to testify against the defendant and other suspects in the MSP investigation. See Fenderson, 410 Mass. at 84. Moreover, the affidavit also explained that these MSP informants were "unable to penetrate into the organization to any significant degree" and that "attempts to have the informants further penetrate this organization as agents of the [MSP] might place them at substantial risk of their roles as informants being discovered." We agree with the motion judge here that the MSP conducting any further normal investigative procedures would not only have been unlikely to succeed but would likely have compromised the overall goal of "apprehending and prosecuting all the members of [the] organization."

2. Challenged evidence and jury instruction. The defendant next challenges the introduction of evidence found on the defendant and at the Revere apartment during the execution of a search warrant. The defendant argues that the evidence was improperly admitted because (1) it did not pertain equally to all coventurers and therefore could not furnish a motive and intent for the burglary, and (2) its probative value was outweighed by the possibility of unfair prejudice.

Massachusetts Guide to Evidence § 404(b) (2017) provides that other acts are "not admissible to prove a person's character" but such evidence "may be admissible for another purpose, such as proving motive." Here, the items seized from the Revere apartment, including the heroin, were admitted in evidence to show the defendant's motive to commit the burglary, which involved a scheme to steal heroin. Contrary to the defendant's argument, such evidence need not "pertain equally to all coventurers." "There is no requirement that joint venturers share a motive for the success of the venture. Motive is not an element of proof under the theory of joint venture." Commonwealth v. Carroll, 439 Mass. 547, 553 (2003).

Additionally, the probative value of the evidence was not outweighed by the possibility of unfair prejudice, nor did it, as the defendant contends, divert "the attention of the jury from the crime immediately before it." As stated previously, the evidence was admitted solely to show the defendant's motive to participate in the crime. The defendant fails to provide us with any persuasive argument on how the defendant was unfairly prejudiced and how any such prejudice outweighed the probative value of providing the jury with the defendant's potential motive. Moreover, the trial judge carefully provided the jury with detailed instructions on how to weigh this particular evidence in their deliberations. At the time the evidence was introduced, the trial judge gave the following instruction:

"This evidence concerning the narcotics alleged to have been recovered in that apartment in Revere is admitted only for a very limited purpose .... [I]t is for you to decide what evidence is credible and what evidence is believable. That evidence has been admitted for the limited purpose regarding the Commonwealth's theory of the case, being that the object of the breaking and entering was the theft of illegal narcotics. This evidence is admitted only on the issue of the motive and intent of the defendants and for no other purpose.... You must consider these items only for the issue of motive and intent and for no other purpose, and I'm instructing you strongly on that point."

He gave a similar instruction during the final jury charge. The record reflects that the trial judge appropriately balanced the probative weight of the evidence with the risk of unfair prejudice, and determined that the evidence was admissible for the limited purpose of showing the defendant's motive; the judge did not abuse his discretion.

The defendant also argues that the trial judge erred in not providing the jury with an instruction on constructive possession, and that the limiting instructions that were provided contained an impermissible presumption linking the defendant to the admitted evidence, violating the defendant's due process rights. We disagree.

"Due process requires that the government prove beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged. Instructions to the jury that would lead them to believe otherwise are constitutional error." Commonwealth v. Cruz, 456 Mass. 741, 752 (2010) (quotation omitted). Here, the judge's instructions did not contain an impermissible presumption that the defendant was linked to the admitted evidence, rather, the judge's instructions were clear that the jury were "to determine the value that any such evidence should be given" and that the jury were not required to find that the defendant had possession of the heroin in the Revere apartment. The trial judge stated, "[N]either [the defendant] nor [the codefendant] are charged here before you with any issue of possession of that narcotics. It's for you to determine the value that any such evidence should be given but you must consider it only for the limited purpose regarding intent and motive and not consider it otherwise." The defendant, again, provides us with no persuasive argument or case law that would lead us to conclude that the judge's jury instructions created an impermissible presumption that the defendant was linked to the Revere apartment heroin.

3. Defense counsel's questioning of Pimental. The defendant next argues that the trial judge incorrectly precluded defense counsel's cross-examination of Altagracia Pimental based on the attorney-client privilege. The defendant contends that cross-examination concerning "false representations [Pimental] may have made to her attorney" should have been permitted because it satisfied the crime-fraud exception to the attorney-client privilege. We disagree.

The defendant's questioning regarding Pimental's false representations to her attorney started with the defendant asking Pimental if she was aware that her attorney had made certain statements at Pimental's bail hearing. When Pimental answered that she was not present at the bail hearing either in person or on videotape, defense counsel changed the topic of questioning. Such change in questioning was not, as the defendant contends, due to the trial judge's previous sidebar comment that "my attena[e] are up a bit on your questioning, ... because ... [Pimental is] entitled not to have the attorney/client privilege breached." Rather, defense counsel changed the line of questioning because there was nothing further to inquire about Pimental's knowledge of what was said at the bail hearing since she had not been present.

4. Sergeant Russolillo's testimony. Lastly, the defendant argues that the trial judge erred in allowing Sergeant Russolillo's testimony about the meaning of "going to church" because such testimony does not qualify as expert or lay opinion.

Sergeant Russolillo testified that the MSP had intercepted several telephone conversations where the suspects "spoke about again going to church" and that because of those statements, Sergeant Russolillo "believed what was going to happen on the 21st would happen on the 28th." The defendant maintains that this testimony was Sergeant Russolillo's lay opinion interpreting the phrase "going to church" to mean a conspiracy to commit a burglary. However, such testimony was provided to show Sergeant Russolillo's state of mind and why he decided to assemble a MSP team outside the apartment on March 28, 2010. "Where one's state of mind is important, the person may himself testify about it." Carriere v. Merrick Lumber Co., 203 Mass. 322, 327 (1909). The trial judge did not abuse his discretion in allowing such testimony.

Judgment affirmed.

      According to the testimony of Altagracia Pimental, one of the residents of the target apartment, on that date, there was an estimated one-half kilogram of heroin under a mattress in the apartment and about $15,000 in cash in a drawer.

      The Commonwealth concedes that Sergeant Russolillo's testimony was not admissible as expert opinion.


text:
    S.W. v. R.D.
    17-P-206
    Appeals Court of Massachusetts.
    Entered: February 14, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, R.D. or father, appeals from a modification judgment of the Probate and Family Court that ordered him to pay current and retroactive child support to the plaintiff, S.W. or mother, for the parties' two youngest daughters. R.D. also was required to pay S.W.'s legal costs and fees incurred in connection with her complaint for modification. A subsequent motion by R.D. to vacate the modification judgment was denied. On appeal, R.D. challenges the sufficiency of the notice of the hearing at which the judgment entered. He also contends that the child support order and the award of attorney's fees were not warranted. We affirm.

Background. We summarize the relevant factual and procedural history from the record. The parties, who are not married, have four children. On or about May 2, 2005, a judgment entered requiring the father to pay child support to the mother in the amount of $235 per week (support judgment). The parties subsequently reconciled prompting S.W. to file a complaint for modification seeking dismissal of the support judgment. Although the support judgment was dismissed on March 5, 2007, the father continued to pay child support until September, 2014, just before the youngest daughter's eighteenth birthday.

Soon thereafter, on January 15, 2015, the mother filed a complaint for modification seeking to reestablish R.D.'s obligation to support their two youngest daughters. R.D. was served with the summons and complaint on February 10, 2015, at his last and usual place of abode, and a pretrial conference was scheduled for September 15, 2015. When the father failed to appear, the pretrial conference was rescheduled for January 27, 2016. R.D. again failed to appear for the pretrial conference and, by order dated January 28, 2016, a pretrial conference was scheduled for June 9, 2016. In relevant part, the order provides as follows:

"2. Father [R.D.] shall attend the Pre-Trial Conference, prepared with a written memorandum and a complete and accurate, signed Financial Statement as instructed in the separate Notice and Order for same that was mailed to him by the Court. If Father fails to attend, his obligation for support, maintenance and education for [the two daughters] may be determined in his absence based upon his 2015 earned income as stated in the subpoenaed Boston University records obtained by Mother's attorney."

R.D. did not attend the hearing on June 9, 2016. The judge proceeded as provided in the pretrial notice and order and called the modification complaint for trial. The judge found that both daughters were full-time college students domiciled with the mother and principally dependent upon her for their support. The judge calculated S.W.'s gross weekly income at $975, the amount reflected on the mother's financial statement dated June 8, 2016. The judge imputed a gross weekly income of $1,322 to the father "based upon his 2015 earned income as stated in the subpoenaed Boston University records" from his employer. The judge then determined that R.D.'s child support obligation for the two daughters was $333 per week and ordered R.D. to pay current child support to the mother in that amount per week forthwith, and retroactively to the week ending February 13, 2015. As a result of the retroactive application of the order, the father owed the mother an additional $23,310. The judge also ordered R.D. to pay S.W.'s legal costs and fees in the amount of $3,500.

About three weeks later, on June 28, 2016, the father filed a motion to vacate the judgment, asserting, with no supporting affidavit, that he did not receive notice of the hearing that had been scheduled for June 9, and that the amount of income imputed to him was incorrect because the judge failed to consider (1) that he pays health insurance for the daughters, and (2) that he has child support obligations in connection with another child.

A hearing on R.D.'s motion to vacate the judgment was held on July 13, 2016. Among other arguments, the father claimed that he was entitled to relief because he had not received notice of the modification proceedings. In support of this claim R.D. relied on a letter (which he apparently attached to his motion) that had been sent to him and then returned to the court. He also pointed to several instances wherein his name had been misspelled on proofs of service. The judge rejected this argument on two grounds: first, R.D. had not complied with Standing Order 2-99; and second, R.D. had failed to provide sufficient evidence of lack of notice. As the judge explained "[t]he attachment (letter) that was returned is from 2015. None of the several mailings to the same address thereafter have been returned, and it is the address now stated by recipient as accurate."

Discussion. We begin by addressing the mother's claim that the appeal is moot. It is not. Although the parties appear to have settled the issues of arrearages and ongoing child support of the youngest daughter by entering into a stipulation which was incorporated into a judgment of modification, the questions regarding notice and whether the award of child support and attorney's fees was warranted remain unresolved. We therefore proceed to address the merits of the father's claims.

1. Notice. R.D. claims that he was denied due process of law because he did not receive notice of the pretrial conferences held on January 28 and June 9, 2016, or the subsequent trial held after he failed to appear on June 9, 2016. In support of his claim, R.D. points to a single letter that was returned to the court on March 30, 2015, as undeliverable, and to several minor misspellings of his name in various court documents. The judge concluded that R.D.'s evidence of lack of service was insufficient. We agree.

The judge correctly found that the return of one letter to the court approximately one year before the date of the pretrial conference at issue did not demonstrate that the father had not received sufficient notice of the proceedings. Moreover, R.D. never provided an affidavit or a sworn statement in support of his claim. Finally, the record supports a finding that the father received correspondence from the mother's attorney, dated February 2, 2016, to which the pretrial conference notices and the January 28, 2016, order were attached. In these circumstances, we think it is clear that the father is not entitled to relief on the basis that he did not receive proper notice of the proceedings.

2. Child support calculations. Next, the father argues that the judge abused her discretion in awarding child support because she did not consider his responsibility to provide for another child, his voluntary expenses, or the fact that he provides health insurance for the daughters. However, no evidence of these expenses was before the judge, and the father never filed a signed financial statement as required by the January 28, 2016, pretrial order before judgment entered. Absent a statement of his current income, the judge properly used R.D.'s 2015 earned income to calculate his child support obligations. We will not second-guess the judge's calculations where R.D. "failed to provide the judge with evidence from which she might have arrived at a different figure." M.C. v. T.K., 463 Mass. 226, 240 (2016).

3. Attorney's fees. R.D. claims error in the judge's award of attorney's fees to S.W. in the amount of $3,500. Such an award rests in the judge's sound discretion. See M.C. v. T.K., supra at 242. The judge's reasons for awarding attorney fees are supported by the record and, therefore, there was no abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

4. Motion to vacate. R.D.'s argument with respect to the denial of his motion to vacate barely rises to the level of appellate argument, see Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In any event, in light of R.D.'s failure to engage in the proceedings until after judgment had entered, despite being aware of them, the judge committed no abuse of discretion by denying the motion.

5. The mother's request for appellate attorney's fees and costs. We agree with S.W. that she is entitled to an award of appellate attorney's fees and costs. Thus, in accordance with Fabre v. Walton, 441 Mass. 9, 10-11 (2004), S.W. may submit an application for fees and costs with supporting documentation within fourteen days of the issuance of the rescript. R.D. shall have fourteen days after the application is filed to respond.

Judgment affirmed.

Order denying motion to vacate judgment affirmed.

      Both R.D. and S.W. have filed a supplemental appendix without prior court approval as required by Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). The mother has filed a motion to expand the record on appeal to include the documents in her supplemental appendix; no such motion has been made by R.D.. See International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 847 (1983) ("A pro se litigant is bound by the same rules of procedure as litigants with counsel"). The mother's motion is allowed, and we also consider R.D.'s supplemental appendix for the purpose of setting forth the facts.

      R.D. told the judge that (1) he did not stop his child support payments because the youngest child turned eighteen but because S.W. moved and would not give him her address; (2) S.W. had lied on her financial statement about her income and payment of health insurance; and (3) both children were over the age of eighteen and the judge failed to take into account their earnings or income in fashioning an appropriate child support order.

      R.D.'s motion indicates that the letter, which was apparently returned to the court as undeliverable, was submitted as an attachment to the motion. R.D.'s appendix contains a copy of the motion, but there is nothing attached to it.

      Probate and Family Court Standing Order 2-99 applies to motions "for Relief from Judgment and Order (Rule 60)." R.D. did not comply, inter alia, with subparagraph (a)(1) of the Standing Order, which provides in pertinent part: "The moving party shall serve with the motion a copy of the order of judgment at issue and a concise statement of facts and law in support of why the motion should be granted. The statement shall be ... signed under the penalties of perjury."

      We note that the proper way to raise mootness is by affidavit, Doe v. Superintendent of Schs. of Worcester, 421 Mass. 117, 123 (1995), which S.W. has not done.

      While there is evidence in the reply brief appendix that R.D. contributed to the support of his child from another relationship, there is no evidence that these documents were before the judge. The judge found that the documents R.D. did provide to prove his obligation to support the other child were of questionable authenticity.

      R.D. did file a statement on July 13, 2016, the same day of the hearing on his motion to vacate the modification judgment.

      The pretrial notices and orders sent to and received by R.D. explicitly state that a failure to appear will result in the imposition of sanctions.