text:
    ADOPTION OF CASSIUS (and two companion cases ).
    18-P-15
    Appeals Court of Massachusetts.
    Entered: July 24, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Adoption of Amanda and Adoption of Stephanie. The children's names are pseudonyms.

   This appeal arises from the decrees issued on three petitions for private adoption brought pursuant to G. L. c. 210, §§ 3 and 6. The petitions concern three children: Cassius, born in January, 2006; Amanda, born in February, 2007; and Stephanie, born in November, 2010. The petitioners, the children's mother and her husband, the children's stepfather, sought decrees terminating the parental rights of the children's father and dispensing with the need for the father's consent to the adoption of the children by the stepfather. Following a trial at which the petitioners, the father, and the maternal grandmother testified, a judge of the Probate and Family Court determined that the father was currently unfit to parent the children and that it was in the best interests of the children to be adopted by the stepfather. As a result, the petitions were granted and decrees entered accordingly. The father appealed. He later obtained a stay, and he then filed a motion for a new trial in which he claimed that trial counsel was ineffective. The motion was denied by the trial judge, who also denied a motion for reconsideration. The father's appeal from the denial of those motions was consolidated with his appeal from the decrees. For the reasons that follow, we affirm the decrees and the denial of the motions for a new trial and reconsideration.

Background. We summarize the judge's findings of fact, reserving additional facts gleaned from the record for later discussion. The mother and father were married in 2005, and divorced in 2012. Their marriage was neither healthy nor happy. Although the father worked long hours, the family struggled financially. When the father was home, he spent many hours playing video games, to which he was addicted. Cassius, Amanda, and Stephanie were born during the course of the marriage. In addition, the mother's daughter from a previous relationship, Catherine, lived with the family. In 2013, a jury convicted the father of two counts of indecent assault and battery on Catherine. He subsequently pleaded guilty to additional criminal offenses, including rape of a child. At the time of trial, the father was incarcerated at the Massachusetts Treatment Center at Bridgewater. See note 8, infra.

The judge found that even though the father was incarcerated, and despite having been awarded joint legal custody of the children after the divorce, the father did not seek to have contact with the children or participate in decisions concerning them. While the mother initially brought the children to visit the father in prison, the father did not pursue any legal remedy to maintain a relationship with the children when she stopped doing so. By contrast, the stepfather has a good relationship with the children and treats them with care. The judge also found that the petitioners are meeting the children's financial and emotional needs.

Discussion. 1. Father's direct appeal. At the close of the petitioners' case, the father's counsel orally moved to dismiss the petitions, claiming that the petitioners had failed to meet their burden of proving current parental unfitness by clear and convincing evidence. The motion was denied. On appeal, the father challenges this decision and again argues that the evidence of his current unfitness was insufficient.

As the father correctly notes, the burden of proving current parental unfitness is always on the petitioner. See Adoption of Larry, 434 Mass. 456, 470 (2001). That burden was amply met in this case. It suffices to note the extent to which the father neglected and abused the children when he was in the home. The mother's testimony established that the father's relationship with the children lacked empathy and was devoid of any understanding of their needs. She provided numerous instances of the father's physical and emotional abuse of the children, and she described the lasting negative effects of the father's behavior on the children's health and well-being.

This same evidence supports the judge's conclusion regarding the father's current unfitness to parent the children. The judge was entitled to rely on the father's prior behavior in determining current parental unfitness. See Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018). Furthermore, it was undisputed that the father absented himself from the children's lives for a lengthy period of time as a result of his intentional criminal conduct toward Catherine. The judge also found that the father's failure to take responsibility for his criminal conduct "places any child in the family at risk of at least neglect if not abuse." In addition, the judge noted that the father had taken no steps to enforce his legal rights to the children and had not provided any financial support to the children since 2013. Lastly, as the judge correctly observed, as a result of his convictions, the father cannot assume the duties and responsibilities required of a parent for a significant period of time. See Adoption of Olivia, 53 Mass. App. Ct. 670, 678 (2002) (decrees terminating father's rights affirmed where father was incarcerated and "there was no reasonable expectation, given the children's age, that he would be able to provide proper care or custody within a reasonable time").

We are not persuaded that the judge erred in issuing decrees dispensing with the need for the father's consent to the adoption of the children by the stepfather. "Here we have a case where the children are finally in [a] stable situation[ ]." Adoption of Nancy, 443 Mass. 512, 517 (2005). The children's "various personal and education issues" are the subject of "appropriate interventions" by the petitioners, with whom, as the father concedes in his brief, the children have an "established life." The father further acknowledges that the children have formed strong bonds with the stepfather. "The children's rights to a stable and safe environment" are "at least equal" to the father's interest in preserving his parental rights. Adoption of Olivia, supra at 677. In this case, we agree with the judge that these children deserve permanence and stability, "which will be eased by termination of their father's rights." Adoption of Nancy, supra. We note the judge properly considered the statutory factors set forth in G. L. c. 210, § 3(c ), and found factors (ii), (vi), (vii), (viii), (ix), (x), (xi), (xii), and (xiii) to be applicable to his decision to terminate the father's parental rights. His findings are supported by the record, and they constitute the clear and convincing evidence required to dispense with the need for parental consent to adoption. See Adoption of Olivia, supra at 678.

2. Motion for a new trial. As indicated, the father filed a motion for a new trial on the basis of ineffective assistance of trial counsel, claiming that his attorney failed to (1) prepare a defense, (2) prepare him to testify, (3) introduce his treatment records or his pro se complaint in which he sought contact with the children, and (4) consult with an expert in forensic psychology. Additionally, the father faulted trial counsel for not moving to reopen the evidence or to request a stay of entry of the decrees.

The motion, which the judge treated as one filed pursuant to Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974), was supported by affidavits from the father and appellate counsel, records from the Massachusetts Treatment Center at Bridgewater which documented the father's participation in treatment while incarcerated, a copy of a complaint for modification and a motion for temporary visitation and communication (complaint) the father attempted to file pro se in which he sought, among other things, visitation with the children, and correspondence with the clerk's office related to the complaint. The father also submitted a report prepared by Dr. Leonard Bard, a nationally recognized expert in the field of forensic psychology, who was retained by appellate counsel to evaluate the father's risk of reoffending. After interviewing the father for two hours and reviewing (1) police reports related to the father's criminal conduct, and (2) the father's treatment records, Dr. Bard "employed an adjusted actuarial approach to the issue of risk assessment" and concluded that the father "appears to be at low risk to re-offend sexually." The father requested an evidentiary hearing on his motion.

The judge reviewed the father's claim of ineffective assistance under the familiar two-prong test set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). After conducting "a side-by-side analysis of the file and particularly the findings of fact," and, relying on his memory of the trial and pretrial proceedings, the judge concluded that trial counsel was not ineffective primarily because none of the evidence offered in support of the motion "would ... have altered the outcome." As the judge explained, even if he had been made aware of the father's attempt to have contact with the children by filing a complaint, his conclusion regarding unfitness would not have changed. The judge further concluded that evidence which, if believed, demonstrated that the father has a low risk of reoffending would have had no bearing on his analysis because the father's criminal history "is less a question of father potentially reoffending than what has been the impact upon the children from his conduct." The judge also rejected the father's claim that an expert in forensic psychology, like Dr. Bard, would have helped him demonstrate at trial that he had taken responsibility for his sexual abuse of Catherine. We agree with the judge that this is a dubious assertion, especially in light of the fact that the father reported to Dr. Bard that then eight year old Catherine initiated sexual contact with him. As regards the failure to introduce the father's treatment records, we again agree with the judge that, to the extent the decision not to introduce the records reflects a trial strategy, it was a good one. The treatment records support a conclusion that the father lacks insight into his behavior.

We have conducted a careful review of the record and conclude that the judge did not abuse his discretion in denying the motion or declining to hold an evidentiary hearing. See Knott v. Racicot, 442 Mass. 314, 326 (2004) (judge not required to hold evidentiary hearing on rule 60 [b] motion); DeMarco v. DeMarco, 89 Mass. App. Ct. 618, 622 (2016) (judge's ruling on rule 60 [b][6] motion reviewed for abuse of discretion).

3. Conclusion. The decrees terminating the father's parental rights to Cassius, Amanda, and Stephanie, and dispensing with the need for his consent to their adoption, are affirmed. The orders denying the father's motions for relief from judgment and for reconsideration are affirmed.

So ordered.

Affirmed

      A pseudonym.

      The judge found that the father was incarcerated for "a 2013 indecent assault and battery on" Catherine. However, the docket sheet from the father's criminal case, which was introduced in evidence, indicates that a jury convicted the father of two counts of indecent assault and battery on a child and that he pleaded guilty to four counts of rape and abuse of a child. On the indecent assault and battery convictions, the father was sentenced to serve two to three years' imprisonment in a State prison followed by four years of probation. On the remaining convictions, the father was sentenced to serve three to five years' imprisonment in a State prison, from and after the two to three year sentence of incarceration, followed by five years of probation. Thus, the father received a cumulative sentence of from five to eight years' incarceration followed by five years of probation.

      The father's claim that the judge shifted the burden of proof to him requires little discussion. The judge did not call upon the father to prove anything. To the contrary, the judge correctly understood that the petitioners could prevail only if they established the father's current unfitness.

      The mother testified that during the marriage the father would spend time with his friends instead of coming home after work. When he was home, he would play video games and have almost no interaction with the children. The children "wouldn't be changed" and would be "locked in their bedrooms" when the mother left them in the father's care, and the father "continuously" used his cellular telephone (cell phone). After he was incarcerated, the mother discovered two pornographic videos on the father's cell phone, which the mother determined had been recorded from Catherine's television and the family's computer. In one of the videos the children can be heard in the background "crying and banging on the door." The mother testified that the father hung pornographic pictures in the garage to which the children had regular access, that the father missed Amanda's first birthday party because he was playing video games, and that, while Amanda was toilet training, the father would get aggravated with her for soiling her pants and would "throw" her into a cold shower. As a result, Amanda "will not get into a shower without knowing what the temperature is and feeling it a hundred times." The mother testified that, "emotionally, these children have been through hell." Amanda "reacts badly" when she hears the father's name and "has severe flashbacks," Cassius "had an outburst" and broke the bathroom door when he heard that the mother was attending court, and both Cassius and Amanda have been diagnosed with posttraumatic stress disorder due to "trauma [that] occurred before the age of six."

      Contrary to the father's assertion, the judge did not unfairly penalize him for his sexual abuse of Catherine. The judge's determination of unfitness was not based solely on the father's criminal convictions. Instead, the judge considered it significant that, by virtue of his sentence, see note 3, supra, the father will not have the "ability, capacity, [or] readiness" to parent his children for at least ten years. Adoption of Nancy, 443 Mass. 512, 515-516 (2005), quoting from G. L. c. 210, § 3(c).

      Upon his release, the father will be on probation, a condition of which is that he "have no unsupervised direct or indirect contact with any child under the age of 16 in any manner, including physical contact, verbal contact, or contact by electronic means."

      The father also claims that the judge's erroneous findings that he was arrested and incarcerated in 2013, instead of 2012, and that he is incarcerated at "MCI Bridgewater" instead of the Massachusetts Treatment Center at Bridgewater, demonstrate that the judge failed to give the evidence close attention. We disagree. These minor errors do not detract from the judge's ultimate determination.

      Although the judge made no finding on the issue, the mother testified that the family struggled financially and moved five times in six years while the father was in the home.

      Although the judge did not make a specific finding to this effect, the mother testified that the children identify the stepfather as their father and that Stephanie, who was two when the father was arrested, "has always known [the stepfather] as her father and no other father."

      "We look to rule 60(b) by analogy and as a cogent standard because the Massachusetts Rules of Civil Procedure do not apply to proceedings to dispense with consent to adoption." Adoption of Rory, 80 Mass. App. Ct. 454, 455 (2011).

      The complaint was filed on August 20, 2013, while the father was incarcerated at MCI-Norfolk. The father sought monthly visitations at the prison, written communication, and weekly telephone calls with the children. The father marked the motion for a hearing six days later. On August 22, 2013, process was returned to the father because (1) the hearing date he selected was less than seven days away, (2) the father did not include his telephone number, and (3) the father did not fill in the caption on the summons. No further action appears to have been taken with respect to the complaint.

      The Saferian test requires a judge to first examine "whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer." 366 Mass. at 98. Second, the judge must examine whether such behavior "likely deprived the defendant of an otherwise available, substantial ground of defence." Ibid. "The Saferian test for evaluating the effectiveness of counsel is an appropriate standard to apply in care and protection proceedings."Care & Protection of Georgette, 439 Mass. 28, 33 (2003).

      The judge stated: "The father assaulted a step-sibling of these children. Their lives have been unalterably changed as a result of his criminal conduct."

      The father told Dr. Bard that he was tucking in Catherine and had his hand on her stomach when "she pushed his hand downward and he did not do or say anything. This became their 'routine' for the next month and he was able to utilize cognitive distortions to 'allow' himself to continue those behaviors. He began to touch her vaginal area and engaged in 'clitoral stimulation' although he denied ever penetrating her with his fingers. He then began to perform oral sex on her, approximately once a month, and continued that pattern for a period of time." The father denied ever having her touch his penis or exposing his penis to her.

      The records contain notations by the instructors encouraging the father to "develop an insightful understanding of himself" and "gain additional insight." Following a class he completed eight months before trial, the father was encouraged to "continue addressing his use of limited thinking patterns."

      The remaining alleged shortcomings of trial counsel have not been overlooked. We conclude that they do not amount to serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer, and, therefore, do not provide a basis for granting a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Paul C. BROWN.
    17-P-384
    Appeals Court of Massachusetts.
    Entered: July 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Paul C. Brown, was convicted by a jury of assault and battery to collect a loan in violation of G. L. c. 265, § 13C, and breaking and entering in the daytime with intent to commit a felony in violation of G. L. c. 266, § 18. On appeal, he contends that there was insufficient evidence to support his conviction of assault and battery to collect a loan and that both judgments should be vacated because the Commonwealth made improper statements during its opening statement and closing argument. We vacate the judgments.

Sufficiency of the evidence of assault and battery to collect a loan. Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence was sufficient to show the following. One week prior to the incident giving rise to the convictions, Tyler Pina stole a bag of marijuana from the defendant. The defendant "called his friends from Southie to come up and deal with Tyler." On the day of the incident, the defendant met with Mark Dube in the defendant's apartment and discussed the theft. Together, the pair went to a neighboring apartment in the same apartment complex, which is where Tyler had been staying. Dube pounded on the apartment door. When Tyler's brother, Brett, opened it, Dube knocked the door off its hinges and proceeded to severely beat Brett. Meanwhile, the defendant watched the beating and "knocked some things around." Dube and the defendant then retreated to the defendant's apartment where Dube washed Brett's blood from his body.

Contrary to the defendant's argument, a jury could reasonably have concluded, on the basis of this evidence, that the defendant knowingly participated in the assault and battery with the requisite intent to commit the crime. Commonwealth v. Zanetti, 454 Mass. 449, 454, 468 (2009). As the Commonwealth concedes, however, there was no evidence of a loan. Cf. Commonwealth v. Thompson, 56 Mass. App. Ct. 710, 712 (2002).

Sufficiency of the evidence of breaking and entering in the daytime with intent to commit a felony. Citing Commonwealth v. Lowe, 21 Mass. App. Ct. 934, 935 (1985), the Commonwealth contends that despite its concession that there was no evidence of a loan, the conviction of breaking and entering with intent to commit a felony can be upheld. Here, however, there was no evidence that the defendant intended to collect a loan. Cf. Thompson, 56 Mass. App. Ct. at 712.

The Commonwealth alternatively maintains that the defendant's conviction can be affirmed because there was sufficient evidence that the defendant intended to commit felonies other than assault and battery to collect a loan -- namely, larceny in a building, malicious destruction of property over $250, and assault and battery by means of a dangerous weapon. None of these alternative felonies were presented to the jury. Instead, the Commonwealth's theory was that assault and battery with intent to collect a loan was the intended felony. "Arguments on appeal must be based on the theories on which the Commonwealth presented the case at trial." Commonwealth v. Lee, 460 Mass. 64, 67 n.3 (2011). See Commonwealth v. Claudio, 418 Mass. 103, 117 n.12 (1994) (felonies that neither were charged nor the basis for the Commonwealth's theory at trial "may not serve as the basis for sustaining a verdict on appeal").

Opening statement and closing argument. The defendant next maintains that the prosecutor's opening statement improperly forecast that Taunton police Officer Gerard Roy would identify Dube as the man that the defendant called to avenge the marijuana theft. Roy testified that the defendant admitted that he had "called his friends from Southie to come up and deal" with Tyler's theft. In response to a question as to whom the defendant called in particular, Roy stated that he "had the name of the other suspect ... Mark Dube." While Roy's testimony was not exactly as predicted by the prosecutor, it was sufficient to show that the prosecutor's expectation of what the evidence would establish was "reasonable and grounded in good faith." Commonwealth v. Fazio, 375 Mass. 451, 456 (1978).

The defendant also quarrels with the prosecutor's statements in his opening that the defendant and Dube beat up "poor Brett Pina," and that they "beat[ ] him senseless," as well as the prosecutor's statement in closing that the defendant and Dube gave Brett the "beating of a lifetime." These statements, however, tracked the evidence, which included, among other things, (i) Brett's testimony about the beating and the extent of his injuries, (ii) photographs of Brett's injuries, (iii) the defendant's testimony that Brett was beaten "like [the defendant had] never seen any man get beat before in [his] life," and (iv) the testimony that Brett was apparently the mistaken target of the beating. Finally, the defendant contends that the prosecutor's use of the term "coward" to refer to the defendant was improper. Here, however, the prosecutor mirrored the precise language that the defendant had used to refer to himself and his conduct during Brett's beating. While the prosecutor's description of the etymology of the word went beyond the defendant's testimony, "[t]he prosecutor's remarks were characteristic of enthusiastic rhetoric, strong advocacy, and excusable hyperbole, and did not cross the line between fair and improper argument." Commonwealth v. Lyons, 426 Mass. 466, 472 (1998) (quotation omitted).

Conclusion. The judgments are vacated. So much of the verdict as finds the defendant guilty of the lesser included offenses of assault and battery and breaking and entering with intent to commit a misdemeanor, are to stand; the remaining portions (to collect a loan and with intent to commit a felony) are set aside. See Commonwealth v. Labadie, 467 Mass. 81, 88 (2014). The conviction of the lesser included offense of assault and battery is remanded for resentencing. The conviction of the lesser included offense of breaking and entering with intent to commit a misdemeanor is also remanded for resentencing, unless the Commonwealth elects to retry the case based on the breaking and entering with intent to commit a felony, with the benefit of the judge's clarification of the proper jury instructions as to the alleged intended felony. See Commonwealth v. Hill, 57 Mass. App. Ct. 240, 249 (2003).

So ordered.

Vacated and remanded

      Because Tyler Pina and Brett Pina, see infra, share a surname, we refer to each by his first name.

      Because we conclude that the conviction of assault and battery to collect on a loan must be vacated on this basis, we need not address the defendant's argument that the jury instruction was erroneous.

      Following oral argument, we requested that the parties submit supplemental memoranda to address the defendant's conviction of breaking and entering with intent to commit a felony in view of the Commonwealth's concession that there was no evidence of a loan.

      The Commonwealth also cites Commonwealth v. Sanchez, 70 Mass. App. Ct. 699, 702 (2007), quoting from Commonwealth v. Moore, 50 Mass. App. Ct. 730, 733 (2001) ("The jury's apparent conclusion that 'there was insufficient evidence that the defendant assaulted and battered [the victim] ... did not [necessarily] preclude a finding that he had the requisite intent to do so' ").

      The only guidance provided to the jury regarding the general definition of a felony was that felonies are "offenses for which a person may be sentenced to state prison."

      In any such retrial, the Commonwealth would be limited to an alleged intended felony for which the evidence was sufficient in the first trial. Commonwealth v. Fragata, 480 Mass. 121, 129-130 (2018).


text:
    COMMONWEALTH v. Olen PETERSON.
    17-P-479
    Appeals Court of Massachusetts.
    Entered: July 30, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of one count of rape of a child and three counts of indecent assault and battery on a child. Asserting three trial errors, the defendant asks us to reverse his convictions and grant him a new trial. We affirm.

Background. The defendant and the victim lived in the same three-level home with other members of their family. The defendant was married to the victim's adoptive aunt. The defendant sexually assaulted the victim intermittently throughout much of her childhood, beginning when the victim was seven years old and continuing until she reached high school age and spent less time at home. The victim did not report the abuse to police until she was twenty-five years old.

The jury heard first complaint testimony from the victim's mother, who testified that the victim told her that "she was sleeping and she felt something touch her and when she opened up her eyes, it was [the defendant]." She further testified that she and her sister -- who was married to the defendant -- brought the victim and the defendant to the basement to determine what happened. The defendant's wife asked him about the victim's accusations, and the victim's mother remembered him denying it and "swear[ing] on his mother's life" that he did not assault the victim. The defendant's wife, however, testified to the following after the accusation: "He was explaining. He said he did not, but he was trying to explain, and everybody was speaking at the same time because, like I said, it was very heated. I was speaking, he was trying to explain, my sister was speaking. It wasn't something that you just hear and you just - - everybody was just quiet and just say yes, no, yes, no. Everybody was trying to give their insight and what they've heard and what they have to say, so everybody -- it was pretty riled up, pretty much, put it that way." The defendant's wife further testified that, after she asked the victim if she and the defendant had sex, the defendant "was trying to explain to me. He did not say yes, no. He was trying to give me an answer, and [the victim's mother] was speaking. It was heated."

Prior to trial, the Commonwealth successfully moved in limine to allow the above exchange to be elicited and to argue that the defendant's "equivocal" responses amounted to an adoptive admission by silence. The defendant asserts that ruling, and the subsequent admission of that testimony over the defendant's objection, was error.

Another alleged error concerns jury voir dire, when the judge sua sponte questioned the Commonwealth regarding its use of two peremptory challenges, one to exclude a Hispanic male, the second to exclude a black male. The Commonwealth responded that the basis for the two challenges was that the first man had been arrested in the past, and the second man "indicated that he wouldn't believe the child unless there was medical evidence [connected] to the child." The judge ultimately allowed the second peremptory challenge, but noted that the last two were "to men of color" and that he was allowing the peremptory challenge, "but not without concern."

Discussion. As stated above, the defendant asserts three errors on appeal. First, he argues that the judge failed to follow the protocol set forth in Commonwealth v. Soares, 377 Mass. 461, 490-493 (1979), when addressing the Commonwealth's peremptory challenges, thereby creating a substantial risk of a miscarriage of justice. Second, he contends the judge erred in allowing the Commonwealth to elicit testimony to be used to argue the defendant's response to the accusations against him was tantamount to an admission by silence. Finally, he asserts that a substantial risk of a miscarriage of justice was created when the Commonwealth, during its closing argument, referenced a fact that was outside the evidence.

a. Peremptory challenges. "Peremptory challenges cannot be used 'to exclude members of discrete groups solely on the basis of bias presumed to derive from that individual's membership in the group.' " Commonwealth v. Rodriguez, 431 Mass. 804, 807 (2000), quoting from Soares, supra at 488. Race is one of those discrete groups. Soares, supra at 489. "Peremptory challenges are presumed to be proper, but that presumption may be rebutted on a showing that (1) there is a pattern of excluding members of a discrete grouping and (2) it is likely that individuals are being excluded solely on the basis of their membership in that group." Commonwealth v. Oberle, 476 Mass. 539, 545 (2017), citing Commonwealth v. Issa, 466 Mass. 1, 8-9 (2013). "The issue of the improper use of peremptory challenges may be raised by the party opposing the challenge or, sua sponte, by the trial judge." Commonwealth v. Maldonado, 439 Mass. 460, 463 (2003). If such a pattern is found by the judge, the party exercising the challenge must establish a "group-neutral" explanation for the challenge. Oberle, supra. The judge must then consider that party's response to determine whether the reasoning is "adequate" and "genuine." Ibid. "A trial judge has considerable discretion in ruling on whether a permissible ground for the peremptory challenge has been shown, and we will not disturb that ruling so long as it is supported by the record." Ibid.

The defendant contends that the Commonwealth's response to the judge's questioning did not adequately explain its rationale behind the use of the peremptory challenges, and that the judge departed from Soares and its progeny by failing to explicitly request the defense to respond to the Commonwealth's explanation. As the defendant did not object to this procedure at trial, we review for a substantial risk of a miscarriage of justice to determine first whether there was an error and, if so, whether that error has left us with "a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016), quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass. 72 (2005).

While the judge did voice concerns regarding the Commonwealth's explanation, he ultimately allowed the peremptory challenges -- an obvious acceptance of the Commonwealth's explanations. The prosecutor offered "group-neutral" explanations for the questioned peremptory challenges, and we discern no reason to intervene on the discretionary decision made by the judge. See Oberly, supra. Further, as described in Maldonado, supra, peremptory challenges may be called into question either by one of the parties or by the judge, sua sponte. Maldonado, supra at 463. In the present case, the defendant's counsel never objected to the Commonwealth's peremptory challenges, and had opportunity to interject after the judge questioned the challenges. The judge's failure to explicitly permit defense counsel to respond to the Commonwealth's rationale when it was the judge himself who initiated the questioning, therefore, was not error. Ibid.

b. Admission by silence. The defendant's wife testified to the conversation where the defendant was accused of assaulting the victim. She stated that, although the defendant was "trying to explain" the situation after being accused, he did say that he did not have sex with the victim when asked. The defense now asserts error in the judge's decision to allow the prosecutor to ask the additional question of "[s]o it would be correct that [the defendant] never answered that question?" Over the defendant's objection, the witness responded that the defendant "was trying to explain to me" and that "[h]e did not say yes, no," but also that the victim's mother was speaking at the time and the situation was "heated." The defendant further disputes the Commonwealth's argument that the above testimony amounted to an admission by silence.

We consider whether the judge erred in allowing the Commonwealth to ask that follow-up question, a decision we review to determine whether there was an abuse of discretion. See Commonwealth v. Howard, 479 Mass. 52, 67 (2018) ("We review questions of admissibility ... under an abuse of discretion standard"). There was no abuse of discretion in allowing the Commonwealth to elicit evidence of a potential admission by silence on the defendant's part.

"The theory of adoptive admissions is straightforward: 'Where a party is confronted with an accusatory statement which, under the circumstances, a reasonable person would challenge, and the party remains silent or responds equivocally, the accusation and the reply may be admissible on the theory that the party's response amounts to an admission of the truth of the accusation.' " Commonwealth v. Braley, 449 Mass. 316, 320-321 (2007), quoting from Commonwealth v. MacKenzie, 413 Mass. 498, 506 (1992). While there was clearly no adoptive admission by silence, we conclude that the judge properly allowed the testimony to be elicited as grounds for a plausible argument of adoption by equivocation, because although the defendant did deny assaulting the victim, he continued to attempt to explain what had happened. Braley, supra. The jury, having been properly instructed by the judge as to what is evidence and what is argument, were free to accept or reject the Commonwealth's theory based on that testimony. There was no abuse of discretion.

c. Closing argument. The defendant's final asserted error stems from the Commonwealth's mention of a conversation between the victim and a Boston police officer that was outside of the evidence. As the defendant did not object to the Commonwealth's closing argument, we review for a substantial risk of a miscarriage of justice. Braley, supra at 329. The Commonwealth concedes that the prosecutor referenced facts not found in the trial transcript. Specifically, the Commonwealth discussed how the defendant did not mention contact made between himself and the victim in a parking lot when asked by the testifying officer when the last time he saw her was. As a preliminary matter, the defendant's failure to object or to request a jury instruction "is some indication that the comment by the prosecutor could not have created a substantial [risk] of miscarriage of justice." Commonwealth v. Ahart, 464 Mass. 437, 442 (2013). "Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). The prosecutor's misstatement did not go "to the heart of the case." Commonwealth v. Johnson, 470 Mass. 300, 318 (2014), quoting from Commonwealth v. Coren, 437 Mass. 723, 731 (2002). With that in mind, coupled with the judge properly instructing the jury that closing arguments are not evidence, we conclude that the Commonwealth's misstatement was ultimately a minor error and one which could not shake the foundation of the jury's verdict. As such, no substantial risk of a miscarriage of justice stemmed from that misstatement.

Judgments affirmed.

      The facts of the sexual assaults are not pertinent to this appeal and need not be discussed. Our factual recitation will focus only on those facts at issue before us.

      "The burden of making a prima facie showing of a discriminatory pattern 'ought not to be a terribly weighty one.' " Oberle, supra, quoting from Maldonado, supra at 463 n.4.

      "An explanation is adequate if it is 'clear and reasonably specific,' 'personal to the juror and not based on the juror's group affiliation.' ... An explanation is genuine if it is in fact the reason for the exercise of the challenge. The mere denial of an improper motive is inadequate to establish the genuineness of the explanation. An explanation that is perfectly reasonable in the abstract must be rejected if the judge does not believe that it reflects the challenging party's actual thinking." Maldonado, supra at 464-465 (citations omitted).

      We review the evidentiary issue, which was properly challenged, to determine whether the judge abused his discretion such that his "decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).


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    Gerald J. PACELLI v. Vincent J. PACELLI & others.
    17-P-498
    Appeals Court of Massachusetts.
    Entered: July 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      John Pacelli, Joseph Pacelli, Rosemary Cowie, Antoinette Powers, Bernadette Richard, Neil M. Kerstein, and Bank of America.

   At issue in this case is whether an agreement among siblings (agreement) in regard to property located at 134 Thorndike Street in Cambridge (locus) is enforceable to prohibit partition of the locus without the unanimous consent of Vincent, Gerald, John, and Joseph Pacelli. The issue was presented to the Land Court judge on summary judgment, and our review is "de novo because we examine the same record and decide the same questions of law." Casseus v. Eastern Bus Co., 478 Mass. 786, 792 (2018), quoting from Kiribati Seafood Co. v. Dechert LLP, 478 Mass. 111, 116 (2017). For the reasons stated below, we conclude the agreement does not violate the rule against perpetuities and is not an unreasonable restraint on alienation. We conclude the agreement is enforceable and, therefore, reverse the decision of the Land Court judge.

Background. The origins of the ownership of the locus are unclear, but it was transferred to Vincent and Gerald Pacelli, as trustees of the Pacelli Realty Trust (Pacelli trust), in January of 1986. The Pacelli trust was a nominee trust, the undisputed beneficiaries of which were four brothers, Vincent, Gerald, John, and Joseph Pacelli. The trustees had "no power to deal in or with the Trust Premises, except as directed in writing by all of the Beneficiaries."

Between February and March of 2003, the four Pacelli brothers and their three sisters, Rosemary B. Cowie, Bernadette A. Richard, and Antoinette M. Powers, executed and recorded the agreement. The agreement noted the existence of the Pacelli trust and stated that the agreement "does not alter, supercede, delete or take the place of the trust." It provided, however, that the "beneficial interest holders," defined as the four Pacelli brothers, desire that they and their three sisters benefit equally from any cash disbursement if and when the locus is sold. Accordingly, the agreement expressly provides that each sibling will be entitled to a one-seventh (1/7) interest in the net cash proceeds from the sale of the premises. The agreement further provides that the three sisters, presumably because they are not beneficial interest holders of the trust, will have no voting rights, and the beneficial interest holders will determine the property expenses. Paragraph five of the agreement allows the beneficial interest holders and the three sisters to "appoint a successor and heir to their 1/7 interest" in the net proceeds and provides that any such successor or heir will be required to adhere to all aspects of the agreement. Paragraph six provides that the siblings all agree that "all of the surviving beneficial interest holders will need to be in agreement for the sale of the premises" (unanimity provision).

Pursuant to the terms of the Pacelli trust, any one of the beneficial interest holders could terminate the trust, and Vincent did so on March 24, 2015. The Pacelli trust provides that upon termination, "the Trust Premises shall automatically vest in the Beneficiaries" as "tenants in common." On April 28, 2016, John, Antoinette, Joseph, Rosemary, Bernadette, and Gerald commenced an action to partition the property. The judge referred to this action as "the prior partition action." Although the parties entered into a settlement agreement in the prior partition action indicating that the locus would be appraised and sold, questions about the enforceability of that settlement arose and instead of seeking to enforce it, Gerald commenced this partition action pursuant to G. L. c. 241, § 1. Vincent, relying on the unanimity provision in paragraph six of the agreement requiring unanimous consent for sale, opposed partition of the property by sale.

On Vincent's summary judgment motion, a judge of the Land Court ordered partition of the property, finding that valid consideration supported the agreement but that the agreement violated the rule against perpetuities and, therefore, constituted an unreasonable restraint on alienation. Even if the rule against perpetuities were not violated, the judge opined, the restriction would last many years and, therefore, "appears to be unreasonable irrespective of whether it violates the rule against perpetuities." The judge also issued orders evicting Vincent and allowing a warrant of sale. Vincent appeals.

Discussion. 1. Rule against perpetuities. We first address the issue of whether the rule against perpetuities renders the unanimity provision unenforceable. "The rule against perpetuities is a rule that invalidates interests that vest too remotely." Bortolotti v. Hayden, 449 Mass. 193, 201 (2007). "The underlying rationale behind the rule (now hundreds of years old) is classically understood as a means whereby courts could 'curb excessive dead-hand control of property through intergenerational transfers' that might render property unmarketable for decades, or longer." Ibid., quoting from Restatement (Third) of Property (Servitudes) § 3.3 comment b, at 427 (2000). If not repugnant to the parties' intent or public policy, a reasonable interpretation of an instrument which avoids application of the rule against perpetuities must be adopted. See New England Trust Co. v. Wood, 326 Mass. 239, 244-245 (1950) ; New England Trust Co. v. Sanger, 337 Mass. 342, 350 (1958). Moreover, "a contract should be construed to give it effect as a rational business instrument and in a manner which will carry out the intent of the parties." Starr v. Fordham, 420 Mass. 178, 192 (1995), quoting from Shane v. Winter Hill Fed. Sav. & Loan Assn., 397 Mass. 479, 483 (1986).

Here, there is no rule against perpetuities issue because the right to approve a sale of the locus extends only to the surviving beneficial interest holders, i.e., the surviving four Pacelli brothers, and not to their heirs or assigns. While it is true that paragraph five allows each of the siblings to appoint a successor, it explicitly provides that they may appoint a successor and heir "to their 1/7 interest." We discern no intent that the beneficial interest holders' heirs or assigns may exercise the veto power contained in the unanimity provision of paragraph six. See Winstanley v. Chapman, 325 Mass. 130, 132 (1949) (option to purchase does not offend rule against perpetuities where there was no intent to bind or benefit heirs of parties). To interpret paragraph six otherwise would render use of the word "surviving" superfluous. "[E]very word and phrase of a contract should, if possible, be given meaning, and ... none should be treated as surplusage if any other construction is rationally possible." Gustafson v. Wachusett Regional Sch. Dist., 64 Mass. App. Ct. 802, 807 n.7 (2005), quoting from Computer Sys. of America, Inc. v. Western Reserve Life Assurance Co., 19 Mass. app. Ct. 430, 437-438 (1985). See Worcester Mut. Ins. Co. v. Marnell, 398 Mass. 240, 245 (1986). That any successor or heir to a 1/7 interest in the proceeds of a sale of the locus must comply with the terms of the agreement does not mean that the heirs or successors of the beneficial interest holders somehow acquire the veto power granted in paragraph six to only the "surviving beneficial interest holders." Rather, the heir or successor of a deceased beneficial interest holder is entitled to a 1/7 interest only when the surviving beneficial interest holders decide to sell the property. Accordingly, because the unanimity requirement does not extend beyond the lives of the Pacelli brothers, we conclude it does not offend the rule against perpetuities.

2. Restraint on alienation. Having concluded that the unanimity provision in the agreement does not violate the rule against perpetuities, we consider whether it nonetheless constitutes an unreasonable restraint on alienation. It is well-settled that conditioning sale of a fee simple interest in property on the consent of all of the tenants in common for a period beyond that fixed by the rule against perpetuities is contrary to public policy and cannot be enforced. See Roberts v. Jones, 307 Mass. 504, 507-508 (1940), and cases cited. Roberts did not address, however, whether a provision conditioning a sale on the unanimous consent of all of the tenants in common for a period less than that allowed by the rule against perpetuities is enforceable.

In Franklin v. Spadafora, 388 Mass. 764, 766 (1983), the Supreme Judicial Court identified several nonexhaustive factors applicable to an analysis of whether a restraint on alienation is reasonable, including whether (1) the person imposing the restriction has an interest in land protected by the restraint; (2) the restraint is limited in duration; (3) the restraint accomplishes a worthwhile purpose; (4) the type of conveyances prohibited are unlikely to be employed to any substantial degree by the one restrained; and (5) the number of persons to whom alienation is prohibited is small. As the Land Court judge stated, whether a restriction that does not run afoul of the rule against perpetuities is "reasonable" calls for "a highly fact-specific inquiry."

Here, the four brothers each has an interest in the locus; the restraint is limited to their lifetimes; and there are no specific persons or class of persons to whom alienation is prohibited. The record is not well developed with regard to the purpose of the restraint, but the judge found that the veto power acquired by Vincent, Joseph, John, and Gerald from the unanimity provision constituted valid consideration for the agreement through which they released to their sisters a percentage of their interest in the proceeds of a sale of the locus. We cannot help but conclude, therefore, that the "veto power" accomplishes a worthwhile purpose. While a possible result of the veto power is that the locus may be off the market longer than it otherwise might be, the agreement also allows more people to share in the proceeds of any sale. Moreover, where at least one of the brothers resided at the locus, the parties may well have concluded it was important and reasonable to provide veto power, in essence granting a life estate to any of the brothers who might want one. On these facts, we conclude the unanimity provision of the agreement does not constitute an unreasonable restrain on alienation.

3. Other arguments. Gerald contends that there are reasons other than the rule against perpetuities or the doctrine against unreasonable restraints on alienation that prohibit enforcement of the agreement. He first argues that there was no consideration for the agreement. The agreement expressly states it is supported by consideration, the sufficiency of which is acknowledged by the parties. It is not for us to question the adequacy of the consideration. See Barnett v. Rosen, 235 Mass. 244, 249 (1920) (law does not concern itself with adequacy of consideration; it is enough that it is valuable). Moreover, the judge found that the unanimity provision constitutes consideration for the beneficial interest holders' release of a portion of the proceeds of the sale of the locus for their sisters. We agree with the judge, therefore, that consideration supported the agreement.

Gerald also contends he did not knowingly waive the right to partition the property. The agreement, in requiring unanimity to sell the property, also prohibits partition by sale even though the agreement does not expressly prohibit partition. See Raisch v. Schuster, 47 Ohio App. 2d 98, 99 (1975) (covenant not to partition is implied where agreement purports to restrict free exercise of right of sale but does not specifically prohibit partition). A party may waive the statutory right to partition. See Roberts, 307 Mass. at 506 (assuming in accordance with great weight of authority that tenant in common may, by agreement, waive right to partition property if agreement extends only for reasonable time). That Gerald did not have the right to partition in mind when he signed the agreement requiring unanimous consent of the beneficial interest holders to sell the locus, does not mean he did not knowingly agree to the unanimity provision which, in effect, waived his right to partition. As the unanimity provision is limited to the lifetime of the beneficial interest holders, and at least one of the brothers had been living at the property for many years without any indication, so far as the record reflects, of a plan to move, we cannot say the unanimity provision was not limited to a reasonable time.

Finally, Gerald argues that the agreement is unenforceable because the Pacelli trust has terminated and there are no longer any "beneficial interest holders." The agreement, however, specifically states that it does not purport to "alter, supercede, delete or take the place" of the Pacelli trust. Nothing in the agreement suggests that the Pacelli trust must continue to exist in order for the agreement to be enforceable. That the four Pacelli brothers were identified in the agreement as the beneficial interest holders of the Pacelli trust at the time the agreement was created does not mean that they have to continue to be the beneficial interest holders of the Pacelli trust at the time the agreement is being enforced. The agreement is an independent contract and there is no requirement that the Pacelli trust continue to exist in order to enforce the agreement.

Conclusion. We reverse the order granting summary judgment to Gerald and ordering the commissioner to proceed with partition by sale of the locus, the warrant issued on March 31, 2017, authorizing the sale of the locus, and the order authorizing the eviction of Vincent. Pursuant to the agreement, Vincent has an enforceable right to veto the sale of the property. Because of the result we reach, we need not consider the timing of the eviction issue raised by Vincent.

So ordered.

Reversed.

      An interlocutory order approving partition by sale is subject to immediate appeal. See Morgan v. Jozus, 67 Mass. App. Ct. 17, 20 (2006), and cases cited.

      We refer hereafter to the Pacelli siblings by their first names where necessary to avoid confusion.

      The rule against perpetuities is "classically defined as the rule that no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." Anderson v. BNY Mellon, N.A., 463 Mass. 299, 313 n.19 (2012) (quotation omitted). See G. L. c. 190B, § 2-901 (statutory rule against perpetuities).

      The agreement takes the case out of the general rule recently restated in Sullivan v. Lawlis, 93 Mass. App. Ct. 409, 412 (2018), that cotenants have an absolute right to partition and no consent of cotenants is required.


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    COMMONWEALTH v. Salvador R. RECINOS-GUERRA.
    17-P-884
    Appeals Court of Massachusetts.
    Entered: July 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury-waived trial, the defendant was convicted of assault and battery on a police officer and resisting arrest. He appeals, arguing only that there was insufficient evidence to prove that he resisted arrest, and that, as a result, the judge erred in denying his motion for a required finding of not guilty on that charge. We affirm.

"A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor ..., by: (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another." Commonwealth v. Joyce, 84 Mass. App. Ct. 574, 581 (2013), quoting from G. L. c. 268, § 32B. Because the defendant did not renew his motion for a required finding of not guilty at the close of all of the evidence, we consider only the evidence presented by the Commonwealth during its case-in-chief. See Commonwealth v. Berry, 431 Mass. 326, 330 (2000), citing to Commonwealth v. Lydon, 413 Mass. 309, 312 (1992).

There was ample evidence admitted at trial to support the defendant's conviction. As the Commonwealth's witnesses testified, on March 16, 2016, Auburn police Officers Kaperonis, Tarentino, and Laskes separately responded to a radio dispatch to the defendant's residence on Washington Street. While they were approaching the front door of the defendant's trailer, the officers heard yelling and children crying inside. With Kaperonis standing beside him, Tarentino knocked on the door; Laskes was standing behind the two. When the defendant answered the door, he appeared angry, was "red in the face," and immediately told the officers to leave; he was uncooperative, "very loud," and "animated," and positioned himself in the doorway in a "bladed stance" or "fighting stance," preventing the officers from entering the trailer. The defendant told the officers several times to leave and "was adamant that he did not want [the officers] in the [trailer]."

In an attempt to enter the trailer, Kaperonis put his hand between the door jamb and the defendant, and the defendant "swiped it down," hitting Kaperonis with his left hand. Kaperonis then grabbed the defendant by the front of his shirt, pulling him out of the doorway and down the front stairs away from the trailer so that the other officers could investigate what was occurring inside. Kaperonis told the defendant to "stay there," but the defendant, who was uncooperative, continued trying to get back into the trailer; the defendant pushed Kaperonis in the chest with his hands, trying to get away. Kaperonis then told the defendant he was arresting him for assault and battery on a police officer; however, the defendant "slipped by" the officer and went back up the stairs to the trailer door. Tarentino grabbed the defendant at the door and along with Kaperonis brought the defendant back down the stairs, where the defendant started "thrashing" and "moving his body" and would not let the officers place the handcuffs on him. The defendant was not cooperating with the officers' instructions, refusing to put his hands behind his back for handcuffing, and trying to get back up the stairs of the trailer. The officers eventually were able to force the defendant down on the ground to handcuff him and place him under arrest. He was then placed in the rear of Kaperonis's cruiser and transported to the police department.

At the time Kasperonis informed the defendant he was arresting him for assault and battery on a police officer, and again later when Tarentino and Kasperonis seized the defendant, bringing him down the stairs and away from the trailer, a reasonable person in the defendant's circumstances clearly would have understood he was being arrested. Joyce, 84 Mass. App. Ct. 581.

The defendant's citation to Commonwealth v. Grandison, 433 Mass. 135, 144-145 (2001), does not assist him. There, the court said, "We do not agree with the defendant's contention that the officers' characterization of the defendant's behavior as 'resisting' or 'struggling' is mere opinion. At the scene, the defendant would not bend his arms to allow the handcuffs to be placed on him and he managed to pull his arm away for a few seconds. It took four police officers to handcuff him. These actions fall within the statutory language. The defendant used 'any other means' that created a 'substantial risk of causing bodily injury' to the police officers (emphasis added). The type of resistance the defendant perpetrated could have caused one of the officers to be struck or otherwise injured, especially at the moment he freed his arm. If the conviction rested solely on this event, ... a rational jury could have concluded that the defendant's behavior did create a risk of bodily injury beyond a reasonable doubt." Ibid. Moreover, the continuing events at the scene in this case clearly are distinguishable from the two very separate incidents addressed in Grandison. There, the above-described events took place at the scene where the defendant was arrested, and another struggle ensued later at the police station where the defendant was taken after his arrest. Id. at 145-146.

Viewing the evidence here in the light most favorable to the Commonwealth, we are satisfied that the judge reasonably could have found that the defendant's conduct amounted to resisting arrest; the motion for a required finding of not guilty was properly denied.

Judgments affirmed.

      The defendant's motion for a required finding of not guilty made at the close of the Commonwealth's evidence was allowed as to the charges of disorderly conduct and disturbing the peace, but was denied as to the charge of resisting arrest. At the close of all of the evidence, the defendant did not renew his motion on the remaining charges. Although he filed a general notice of appeal, the defendant does not challenge his conviction of assault and battery on a police officer in his brief. Accordingly, we do not address it.

      Tarentino was unavailable to testify at trial.

      Laskes provided corroborating testimony.


text:
    COMMONWEALTH v. Dwayne J. RICHARDSON.
    17-P-696
    Appeals Court of Massachusetts.
    Entered: July 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury convicted the defendant on three indictments charging unlawful possession of a firearm in violation of G. L. c. 269, § 10(a ). Each indictment further alleged that the defendant previously had been convicted of three violent crimes or serious drug offenses, thus subjecting him to enhanced sentencing as an armed career criminal under G. L. c. 269, § 10G(c ). At a jury-waived subsequent offender trial, the judge found that the defendant had committed each of the predicate offenses and that he was guilty of the subsequent portions of the indictments.

Following his convictions, the defendant filed a motion for a new trial in which he claimed ineffective assistance of counsel. He also filed a motion seeking funds to retain an expert in eyewitness identification and a motion seeking discovery of information related to identification procedures and the manner in which certain evidence was obtained. These motions were denied without a hearing by a judge who was not the trial judge. The defendant's direct appeal was consolidated with his appeal from the denial of his motion for a new trial. The sole issue raised in both appeals is whether the defendant was deprived of the effective assistance of counsel. For the reasons that follow, we affirm the convictions and the orders denying all postjudgment motions.

Background. We summarize the facts the jury could have found, reserving certain details for later discussion. On April 23, 2012, Massachusetts State police Troopers Orlando Tirella, Patrick Burke, Bradford Porter, and Sergeant Paul Bulman were conducting surveillance on a residence located at 26-28 Minnesota Avenue in Somerville in an effort to locate Robert F. Rogers, a white male, for whom they had an arrest warrant. The troopers were in plainclothes and were driving unmarked vehicles. At approximately 3:00 P . M ., Tirella, Bulman, and Burke observed a light-skinned black or Hispanic male, subsequently identified as the defendant, leave the residence and enter a black Mercedes sedan that was parked on the street in front of the residence. The defendant backed into the driveway, waited a few minutes, and then drove away. At this point, a white male, whom the troopers believed to be Rogers, was in the front passenger seat. The troopers followed the Mercedes to a Hess gasoline station and convenience store where the defendant parked at a gas pump and then walked into the store, crossing paths with Burke as he did so. Meanwhile, the passenger began to pump gas into the Mercedes.

The troopers approached the passenger and identified themselves. At about the same time, Tirella saw the defendant emerge from the convenience store. When he saw the troopers, the defendant immediately turned and ran away. Porter and Burke chased after him, but the defendant was not found.

It was soon determined that the passenger was not Rogers. Because the passenger did not have a valid license to operate a motor vehicle and the defendant had fled, the troopers arranged to have the Mercedes towed and conducted an inventory search during which they found two shotguns and a semiautomatic rifle in the trunk. Upon discovering the firearms, the passenger was arrested. The Mercedes was then towed to the police station.

The next day, Tirella searched the Mercedes again (the second search) and found a medical test form (the document) under the driver's seat that was dated April 18, 2012, and contained the defendant's name and date of birth. Based on this information, Tirella obtained the defendant's driver's license photograph from the registry of motor vehicles (RMV) and concluded that the person in the photograph was the driver of the Mercedes. After viewing the photograph, Burke and Porter also identified the defendant.

During the ensuing investigation, surveillance video was obtained from the convenience store. The video and still photographs from the video depicting the defendant were introduced in evidence. The firearms were test-fired and determined to be operable. The firearms had been stolen from Rogers's grandfather, who resided at 26 Minnesota Avenue.

The defense at trial was misidentification. Through cross-examination of the Commonwealth's witnesses, the defendant attempted to undermine the troopers' identifications of him by highlighting the brevity of their interaction. The defendant also asserted that the quality of the surveillance video was not sufficient to make a reliable identification.

As indicated, the defendant filed a motion for a new trial. In that motion, and on direct appeal, he contends that trial counsel was ineffective for failing to file a motion to suppress the document seized during the second search of the Mercedes and for not attempting to exclude the troopers' identifications of him from the RMV photograph. He further alleges that counsel was ineffective because he did not adequately cross-examine Burke, object to the prosecutor's allegedly misleading statements during closing argument, request the standard jury instruction on identification, or present expert testimony on eyewitness identifications.

In a comprehensive memorandum of decision and order, the motion judge rejected the defendant's claims of ineffective assistance of counsel. We review her order denying the new trial motion to determine whether there has been a significant error of law or the abuse of discretion. See Commonwealth v. Grace, 397 Mass. 303, 307 (1988). The judge also denied the defendant's motions seeking discovery and funds. We review the denial of these motions for abuse of discretion as well. See Commonwealth v. Zagrodny, 443 Mass. 93, 108 (2004) ; Commonwealth v. Ware, 471 Mass. 85, 94 (2015).

Discussion. We review claims of ineffective assistance of counsel under the familiar two-prong Saferian test. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). First, we examine "whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinarily fallible lawyer." Ibid. Second, we examine whether such behavior "likely deprived the defendant of an otherwise available, substantial ground of defence." Ibid. The defendant has the burden to establish both prongs. Commonwealth v. Pike, 53 Mass. App. Ct. 757, 760 (2002). After careful consideration of the record, we conclude, as did the motion judge, that the defendant has not met his burden. We address each claim in turn.

1. Failure to challenge the second search. The defendant first contends that trial counsel was ineffective for failing to file a motion to suppress the document found by Tirella during the second search of the Mercedes. In order to establish that counsel was ineffective on this ground, the defendant must "demonstrat[e] a likelihood that the motion[s] to suppress would have been successful." Commonwealth v. Comita, 441 Mass. 86, 91 (2004). He cannot do so, because it is undisputed that he abandoned the Mercedes and its contents when he fled.

To prevail on a motion to suppress under art. 14 of the Massachusetts Declaration of Rights, the defendant must demonstrate that he has standing to contest the search and that he had an expectation of privacy in the area searched or in the item seized that society recognizes as reasonable. Commonwealth v. Carnes, 81 Mass. App. Ct. 713, 716 (2012). For our present purpose, we assume without deciding that the defendant has standing. However, because it is well settled that a defendant has no right of privacy in property he has abandoned, a motion to suppress the document would have had no chance of success. See Commonwealth v. Pratt, 407 Mass. 647, 660 (1990) ; Commonwealth v. Bly, 448 Mass. 473, 490-491 (2007) ; Commonwealth v. Perkins, 450 Mass. 834, 842 (2008) ; Commonwealth v. Ewing, 67 Mass. App. Ct. 531, 540 (2006) ; Commonwealth v. Cabral, 69 Mass. App. Ct. 68, 72 (2007). Accordingly, trial counsel was not ineffective for failing to pursue a motion to suppress the document. Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).

2. Failure to file a motion to suppress the photographic identifications. The defendant also claims that trial counsel should have moved to suppress the troopers' identifications of him from his RMV photograph. He contends that such a motion would have been successful on the ground that the circumstances surrounding the identifications were unnecessarily suggestive. We disagree.

"The burden [i]s on the defendant to prove by a preponderance of the evidence that the photographic identification was unnecessarily suggestive." Commonwealth v. Venios, 378 Mass. 24, 29 (1979). Nothing in the record warrants the conclusion that the defendant could have met this burden. As an initial matter, we observe that Tirella's identification was not the result of any procedure per se. Rather, Tirella appears to have made his identification during the ordinary course of his investigation. As regards the identifications made by Burke and Porter, the defendant has failed to point to any facts, other than that they viewed a single photograph, that would warrant a conclusion that the identification procedure was unnecessarily suggestive.

For constitutional purposes, a one-photograph identification is the equivalent of an in-person, one-on-one identification, a procedure which is generally disfavored. However, a one-photograph identification will not be suppressed unless the defendant proves by a preponderance of the evidence that the police procedure was "so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny [the defendant] of due process of law." Commonwealth v. Carlson, 92 Mass. App. Ct. 710, 712 (2018), quoting from Commonwealth v. Dew, 478 Mass. 304, 306-307 (2017). In determining whether the identification is unnecessarily suggestive, we consider whether "good reason" exists for the police to use the procedure. Id. at 712-713. Here there was good reason to show Burke and Porter a single photograph, as no suspect was in custody at the time of the photographic identification and the troopers "had a definite image" of the operator in their minds. Commonwealth v. Venios, supra. "Moreover, there was no evidence of any 'special elements of unfairness' in the use of the defendant's photograph." Commonwealth v. Sylvia, 57 Mass. App. Ct. 66, 69-70 (2003) (citation omitted). Having considered the entire circumstances of the identification procedure, we conclude that the procedure employed in this case did not create a substantial risk of a mistaken identification. As such, a motion to suppress the identifications had no realistic chance of success. Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 324 (2009).

3. Failure to adequately cross-examine Trooper Burke. Next, the defendant claims that trial counsel was ineffective when he cross-examined Burke because he did not elicit testimony to clarify that Rogers, the person, and not 26 Minnesota Avenue, the residence, was the target of the troopers' surveillance. There is no merit to this argument.

Burke testified on direct examination that the target of their surveillance lived at 26 Minnesota Avenue and that his attention was drawn to the Mercedes because someone "exited the target residence and walked over to [it] and got in the driver's seat." Burke further explained that when the Mercedes drove away, he could see that there now "appeared to be a white male in the passenger seat." In light of extensive testimony that the troopers were surveilling 26 Minnesota Avenue in order to locate Rogers, a white male, we very much doubt that further cross-examination to clarify that the troopers were interested in Rogers would have "accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

4. Failure to object to portions of the prosecutor's closing argument. In his closing argument, the prosecutor urged the jury to credit the troopers' identifications of the defendant because they "weren't just ordinary people who were making these observations," but had a "very specific purpose" of observing "what was going at 26 Minnesota Avenue" because "that [house] was the target of their investigation." The prosecutor argued that the troopers had paid special attention to the operator of the Mercedes because "somebody that they just saw coming out of the target residence[ ] is a person of potential interest." The defendant claims that trial counsel should have objected to these remarks because they "almost certainly suggested to the jury that the house was a known drug den or the site of other ongoing illegal activity and that anyone in the house was likely to be a participant in that activity."

We are not persuaded that the challenged comments conveyed to the jury that the defendant had any connection to an alleged "drug den" or other illegal activity. Furthermore, after reviewing the prosecutor's remarks "in the context of his entire closing argument, the judge's instructions to the jury, and the evidence produced at trial," Commonwealth v. Lyons, 426 Mass. 466, 471 (1998), we see nothing improper, let alone an error creating a substantial risk of a miscarriage of justice. As a result, defense counsel's failure to object to the challenged remarks does not amount to ineffective assistance of counsel. See Commonwealth v. Oliveira, 431 Mass. 609, 613 n.6 (2000).

5. Failure to request the standard instruction on eyewitness identification. The defendant faults trial counsel for failing to request the standard instruction on eyewitness identification as approved by the Supreme Judicial Court at that time. See Commonwealth v. Franklin, 465 Mass. 895, 910 n.24 (2013). However, trial counsel specifically requested that the judge give a modified identification instruction. This was a strategic decision which, in our view, was not unreasonable. See Commonwealth v. Zagrodny, 443 Mass. at 98 ("As to claimed errors in trial counsel's strategy, none is established unless we are persuaded that counsel's tactics were manifestly unreasonable when undertaken" [quotations and citations omitted] ). More importantly, the instruction as given emphasized the importance of eyewitness identifications, informed the jury of the Commonwealth's heavy burden of proof as to the accuracy of the identification, and related the criteria by which the jury can assess the quality of the identification. See Commonwealth v. Johnson, 470 Mass. 389, 395 (2015). Because the essential purposes of an identification instruction were fulfilled, we are confident that an additional instruction would not have substantially influenced the weight the jury ascribed to the identification testimony. Commonwealth v. Franklin, supra at 914. Accordingly, "[a]lthough the defendant may have been entitled to more detailed identification instructions had defense counsel [so requested], the failure to give such instructions did not create a substantial risk of a miscarriage of justice." Commonwealth v. Evans, 42 Mass. App. Ct. 618, 621-622 (1997). See Commonwealth v. Willard, 53 Mass. App. Ct. 650, 660-661 (2002) (no substantial risk of miscarriage of justice from lack of instruction where there was "no doubt that the defense of misidentification was squarely before the jury").

6. Failure to present expert testimony. Finally, the defendant contends that trial counsel was ineffective in failing to offer at trial the testimony of an expert on eyewitness identification. The defendant claims that such an expert could have provided evidence that (1) police officers are no better than lay witnesses at accurately recalling details or making identifications, (2) face perception begins to diminish at twenty-five feet, (3) identifications made from a single photograph more than thirty minutes after the incident are "no better than random chance," (4) the receipt of postevent information can alter memories of an incident, (5) longer durations of exposure to a perpetrator generally result in more accurate identifications, (6) "a person's capacity for processing information is finite" and the troopers' focus on Rogers may have affected their identifications of the defendant, and (7) cross-racial identifications are more likely to be incorrect than same-race identifications.

Through thorough cross-examination, however, defense counsel highlighted the distance from which the troopers observed the Mercedes, the fact that 26 Minnesota Avenue is a residential area with many obstructions, the brevity of the troopers' opportunity to observe the operator before he fled from the scene, the troopers' prior unfamiliarity with the defendant, the fact that the troopers were surveilling Rogers (a white male), and the fact that the troopers identified the defendant after discovering the document with his information on it. "As a practical matter, the jury were provided with" the very testimony for which the defendant now claims that he needed an expert, Commonwealth v. Alicea, 464 Mass. 837, 851 (2013), and we are not persuaded that the proffered expert testimony would have added materially to the defendant's case.

7. Denial of motions for discovery and funds. As indicated, the defendant filed motions for postjudgment discovery and funds. The discovery motion sought information about the State police policies concerning identification procedures and the manner in which the surveillance video from the gas station had been selected and obtained. "In order to prevail on a posttrial discovery motion, a defendant must demonstrate that it is reasonable likely that such discovery will lead to evidence possibly warranting a new trial." Commonwealth v. Camacho, 472 Mass. 587, 598 (2015). "Additionally, the defendant must make a prima facie showing that the evidence sought would have materially benefited the defense and would have factored into the jury's deliberations." Ibid. In the absence of any basis upon which we can conclude that the evidence sought would have a bearing on the question whether the defendant is entitled to a new trial, we conclude that the judge did not abuse her discretion in denying the motion for discovery.

Nor did the judge abuse her discretion in denying the defendant's motion for funds. Although we do not have the benefit of the judge's reasoning, we are persuaded that the funds sought were not reasonably necessary. See Commonwealth v. Zagrodny, supra at 108.

Conclusion. The defendant's convictions are affirmed. The orders denying the defendant's motions for a new trial, for posttrial discovery, and for funds are affirmed.

Judgments affirmed.

Orders denying defendant's postjudgment motions affirmed.

      The defendant also was indicted on two counts of receiving stolen property in connection with the same incident. These charges were nol prossed before trial.

      The trial judge had retired.

      The defendant withdrew a remaining argument in a written waiver.

      Bulman and Burke were in one car while Tirella and Porter were alone in separate vehicles.

      Because we conclude that the defendant has not satisfied his burden of proving ineffectiveness of counsel, it follows that the motion judge did not abuse her discretion in denying the defendant's new trial motion.

      Trial counsel did file a motion to suppress the firearms on the ground that the police lacked reasonable suspicion to stop the Mercedes and probable cause to search it. The motion was denied before trial by a different judge, who issued oral findings of fact and rulings of law at the conclusion of an evidentiary hearing. Although the issue was not before him, the judge ruled that the second search was lawful under the automobile exception to the warrant requirement.

      We consider the question whether the defendant abandoned the Mercedes as a settled one. We note that the judge who denied the defendant's motion to suppress the firearms explicitly found that the defendant had abandoned the Mercedes at the gas pumps. While the defendant argues in his brief that his flight from the scene is not evidence of abandonment, he has not challenged the judge's finding as clearly erroneous. In fact, he has not challenged any aspect of the order denying the motion to suppress, either on appeal or in his motion for a new trial.

      "Under the Fourth Amendment to the United States Constitution, the question whether the defendant has standing to challenge the constitutionality of a search or seizure is merged with the determination whether the defendant had a reasonable expectation of privacy in the place searched." Commonwealth v. Mubdi, 456 Mass. 385, 391 (2010).

      In light of our conclusion, we need not address whether the second search of the Mercedes was justified under the automobile exception to the warrant requirement. See Commonwealth v. Johnson, 461 Mass. 44, 49 (2011) (setting forth exception).

      The defendant's related claim, that counsel should have objected to the prosecutor's statement in closing argument that the defendant became a "person of interest" when the troopers saw him exit that residence, is similarly without merit.

      During the charge conference, the judge stated that she would give the first paragraph of the standard identification instruction. However, because none of the witnesses made in-court identifications of the defendant, the judge stated her view that "the standard instruction doesn't work." The judge continued, "On the other hand, some aspects of it, if the defendant requests them, it seems to me are relevant." Trial counsel responded by asking "that the Court not give the portion of the instruction that talks about belief evidence or opinion evidence." Counsel did request that the judge give that portion of the instruction that "treats the witness's ability to perceive and the facts that factor into it." The judge stated, "So you don't want me to instruct them that essentially in this case the witnesses stated that an individual depicted in the photograph was the same person they had seen and in evaluating that they should consider the adequacy of the opportunity, et cetera." Defense counsel reiterated his position "that the opinion evidence should not be considered by the jury. And if you give the instruction making reference to that particular type of language, then it takes the case away from --" The judge interjected, "All right. So that's a strategy decision that you've made in terms of the requested instruction, is that correct?" Trial counsel responded, "Yes." The judge then stated that she would give the first paragraph of the standard instruction, "that the identification of the defendant as the 'perpetrator' is essential, and that they have to find, if they have a reasonable doubt they have to find that he is not guilty." There was no further discussion regarding the identification instruction.

      The judge instructed the jury to consider "how good an opportunity [the] witness had to observe the facts about which he testified, the witness's mental and physical state at the time the observations were made, the degree of intelligence the witness shows, and whether the witness's memory seems accurate."


text:
    COMMONWEALTH v. Steven R. WALSH.
    17-P-1235
    Appeals Court of Massachusetts.
    Entered: July 27, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of motor vehicle homicide by way of negligent operation, in violation of G. L. c. 90, § 24G(b ). On appeal, the defendant asserts several trial errors. We affirm.

Background. We briefly summarize the facts the jury could have found. The defendant was nineteen years old on September 15, 2013, and was home from college for the weekend visiting with his family at their home in Walpole. He and his brother played golf that afternoon, and his brother allowed the defendant to drive his red 2000 Chevrolet Corvette home from the golf course. While traveling on a narrow and winding road in Canton, the defendant collided with a Chevrolet Trailblazer traveling in the opposite direction. The driver of that Trailblazer, Mary Morningstar, was killed as a result of the accident.

One witness who lived on the road where the crash took place testified to hearing a car accelerating and looking up to see the defendant's Corvette "fly by" his house at "[more] than the speed limit" of [twenty] miles per hour. Another witness heard a "ferociously loud noise of a vehicle" and saw a flash of red outside her window. Each of them, and several other witnesses, then heard the sound of the accident, which took place approximately 200 yards from the intersection where the defendant took a right turn. A State police trooper who conducted a reconstruction of the accident testified that the approximate area of impact was twenty-nine inches into the victim's travel lane. A forensic pathologist testified that the victim's death was caused by lacerations to her heart, caused by blunt force injury to her chest during the accident.

The defendant now asserts that the judge committed the following errors at trial: (1) improperly denying a motion to admit expert testimony regarding the victim's toxicology report; (2) improperly denying a motion to exclude lay opinion as to the speed of the vehicle based on sound; (3) improperly denying a motion to exclude certain autopsy photographs; (4) improperly refusing to issue a lesser-included jury instruction; (5) improperly failing to specifically reference the victim in his instruction on causation; (6) improperly refusing to instruct the jury that speed alone does not amount to negligent operation of a motor vehicle; and (7) improperly excluding evidence that suggested the victim was improperly seated in her vehicle and was therefore contributorily negligent.

Discussion. We review asserted trial errors, when properly preserved at trial, for prejudicial error. The analysis requires a two-part inquiry. First, we must address whether an error occurred, and if so, we must then consider whether it was unduly prejudicial. For those asserted errors that were not preserved, we likewise review for error and, if established, whether that error created a substantial risk of a miscarriage of justice such that "we have a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016), quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002).

a. Motions in limine. Three alleged errors stem from the judge's decisions regarding motions in limine prior to trial. As a preliminary matter, the defendant contends that the mere filing of those motions properly preserved the issues for appeal under the Supreme Judicial Court's decision in Commonwealth v. Grady, 474 Mass. 715, 724-725 (2016). The defendant's trial, however, took place prior to the issuance of Grady and it has been determined that Grady does not apply retroactively. See Commonwealth v. Vazquez, 478 Mass. 443, 448 n.2 (2017). As a result, any issues involving motions in limine that were denied will be reviewed for a substantial risk of a miscarriage of justice. See ibid.

Of the three motions in limine the defendant contends were erroneously denied -- regarding the victim's toxicology report, the witness's lay testimony regarding the vehicle's speed based on sound, and the autopsy photographs -- only the issue of the toxicology report was sufficiently preserved to be reviewed for prejudicial error. We review that decision to determine whether the judge's denial of the motion amounted to an abuse of discretion, which occurs when a judge "made a 'clear error of judgment in weighing' the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting from Similow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 37 (1st Cir. 2003). The defendant sought to have an expert witness testify to the potential side effects and interaction between three prescription drugs that were discovered in the victim's blood. For such evidence to be properly admitted, the defense would need to establish, "at a minimum, (1) reliable evidence as to the amount or concentration of the drug in the defendant's system; and (2) expert testimony indicating that the concentration of the drug in the [victim's] system would impair her ability to operate a motor vehicle." Commonwealth v. Shellenberger, 64 Mass. App. Ct. 70, 76 (2005). As there was nothing to indicate the amount or concentration of any of the prescription drugs in the toxicology report, there was no abuse of discretion in the judge's denial of the defendant's motion.

Neither of the two other asserted errors stemming from the denials of the motions in limine were error, and therefore could not create a substantial risk of a miscarriage of justice. First, the defendant asserts error in the judge's admission of two autopsy photographs -- one showing the victim's heart on an autopsy table, the other depicting a medical examiner holding the heart while placing a finger through a hole torn through it as a result of the collision. The defendant argues each was highly prejudicial and not necessary to aid the jury in reaching their decision. The judge did not abuse his discretion in admitting them. The Commonwealth bore the burden of proving that the defendant's negligent driving was the cause of the victim's death. See Commonwealth v. Burke, 6 Mass. App. Ct. 697, 699 (1978) (elements of motor vehicle homicide include "thereby causing the death of a person"). It is well established that autopsy photographs, even "if apt to be inflammatory or otherwise prejudicial," may be admitted if relevant to an issue in the case. Commonwealth v. Bastarache, 382 Mass. 86, 106 (1980). A forensic pathologist testified that the victim's cause of death was lacerations to the heart caused by blunt force trauma to the chest. The two photographs were used as part of that witness's testimony, and helped explain the victim's cause of death. "The question whether the inflammatory quality of a photograph outweighs its probative value and precludes its admission is determined in the sound discretion of the trial judge." Commonwealth v. Amran, 471 Mass. 354, 358 (2015), quoting from Commonwealth v. Pena, 455 Mass. 1, 12 (2009). Given that the photographs had clear probative value, we conclude the judge's decision to admit them was well within the range of reasonable alternatives.

Finally, the judge did not err in allowing lay opinion with respect to the speed of the defendant's vehicle. "While an expert opinion is admissible only where it will 'help jurors interpret evidence that lies outside of common experience,' a lay opinion is admissible only where it lies within the realm of common experience." Commonwealth v. Canty, 466 Mass. 535, 541-542 (2013), quoting from Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 581 (1998). "A lay opinion ... is admissible only where it is '(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge.' " Id. at 541, quoting from Mass. G. Evid. § 701 (2013). "[L]ay witnesses who directly observe a motor vehicle while it is moving ... [may] offer an estimate of the speed of that vehicle." Peterson v. Foley, 77 Mass. App. Ct. 348, 351 (2010). See Commonwealth v. Giontzis, 47 Mass. App. Ct. 450, 461 (1999) (lay "opinions as to speed are competent and admissible"). The defendant challenges the testimony of a lay witness who stated that he heard the defendant's vehicle accelerating, that it was "driving fast" down his street, and that "[i]f the car's going [twenty] miles per hour you'll never make that sound." The witness's characterization of the defendant's vehicle speed, while based on sound, was grounded in his own personal perception and was not based on a specialized knowledge such that it would require an expert's opinion. See Peterson, supra. We conclude, therefore, that it was not unreasonable for the judge to permit the witness to testify, based on his perception of the sound that the vehicle was accelerating. See Peterson, supra; Canty, supra.

b. Jury instructions. The defendant further asserts that the judge erred three times when delivering his jury instructions. If properly preserved, we review these asserted errors for prejudice by "conduct[ing] a two-part test: 'whether the instructions were legally erroneous, and (if so) whether that error was prejudicial.' " Commonwealth v. Kelly, 470 Mass. 682, 688 (2015), quoting from Kelly v. Foxboro Realty Assocs.,LLC, 454 Mass. 306, 310 (2009). See Commonwealth v. Vick, 454 Mass. 418, 423 n.5 (2009). For those not preserved, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). Under either standard of review, we first determine whether there was error under the abuse of discretion standard. See L.L., 470 Mass. at 185 n.27 ; Commonwealth v. Williams, 475 Mass. 705, 721-722 (2016). First, the defendant contends that the judge should have instructed the jury on the lesser included offense of negligent operation. Second, he argues that the judge erred in instructing the jury on intervening causation of the accident without specifically referring to the victim. Finally, the defendant asserts error in the judge's refusal to instruct the jury that speed alone does not amount to negligent operation.

The defendant did not object to the judge's refusal to issue a lesser included instruction. It is true that "operating to endanger is a lesser included offense of vehicular homicide" because of the latter's additional aggravating factor of a victim's resultant death. Commonwealth v. Williams, 73 Mass. App. Ct. 833, 837, 838 (2009). However, "[t]he test for deciding when an instruction on a lesser included offense should be given to the jury is whether the evidence at trial presents 'a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense.' " Commonwealth v. Donlan, 436 Mass. 329, 335 (2002), quoting from Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 692 (1998). In the present case, the defense was that the defendant was in control of the vehicle and the collision was caused by the victim crossing over into his lane. In contrast, the Commonwealth presented evidence suggesting that the defendant was operating negligently and that the crash took place in the victim's lane. As such, the jury were asked to choose between two alternative theories: either the defendant was not operating negligently, or his negligent operation led to the collision and the victim's death. As such, the judge did not err in declining to instruct the jury on the lesser included offense. See Donlan, supra.

The remaining two jury instruction challenges were preserved. As it relates to the judge's refusal to specifically reference the victim when instructing the jury on intervening causes, there was no abuse of discretion. The defendant requested that the victim be directly referenced in place of the judge's use of the phrase "third person." In response to the request, the judge stated that the jury are "not going to get confused" by his use of third party and denied the motion. As the judge properly stated the applicable law, we discern no error. See Kelly, supra.

Similarly, the judge did not err in refusing to instruct the jury that speed alone does not amount to negligent operation of a motor vehicle. It is true that "[e]xcessive speed, by itself, does not mandate such a finding, but it can be considered in combination with other evidence, in determining whether the defendant's operation constituted negligent operation." Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 922 (2004). See Commonwealth v. Ross, 92 Mass. App. Ct. 377, 379 (2107). The judge's instructions, consistent with the law, adequately conveyed the defendant's rate of speed and manner of operation as one of the factors the jury may consider in determining whether the defendant drove negligently, in a manner that might have endangered the public. There was no error, therefore, in the judge's decision to deny the defendant's request to emphasize that speed alone was insufficient to support a conviction. See Duffy, supra.

c. Contributory negligence. The defendant's final asserted error stems from the judge's prohibition against defense counsel from suggesting to the jury during his closing argument that the victim may have been improperly seated in her vehicle such that she was contributorily negligent. Because this issue was not preserved, it is reviewed for a substantial risk of a miscarriage of justice. To be clear there was expert testimony suggesting that the victim may have been leaning over in her seat at the time of the accident. That testimony, however, was based solely on data recorded by the vehicle's computer system and did not have any further basis in evidence. Additionally, the judge properly sought to eliminate contributory negligence arguments by the defense as "[i]n criminal cases, as opposed to civil negligence suits, a victim's contributory negligence, even if it constitutes a substantial part of proximate cause (but not the sole cause), does not excuse a defendant whose conduct also causes the death of another." Commonwealth v. Angelo Todesca Corp., 446 Mass. 128, 142 (2006), quoting from Commonwealth v. Campbell, 394 Mass. 77, 87 (1985). As such, the judge properly limited the scope of the defendant's argument and we conclude there was no substantial risk of a miscarriage of justice.

Judgment affirmed.

      The Commonwealth filed a motion in limine seeking to preclude reference to prescription medications in the victim's blood. The motions were argued together, with the Commonwealth's being allowed and the defendant's being denied.