text:
    Mikkel THORUP v. Lauren HODGES.
    17-P-993
    Appeals Court of Massachusetts.
    Entered: September 28, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Defendant Lauren Hodges appeals from a summary process judgment awarding possession of certain residential premises to plaintiff Mikkel Thorup. We affirm.

Thorup owns and until 2013 lived in a small residence in Shutesbury. In that year Thorup relocated to and took up a teaching position in Denmark, his Shutesbury home remaining essentially vacant until early 2014. In March, 2014, while temporarily in New York, Thorup met Hodges and the two "very quickly [became] very good friends." Hodges, an actor, told Thorup "she wanted to switch into screenplays, and she wanted a place to write" for a couple of months. Thorup offered to let Hodges stay in his Shutesbury home. Hodges accepted the offer and moved in. Hodges did not pay rent. Instead, Thorup paid Hodges a small stipend to look after the residence, paid the home's utilities and other expenses, and Thorup allowed Hodges to use his credit card (without reimbursement) and car.

Initially all was well but as Hodges's occupation extended past the parties' initially contemplated period disagreements arose and the parties' relationship soured, especially after Hodges learned that Thorup intended to marry another. In October, 2015, Thorup asked Hodges to vacate. Hodges, though upset, responded that she would move out as soon as "she had the funds" and that she would appreciate a loan from Thorup. The parties' negotiations were unsuccessful. Thorup sent Hodges a formal notice to quit on June 7, 2016.

Hodges did not vacate and, in June, 2016, Thorup filed this summary process action to recover possession from Hodges. Hodges vigorously defended, essentially, as relevant here, on the grounds that she was Thorup's tenant under an oral lease or other agreement; Thorup improperly and without sufficient notice terminated her tenancy; and that Thorup both breached various alleged promises and committed a number of torts. After trial a Housing Court judge ordered Hodges to vacate, finding in essence that the parties never entered into a lease or other similar agreement, that Hodges was at most a social guest whom Thorup could evict at any time. When Hodges still refused to vacate the judge entered an injunction and officers forcibly removed Hodges from the residence.

We are satisfied that the core questions raised below fall squarely within the Housing Court's subject matter jurisdiction. See G. L. c. 185C, § 3. Nor are we persuaded that Thorup lacks standing to bring an action under summary process procedure. As Hodges observes, summary process is "a purely statutory procedure and can be maintained only in the instances specifically provided for in" G. L. c. 239, § 1. Cummings Props., LLC v. Cepoint Networks, LLC, 78 Mass. App. Ct. 287, 288 (2010), quoting Fafard v. Lincoln Pharmacy of Milford, Inc., 439 Mass. 512, 515 (2003). But this observation does not demonstrate that summary process procedure may not be used by an owner to recover possession when his social guest refuses to vacate. See G. L. c. 239, § 1 ("the person entitled to the land or tenements may recover possession"). Contrast Rental Prop. Mgmt. Servs. v. Hatcher, 479 Mass. 542, 546 (2018) ("Where, as here, the plaintiff is neither the owner nor the lessor of the property, the plaintiff has no standing to bring a summary process action" [emphasis added] ).

On the contrary, the "purpose of summary process is," as in the present case, "to enable the holder of the legal title to gain possession of premises wrongfully withheld." Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 775 (1966). Otherwise stated, "a claim for possession remains [the] sine qua non" of § 1. Cummings, 78 Mass. App. Ct. at 289 n.2. See also and compare id. at 288-290 (landlord's claim in summary process action against tenant's guarantor to recover tenant's unpaid rent improper where guarantor was never in possession); United Co. v. Meehan, 47 Mass. App. Ct. 315, 319 (1999) (landlord could not maintain summary process claim against tenant's occasional visitor because removing "a guest or visitor of a tenant does not effect recovery of possession"); Mulvanity v. Pelletier, 40 Mass. App. Ct. 106, 107 (1995) (summary process action by grandson to evict grandmother who claimed oral promise of life estate). The judge found, and Hodges does not dispute, that Thorup owns the subject premises and that Hodges, initially with Thorup's permission, was in actual possession when Thorup commenced this action. The judge also found that Hodges wrongfully withheld possession after Thorup properly terminated her residency. Thorup's resort to summary process procedure in these circumstances was entirely proper.

In so ruling we are not unmindful that the judge described Hodges's residency as being under a "use license" and that § 1 does not specifically refer to either "licensors" or "licensees" -- or for that matter social hosts/guests -- as persons who may bring summary process actions. But, as noted above, these semantic differences are of little moment in the particular factual circumstances before us and where Thorup's claim is limited to one for "possession of premises wrongfully withheld." Wayne, 350 Mass. at 775. See and compare Cummings, 78 Mass. App. Ct. at 288-290 ; Meehan, 47 Mass. App. Ct. at 319 ; Mulvanity, 40 Mass. App. Ct. at 107. Moreover, we are compelled to reject Hodges's construction because, if for no other reason, if adopted it would tend to frustrate the significant public policy considerations undergirding statutes prohibiting or limiting the use of self-help measures to secure possession of real property. See G. L. c. 184, § 18. See also Commonwealth v. Soto, 476 Mass. 436, 440-441 (2017) (rejecting "an interpretation of the statute" that would undermine "public safety policy ... to treat juvenile defendants charged with murder as adults").

Ratner v. Hogan, 251 Mass. 163 (1925), does not require a different result. Instead, Ratner stands only for the limited proposition that where the party seeking possession lacks good title, and where a jury properly could find on the evidence submitted that the plaintiff had no immediate right to possession because the jury could properly have found that there was no landlord-tenant relationship between the parties, the judge could not properly direct a verdict of possession in the plaintiff's favor. Ratner, 251 Mass. at 166. Here, by contrast, Hodges concedes that Thorup owns the premises; in addition, the judge found, in her capacity as fact finder following a full evidentiary trial, that Hodges wrongfully withheld possession from Thorup.

Turning to Hodges's remaining objections, and although we need not reach the question, we have no doubt that Hodges could properly, under G. L. c. 239, § 8A, have asserted counterclaims arising from her occupancy. But, for the most part and to the extent we understand Hodges's counterclaims, those claims appear to arise from alleged conduct extraneous to her occupation and could not, in any event, have defeated Thorup's claim for possession. As such, those claims properly were disregarded. See Bank of Am., N.A. v. Rosa, 466 Mass. 613, 625 (2013) ("complaint must have some relationship to original and special function of Housing Court"), citing Ryan v. Kehoe, 408 Mass. 636, 640-641 (1990). Nor is it correct that the judge prohibited Hodges from asserting counterclaims. The record before us reflects that the judge allowed Hodges to both argue and testify, for example, that the parties had entered into an oral agreement either creating a tenancy or granting to Hodges some other property right indefeasible except on proper notice. While the judge specifically found that the parties entered into no such agreement, the judge's conclusion was based on well-supported findings, not a blanket conclusion that, as a "licensee," Hodges could raise no counterclaims. There was no error.

Assuming that Hodges preserved the question, "recusal is generally left to the discretion of the trial judge and an abuse of that discretion must be shown to reverse a decision not to allow recusal." Haddad v. Gonzalez, 410 Mass. 855, 862 (1991) (citations omitted). We find no indication on the record before us that the trial judge displayed any partiality or that the judge otherwise abused discretion by declining to recuse herself.

We are unable meaningfully to review Hodges's assertion that certain of the trial judge's findings are clearly erroneous because Hodges did not include in her appendix a complete trial transcript. Mass. R. A. P. 18 (a), as amended, 425 Mass. 1602 (1997). M.M. v. D.A., 79 Mass. App. Ct. 197, 207 (2011) (by failing to provide appellate court with complete transcripts, appellant cannot argue judge's finding is unsupported by evidence). In any event, and assuming that questions pertaining to possession remain live, on close review of such materials as are before us we are satisfied that the judge's findings are well supported and cannot otherwise be deemed clearly erroneous.

While the docket reflects that Hodges filed multiple postjudgment notices of appeal, the only notice appearing in the record before us specifies that it is from "the judgment which entered against [Hodges] on December 16, 2016." In addition, we observe that for the most part Hodges raises no arguments addressing any of the postjudgment orders that might conceivably be the subject of any of her additional notices. Accordingly, with the single exception noted below, such matters are not before us. Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975) ("The appellate court need not pass upon questions or issues not argued in the brief"). Mass. R. A. P. 18 (a) (duty of appellant to provide adequate appendix). Bayless v. TTS Trio Corp., 474 Mass. 215, 219 n.9 (2016).

In light of our conclusion that the judgment of possession will be affirmed, we need not address Hodges's argument that the injunction entered February 2, 2017, which resulted in Hodges's physical removal from the premises, was erroneously entered. To the extent we have not specifically commented, we have considered Hodges's remaining arguments and found them to be without merit.

Judgment affirmed.

Order entered February 2, 2017, affirmed.

      Thorup paid a friend a small amount to check in on the home and ensure all was well.

      Housing Court has concurrent jurisdiction over, among other things, actions brought "under the provisions of common law and of equity ... [concerning] the possession ... of any ... housing accommodations." G. L. c. 185C, § 3.

      Prohibiting any "attempt to recover possession of land or tenements in any manner other than through" summary process procedure "or such other proceedings authorized by law." G. L. c. 184, § 18.

      It has been established that G. L. c. 239, § 8A, permits, in at least some circumstances, a nontenant to raise affirmative claims in summary process proceedings. See Mulvanity, 40 Mass. App. Ct. at 109 ; Hodge v. Klug, 33 Mass. App. Ct. 746, 754 (1992) ("The insertion of occupant as an alternative to tenant [in § 8A ] causes the statute to be applicable to persons in place in a dwelling whose status may be less than a tenant -- otherwise there is no point in the language"). See also Bank of Am., N.A. v. Rosa, 466 Mass. 613, 623 (2013) (noting that, beyond authority granted Housing Court under § 8A, summary process actions are "civil actions" and that Housing Court's jurisdiction "is broad enough to include the power to consider equitable defenses under G. L. c. 231, § 31, ... in all summary process actions in which a plaintiff seeks to evict someone from a place of habitation").

      As noted above and discussed in our order in Thorup v. Hodges, No. 17-P-0475 (Dec. 27, 2017), after judgment entered Hodges was removed from the subject premises and she no longer is in possession. See Tamber v. Desrochers, 45 Mass. App. Ct. 234, 235 (1998).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Larry AHART.
    17-P-1492
    Appeals Court of Massachusetts.
    Entered: September 28, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In July, 2006, the defendant, Larry Ahart, was indicted on charges of unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (a ), and being an armed career criminal, in violation of the armed career criminal act (ACCA), G. L. c. 269, § 10G (c ). The defendant was convicted of the firearms charge in 2009, and a second jury found the defendant guilty of the subsequent offender allegations in 2011. Pursuant to the ACCA, the defendant was sentenced to a mandatory minimum term of imprisonment of not less than fifteen years and not more than fifteen years and one day. In an earlier appeal, we affirmed his convictions and orders denying several posttrial motions. See Commonwealth v. Ahart, 88 Mass. App. Ct. 1114 (2015).

The defendant now appeals from the denial of his motion for relief from unlawful confinement. He contends that two of the three predicate convictions that render him an armed career criminal under § 10G (c ) were not "the results of separate, sequential prosecutions" as the ACCA requirement has been interpreted by Commonwealth v. Resende, 474 Mass. 455, 469 (2016). We affirm, substantially for the reasons set out in the motion judge's thorough and well-reasoned decision.

Discussion. We review questions of statutory interpretation de novo. Commonwealth v. Garvey, 477 Mass. 59, 61 (2017). The defendant's three predicate offenses are as follows. (1) In April, 2002, the defendant was convicted of assault by means of a dangerous weapon. He was placed on straight probation, but his probation was revoked, and he served an eight-month period of incarceration. That sentence was later converted to a term of straight probation, and he was released. However, on May 16, 2003, the defendant was arraigned on a charge of distributing a class B substance. On the same day he was detained for violating his probation on the 2002 offense. Five days later, on May 21, 2003, he stipulated to a violation of probation, his probation was revoked, and he was sentenced to eighteen months in the house of correction, less time served. (2) The defendant was convicted of the drug offense in June, 2003. He was sentenced to two years' confinement with ten months to serve, concurrent with the 2002 conviction. (3) In July, 2004, the defendant was convicted of assault by means of a dangerous weapon. He was sentenced to six months in the house of correction.

The defendant contends that the first and second convictions were not the product of "legally separate and sequential prosecutions," since he ultimately was reprobated and received a term of straight probation for the 2002 conviction. The defendant further maintains that he was not sentenced to a term of incarceration until he violated his probation when charged with the 2003 offense, that the 2002 and 2003 offenses therefore are not sequential, and that the offenses were not separate or sequential because his jail sentences ran concurrently with one another.

The ACCA states as follows in relevant part:

"Whoever, having been previously convicted of three violent crimes or three serious drug offenses, or any combination thereof totaling three, arising from separate incidences, ... shall be punished by imprisonment in the state prison for not less than 15 years nor more than 20 years" (emphasis supplied).

G. L. c. 269, § 10G (c ), inserted by St. 1998, c. 180, § 71.

In Resende, 474 Mass. at 469, the Supreme Judicial Court held that sentencing enhancement under the ACCA "applies only when a defendant's previous convictions of three qualifying crimes 'arising from separate incidences' were the results of separate, sequential prosecutions." "In reaching this conclusion, the court reasoned that sequential prosecutions occur when 'the first conviction (and imposition of sentence) occur before the commission of the second predicate crime, and the second conviction and sentence occur before the commission of the third crime.' " Commonwealth v. Widener, 91 Mass. App. Ct. 696, 703 (2017), quoting Resende, supra at 466-467.

The defendant maintains that Resende and Widener require reversal here because he was not "sentenced" to a term of incarceration until his probation was violated, and he had not served a completed sentence of incarceration at the time of the second offense. In Resende, the defendant was convicted of five counts of drug distribution resulting from hand-to-hand transactions that took place on five different days within a seventeen-day period. Resende, supra at 456. Moreover, "[a]ll of the counts were included in a single set of charges." Id. The court concluded that his convictions were the result of a single prosecution and therefore, represented a single "incidence" for purposes of the ACCA. Id. at 470. In Widener, this court held that the defendant's convictions did not result from "sequential prosecutions" because the guilty pleas and sentences imposed for separate crimes occurred at a single hearing and the defendant committed the criminal conduct for both predicate offenses before he pleaded guilty to either. 91 Mass. App. Ct. at 701, 704.

Here, the defendant's 2002 and 2003 convictions were for two separate crimes. They occurred over one and one-half years apart, were charged in separate complaints, and resulted in guilty pleas at separate hearings. The defendant's first conviction and imposition of sentence (probation) occurred before the commission of his second crime and imposition of sentence (incarceration). Therefore, the qualifying crimes "arising from separate incidences" were "the results of separate, sequential prosecutions." Resende, 474 Mass. at 469.

A conviction and sentence need not result in an incarceration in order to constitute a separate and sequential prosecution. The ACCA incorporates the recidivist philosophy; the "point of sentence enhancement is to punish more severely offenders who have persevered in criminal activity" after penal discipline. Id. at 467, quoting Commonwealth v. Shiffler, 583 Pa. 478, 494 (2005). Accord Commonwealth v. Baez, 480 Mass. 328 (2018). More succinctly, the ACCA permits an enhanced penalty for a subsequent offense in a separate prosecution once the defendant has been given an "opportunity for reform." Resende, supra at 468 n.21, quoting Commonwealth v. McClintic, 589 Pa. 465, 483 (2006).

The defendant was given an opportunity to reform when he was placed on probation. "The purpose of probation rather than immediate execution of a term of imprisonment in large part is to enable the [convicted] person to get on his feet, to become law abiding and to lead a useful and upright life under the fostering influence of the probation officer" (quotation omitted). Commonwealth v. Wilcox, 446 Mass. 61, 64 (2006). See Commonwealth v. Eldred, 480 Mass. 90, 95 (2018) ("The primary goals of probation are twofold: rehabilitation of the defendant and protection of the public from the defendant's potential recidivism"). Here, "the punishment imposed against [the] offender," i.e., probation, "failed to deter him from further infractions, [and] a harsher and more severe penalty [was] justified" under the ACCA. Resende, 474 Mass. at 468, quoting State v. Lohrbach, 217 Kan. 588, 591 (1975).

The defendant's contention that sequential and separate prosecutions require a completed period of incarceration, and not straight probation, is also belied by the plain language of the statute. The ACCA provides enhanced penalties for a defendant who has been "previously convicted." This language may be contrasted with "one provision in the habitual criminal statute, G. L. c. 279, § 25 [ (a ), which] provides for an enhanced penalty where a defendant has two prior convictions resulting in State or Federal prison sentences of three years or more." Commonwealth v. Garvey, 477 Mass. at 59. As the motion judge aptly noted, if the Legislature wanted to require that the defendant serve all or part of a State or Federal prison sentence for purposes of enhanced sentencing under the ACCA, it knew how to do so, and "would have inserted appropriate language to that effect." Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171, 176 (1981). See Resende, supra at 463 ("[W]e ... seek guidance from ... the language and construction of related statutes" [quotation omitted] ).

Having decided that the convictions and sentences in this case were separate, distinct, and sequential, there is no basis for the defendant's argument that concurrent sentences violated the statute. Contrast Resende, supra at 469-470. Cf. Commonwealth v. Keane, 41 Mass. App. Ct. 656, 660-661 (1996) (sentencing of defendant as habitual offender was proper even though sentences for two predicate convictions were served concurrently), cited with approval in Garvey, supra at 64; Commonwealth v. Hall, 19 Mass. App. Ct. 1004 (1985), S.C., 397 Mass. 466 (1986) (same).

Order denying motion for relief from unlawful confinement affirmed.

      The panelists are listed in order of seniority.

      The defendant maintains that "a term of straight probation is not a sentence." Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 576 (2001). The partial quotation from Rodriguez illuminates the distinction between continuing jeopardy and double jeopardy for purposes of sentencing following a violation of straight probation. See Commonwealth v. Bruzzese, 437 Mass. 606, 617 (2002). In other respects, such as the right to appeal, a conviction with imposition of straight probation constitutes a final judgment. See Rodriguez, supra, citing Commonwealth v. Reed, 364 Mass. 545, 546-547 (1974). The distinction drawn in Rodriguez is inapplicable to this case. Under the ACCA the relevant inquiry is whether the defendant was convicted and sentenced in a manner that permitted him an opportunity to reform. See Resende, 474 Mass. at 467-468.


text:
    COMMONWEALTH v. Bernard LABROAD.
    17-P-697
    Appeals Court of Massachusetts.
    Entered: September 27, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Bernard Labroad, was convicted by a jury in 2009 of rape of a child, G. L. c. 265, § 23. On appeal, the Supreme Judicial Court held that defense counsel should have been allowed to review records of the psychologist who treated the victim. Commonwealth v. Labroad, 466 Mass. 1037, 1039-1040 (2014). After reviewing those records, the defendant filed a motion for a new trial based on one statement in a progress note. After an evidentiary hearing at which the psychologist testified, a Superior Court judge denied the motion. Concluding that the progress note does not cast real doubt on the justice of the conviction because it is inadmissible hearsay, we affirm.

1. Standard of review. "[W]e review the denial of a motion for a new trial for 'a significant error of law or other abuse of discretion.' " Commonwealth v. Duart, 477 Mass. 630, 634 (2017), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). To prevail on a motion for new trial based on newly discovered evidence, the defendant "must demonstrate, first, that the evidence was previously unknown to him ... and, second, that the evidence 'casts real doubt on the justice of the conviction.' " Commonwealth v. DiBenedetto, 475 Mass. 429, 438 (2016), quoting Commonwealth v. Grace, 397 Mass. 303, 305 (1986). To determine whether evidence casts real doubt on the justice of the conviction, we must "decide not only whether [the evidence] is material and credible, but whether it is admissible." Commonwealth v. Wright, 469 Mass. 447, 462 (2014).

2. Prior inconsistent statement. The motion judge, who was also the trial judge, correctly determined that the progress note does not qualify as a prior inconsistent statement because the statement in it is not attributable to the victim. See Commonwealth v. Beauregard, 25 Mass. App. Ct. 983, 984 (1988) ("To qualify as a prior inconsistent statement by the victim, it must be shown that the words were attributable to the victim"). If the defendant is unable "to show with sufficient certainty that the words ... were reflective of a statement to that effect by the victim as contrasted with a conclusion by the" medical professional, the statement is not admissible as a prior inconsistent statement. Id.

Here, the record supports the motion judge's finding that the statement at issue is a conclusion of the psychologist. The relevant portion of the progress note reads, "I also made this offer for [the victim's] friend ..., who is feeling stressed herself by this and her role as the only person who knew shortly after the abuse occurred." This statement details the psychologist's offer to counsel the victim's friend. In explaining this notation, the psychologist testified that the time frame, "shortly after," was his "best professional estimate" or his "surmise." The motion judge was entitled to credit this testimony and find that the progress note reflected the psychologist's belief and was not a statement by the victim. See Commonwealth v. Lally, 473 Mass. 693, 706 n.15 (2016).

3. General Laws c. 233, § 79G. General Laws c. 233, § 79G, creates an exception to the hearsay rule that permits medical records and reports to be admitted in evidence, but only as "evidence of the fair and reasonable charge for such services or the necessity of such services or treatments, the diagnosis of said physician ..., the prognosis of such physician ..., [and] the opinion of such physician ... as to proximate cause of the condition so diagnosed." See Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 257 (2008) (medical records of victim admissible to show medical history, treatment at hospital, medical opinions, and diagnosis). See also Commonwealth v. Medeiros, 456 Mass. 52, 54-55 & n.4 (2010) (evidence in medical record that victim had been raped vaginally but not orally admitted as "an act of discretion" where counsel failed to subpoena victim's medical records pursuant to G. L. c. 233, §§ 79, 79G ).

Although the progress note is the type of document contemplated under G. L. c. 233, § 79G, the defendant does not seek to use the evidence to show the diagnosis, prognosis, or opinion of the psychologist as to the "proximate cause of the condition so diagnosed." See Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 724 (2016) (ambulance records with references to defendant's intoxication admissible under § 79G to show "necessity of treatment, or of the diagnosis, prognosis, or opinion" of emergency medical technician). Cf. Commonwealth v. Irene, 462 Mass. 600, 616 (2012) (hospital records must be germane to medical treatment or history to be admitted under § 79 ). The statement at issue, documenting the psychologist's offer to counsel the victim's friend, has no apparent relationship to the victim's medical treatment or history at all. Moreover, the defendant seeks to admit the statement only to contradict the victim's testimony that she told her friend about the abuse years later, not "shortly after" the abuse occurred. The defendant has not shown that he intends to use the progress note to show the psychologist's diagnosis, prognosis, or opinion as to the cause of any condition diagnosed.

" Section 79G, like § 79, is intended to relieve physicians, nurses, dentists, and the other listed professionals of the hardship of attending court as witnesses, depriving patients of their care, where they are unlikely to remember specific patient interactions and their testimony 'would ordinarily add little or nothing to the information furnished by the record alone.' " Palacios, 90 Mass. App. Ct. at 726, quoting Irene, 462 Mass. at 614. Here, any presumption of reliability is defeated because the defendant seeks to admit evidence for purposes beyond the scope of § 79G. Accordingly, the judge did not err in denying the motion for a new trial.

Order denying motion for new trial affirmed.

      Section 79G, second par., includes psychologists (among other treatment providers) within the definition of physician.

      Because the defendant did not raise the claim that the progress note was admissible as a prior recollection recorded in his motion for a new trial, we need not address it here. See Commonwealth v. Hampton, 64 Mass. App. Ct. 27, 33 n.8 (2005). In any event, because the psychologist was unable to testify that the progress note reflected, at the time it was made, an accurate description of the victim's statement, the foundation for admission as a prior recollection recorded was not made. See Commonwealth v. Morgan, 449 Mass. 343, 366 (2007).


text:
    John DOE, Sex Offender Registry Board No. 32667 v. SEX OFFENDER REGISTRY BOARD.
    17-P-1138
    Appeals Court of Massachusetts.
    Entered: September 27, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, John Doe, appeals from a Superior Court judgment affirming the Sex Offender Registry Board's (board's) classification of Doe as a level three sex offender. "In conducting our review, we 'give due weight to the experience, technical competence, and specialized knowledge' of the board." Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615 (2010) (Doe No. 151564 ), quoting G. L. c. 30A, § 14 (7). We affirm.

1. Background. Doe was convicted of four counts of rape and abuse of a child under the age of sixteen and four counts of indecent assault and battery on a child under the age of fourteen. The board notified Doe of its recommendation that he be classified as a level three sex offender. Doe requested a hearing, which was initially scheduled for October 14, 2015.

Prior to the hearing, Doe, through counsel, filed a motion to continue and a motion for expert funds. The motion for funds sought authorization of $3,000 "for the consultation and testimony of an expert witness ... regarding the applicability of his age to his circumstances of the factors which will guide the hearing examiner's decision." Both motions were allowed and the hearing was rescheduled for March 23, 2016. Doe's counsel was not aware that his motion for expert funds had been allowed.

Doe's counsel refiled both motions at the hearing on March 23, 2016, contending that no action had been taken on his previously filed motion for expert funds. The hearing examiner denied both motions indicating that the board's updated regulations consider the impact of advanced age on recidivism. The hearing proceeded that day via video conference, during which there were a few technical interruptions. The board also moved to enter documents in evidence which had not previously been provided in discovery. A decision classifying Doe as a level three sex offender issued on April 14, 2016.

Doe sought judicial review of the classification pursuant to G. L. c. 30A, § 14, and G. L. c. 6, § 178M. Doe's motion for judgment on the pleadings was denied and the board's decision was affirmed. This appeal followed.

2. Expert funds. Doe claims that it was a violation of due process for the hearing examiner to deny his motion for funds after a prior motion had been allowed. It is the offender who bears the burden "to identify and articulate the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert." Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008) (Doe No. 89230 ).

Doe did not carry that burden here. The record is unclear as to why Doe's counsel did not receive the first "allowed" motion for expert funds. However, by the time the second motion was filed, the board's regulations had been updated to address the impact of advanced age on an offender's risk and danger and thus expert testimony was not required. Contrast Doe No. 151564, 456 Mass. at 620-623 (board's regulations did not contemplate impact of age on recidivism and therefore implication of age studies could not be ascertained without expert assistance).

Passing on the question whether actions of the hearing examiner amounted to a due process violation, Doe suffered no prejudice therefrom. The hearing examiner considered Doe's age in conjunction with factor 30 of the new regulations, gave "mitigating weight" to it, and found that it did not have a significant mitigating effect because Doe was not yet age sixty. In his motion for funds, Doe did not assert any specific circumstances special to him that warranted an expert. Instead, he made a general assertion that an expert was necessary to determine "the applicability of his age to his circumstances." Cf. Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 609-610 (2013) (where board's guidelines were outdated and Doe supported her motion for expert funds with significant evidence that guidelines were inapplicable to her, her motion was not generic and therefore was wrongfully denied). The hearing examiner did not misapply the age factor in finding Doe to be at a high risk of reoffending, particularly in light of the fact that age was one of several factors used to make her decision.

3. The hearing. Doe claims that conducting the hearing by video conference was error because malfunctions in the audiovisual and sound caused his counsel to be distracted. He also claims that the hearing examiner erred in allowing the board to present certain documents that had not been previously provided in discovery.

A classification hearing via video conference does not violate procedural due process. Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79 Mass. App. Ct. 683, 692-695 (2011). Here, prior to the hearing, the hearing examiner established a protocol to be used if the video connection was lost. During the hearing, the video feed was lost once, and the sound was lost twice. On each occasion, the problem was immediately rectified and the hearing continued where it had left off. Doe's counsel never contended that he was distracted during the hearing thereby preventing him from presenting his case. Notably, the hearing was conducted without witness testimony, and instead was presented through documents. There was no error.

Next, the contested documents submitted in evidence by the board at the hearing consisted of the Superior Court docket sheet of the index crime, the docket sheet and decisions of this court affirming Doe's convictions, and the Supreme Judicial Court's denial of Doe's request for further appellate review. The hearing examiner had the regulatory authority to admit these documents and could properly take administrative notice of this evidence. See 803 Code Mass. Regs. § 1.19(1)(f) (2016). See also Jarosz v. Palmer, 436 Mass. 526, 529-530 (2002). While it would have been better practice to provide these documents to Doe's counsel prior to the hearing, the hearing examiner did not err in admitting them. The hearing examiner kept the record open to allow Doe's counsel time to review the records and to object to their admission. Doe's counsel took this opportunity and responded that he "has no objection to the evidence being admitted for the limited purpose of showing that [Doe's] appeal had been denied." The hearing examiner used this information for the limited purpose of assessing Doe's refusal to participate in sex offender treatment consistent with factor 24 of the board's regulations (less than satisfactory participation in sex offender treatment). There was no error.

Judgment affirmed.

      The regulations were updated on January 29, 2016. As part of this update, the board promulgated factor 30 (advanced age) and the impact of the aging process on sexual recidivism. See 803 Code Mass. Regs. § 1.33(30) (2016).

      As required by G. L. c. 6, § 178K (1), the board "has promulgated guidelines 'for determining the level of risk of reoffense and the degree of dangerousness posed to the public' " in connection with a sex offender's classification hearing. Doe No. 89230, 452 Mass. at 772. See 803 Code Mass. Regs. § 1.33 (2016). "The guidelines have 'the force of law and must be accorded all the deference due to a statute.' " Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 811 (2006), quoting Massachusetts Fed'n of Teachers v. Board of Educ., 436 Mass. 763, 771 (2002). A hearing examiner has discretion to consider which regulatory factors to apply and how to weigh those factors based on the evidence at the hearing. Smith, supra at 811-813.


text:
    Brian LEWIS v. ROCCO REALTY TRUST.
    17-P-1253
    Appeals Court of Massachusetts.
    Entered: September 27, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On January 30, 2017, the plaintiff, Brian Lewis, filed a complaint alleging that, nearly three years earlier, he slipped and fell on ice that had accumulated in a parking lot owned by the defendant, Rocco Realty Trust (trust). Lewis claimed that the trust caused the fall because it negligently failed to inspect and maintain the property. The trust filed an answer asserting, among other defenses, that the complaint should be dismissed because Lewis failed to provide timely notice of his claim as required by G. L. c. 84, § 21. It then moved for judgment on the pleadings, see Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). A judge of the Superior Court allowed the trust's motion and the complaint was dismissed "for failure to provide notice pursuant to G. L. c. 84, §§ 18 and 21." Lewis filed a motion for reconsideration, which the judge denied. Before us is Lewis's appeal from both orders. We affirm.

Background. The complaint alleged that on February 6, 2014, Lewis was lawfully on the premises located at 200 Old Webster Road in Oxford. The trust owns the premises and is responsible for inspecting and maintaining it. On that day, the trust negligently failed in its duties, causing ice to accumulate on the premises. Lewis slipped on the ice and was injured. He has incurred medical expenses, is disabled, and "has suffered great pain of body and mind."

In support of its rule 12 (c) motion, the trust attached an October 2, 2014, letter sent by counsel for Lewis to the trust. The letter identified the date of the incident, stated that Lewis had suffered injuries "due to the negligent condition" of the premises, and sought compensation for Lewis's injuries and losses. However, the letter did not specify that Lewis had fallen, nor did it mention that an accumulation of ice was the alleged cause. The trust also submitted the affidavit of trustee Patricia Robbins, who asserted that the trust was unable to investigate the circumstances of the fall as a result of Lewis's failure to provide it with timely notice.

Lewis filed a memorandum of law in opposition to the rule 12 (c) motion in which he set forth additional factual allegations. Specifically, Lewis claimed that the trust was aware of his fall because its agent had witnessed it. He further argued that, due to weather conditions and the way in which the premises is used, the condition that existed on February 6, 2014, could not have been preserved.

Ultimately, the judge ruled that Lewis's "failure to provide complete, detailed and timely notice to the defendant" of his injury "is fatal to the action." He concluded that the trust was prejudiced by the delay because "witness availability, etc., would have been more discoverable within [the prescribed thirty-day period] than [ten] months later when incomplete notice of the injury was provided."

Discussion. There is some confusion in the record over whether judgment entered pursuant to rule 12 (c) or Mass. R. Civ. P. 56, 365 Mass. 824 (1974). Pursuant to rule 12 (c), a motion for judgment on the pleadings shall be treated as one for summary judgment where the parties submit and the judge does not exclude additional materials. In such circumstances, "all parties shall be given reasonable opportunity to present all material made pertinent to" a rule 56 motion. Mass. R. Civ. P. 12 (c). It is clear from the record that matters outside the pleadings, specifically Robbins's affidavit and the notice dated October 2, 2014, were presented to the judge and considered by him. Therefore, pursuant to rule 12 (c) we treat the judge's order as one allowing summary judgment.

Summary judgment is appropriate if the materials identified in rule 56"show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "We review the allowance of a motion for summary judgment de novo to determine whether the moving party has established that, viewing the evidence in the light most favorable to the opposing party, 'there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law' " (citation omitted). Scarlett v. Boston, 93 Mass. App. Ct. 593, 596-597 (2018).

By statute, a plaintiff seeking to recover for injuries sustained as a result of an accumulation of ice is required, within thirty days, to provide the defendant with written notice of "the time, place and cause of said injury." G. L. c. 84, § 18. See G. L. c. 84, § 21 ; Perry v. Medeiros, 369 Mass. 836, 842 (1976). "The notice requirement applies generally to all persons sought to be charged with liability" for injury caused by an accumulation of ice, Lindahl v. Sullivan, 361 Mass. 863, 864 (1972), and it is a "prerequisite to a party bringing this cause of action." Wolf v. Boston Water & Sewer Comm'n, 408 Mass. 490, 494 (1990). "A complaint alleging a right to damages under G. L. c. 84 must allege the giving of notice." Farrell v. Boston Water & Sewer Comm'n, 24 Mass. App. Ct. 583, 590 (1987).

The complaint here fails to allege that Lewis provided the trust with notice pursuant to G. L. c. 84, § 21. Moreover, it is undisputed that the notice ultimately given was not timely and failed to include information regarding the time, place and cause of the injury or damage as required by G. L. c. 84, § 21. Failure to give the required notice, however, "shall not be a defense under this section unless the defendant proves that he was prejudiced thereby." G. L. c. 84, § 21. To prove prejudice, the trust submitted the affidavit of its trustee, Robbins, who averred that the trust was prejudiced because it was unable to conduct a meaningful investigation of the incident.

Lewis contends that Robbins's affidavit merely alleged prejudice from the delinquent notice, but failed to prove it. At argument, Lewis proposed that prejudice in this context should be determined by the jury, or at least by the judge after an evidentiary hearing. We are not persuaded. While we agree that Robbins's affidavit provided few details regarding the specific nature of the prejudice suffered, it offered more than mere conjecture. The affidavit stated that the trust was unable to conduct a meaningful investigation because notice was not received until eight months after the accident and failed to mention that the fall was caused by an accumulation of ice and snow. From these undisputed facts, the judge could reasonably infer that witnesses present on the day of the fall may no longer be available and that, even if they were, their memories may have faded between February and October, 2014. Moreover, it was fair for the judge to infer that the scene of the accident was substantially different when the trust received Lewis's notice. While the trust did not object to the content of Lewis's notice and was not entitled to dismissal on the ground that ice was not mentioned, see G. L. c. 84, § 20 ; Watts v. Rhodes, 325 Mass. 697, 701 (1950), we think it plain that the trust could not properly investigate the condition of the premises on the day of Lewis's fall without knowing that it should investigate an accumulation of ice.

Once the trust submitted additional materials in support of its rule 12 (c) motion, the burden shifted to Lewis, "by affidavits or as otherwise provided" in rule 56, to "set forth specific facts showing that there is a genuine issue for trial." Mass. R. Civ. P. 56 (e). This he did not do. The judge was entitled to disregard Lewis's statements in the memorandum of law in opposition to the rule 12 (c) motion because they were not in affidavit form. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 710-711 (1991). He also did not err in denying Lewis's motion for reconsideration because Lewis's affidavit was filed more than one month after judgment entered. See id. at 711 ; Mass. R. Civ. P. 56 (c) (adverse party may file opposing affidavits "prior to the day of hearing").

For all of these reasons, we discern no error in the order of dismissal. See Ram v. Charlton, 409 Mass. 481, 489 (1991) ("timely written notice of the injury is a clear condition precedent to the existence of a cause of action"); Wolf v. Boston Water & Sewer Comm'n, 408 Mass. at 494 (plaintiff's failure to provide notice "prevents the claim from being heard").

Judgment affirmed.

Order denying motion to reconsider affirmed.

      The notice was actually sent eight months after the fall.

      The Massachusetts Academy of Trial Attorneys has argued in an amicus brief that the judge improperly converted the rule 12 (c) motion into one for summary judgment without advance notice to the parties. We need not address this issue because it was not raised in Lewis's brief. See Bongaards v. Millen, 440 Mass. 10, 19 n.6 (2003) ("this court ordinarily restricts its discussion to the arguments made by the parties and does not address arguments of amici curiae"); Mass. R. A. P. 16 (b) (4), as appearing in 411 Mass. 1602 (1992) ("The appellate court need not pass upon questions or issues not argued in the brief"). In any event, we discern no prejudice from lack of notice where Lewis did not object to the judge's consideration of Robbins's affidavit and was given an opportunity to respond to it.

      While Lewis's complaint makes no reference to G. L. c. 84, "[w]e discern nothing on the face of the pleadings or elsewhere in the record to suggest an injury qualitatively distinct from that cognizable under G. L. c. 84." Gallant v. Worcester, 383 Mass. 707, 712 (1981).

      Indeed, it appears that ice was not mentioned as the cause of Lewis's injury until the complaint was filed nearly three years after the event.

      In any event, the trust's actual or constructive notice of Lewis's injuries would not obviate the written notice requirement. Ram v. Charlton, 409 Mass. 481, 489 (1991).


text:
    ADOPTION OF YELENA.
    18-P-148
    Appeals Court of Massachusetts.
    Entered: September 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   Following trial, a Juvenile Court judge concluded that Yelena was a child in need of care and protection and that her parents were unfit to parent her. Decrees entered terminating their parental rights. Both parents have appealed. The father claims error in several of the judge's findings of fact and conclusions of law, and in his decision not to order postadoption visitation. The mother does not challenge the judge's finding that she is unfit and that termination of her rights is in Yelena's best interests, but claims that the judge abused his discretion when, on the seventh day of trial, he denied her fourth attorney's motion to withdraw. We affirm.

Background. We summarize the relevant facts, which have ample support in the record.

Yelena was born in December, 2012, and is the mother's second child. The mother's first child, Bethany, was removed from her custody in 2008, after the Department of Children and Families (department) received several reports pursuant to G. L. c. 119, § 51A ( § 51A reports), alleging that the mother was severely intoxicated while caring for Bethany. Bethany's father was granted custody, and Bethany has lived with him in Peru since October, 2008.

Thereafter, the mother was homeless for a period of five years. In 2009, she began a relationship with the father after meeting him at a homeless shelter. The relationship was marked by domestic violence. The mother was repeatedly hospitalized, for both psychiatric reasons and alcohol abuse. In 2012, the mother became pregnant. The father obtained housing, and the mother moved in with him approximately one month before Yelena was born.

The department became involved with the family one month after Yelena was born. On January 29, 2013, the department received a § 51A report alleging neglect of Yelena as a result of the mother's psychiatric hospitalization. After the mother called the police multiple times between 4 A . M . and 5 A . M ., officers found her speaking nonsensically and tightly holding Yelena. The mother would not release Yelena and the child had to be forcibly removed from her arms. The mother had been caring for Yelena alone for a few days while the father worked nights. A social worker was assigned to the case, and she spoke with both parents. The father told the social worker that he encouraged the mother to eat before she drinks, in order to coat her stomach.

On April 8, 2013, another § 51A report was filed after concerned citizens reported that a woman appeared intoxicated while carrying a baby on her chest. Responding police officers found the mother at a laundromat with the father. Yelena was in a baby carrier on the mother's chest. The mother had an odor of alcohol, her eyes were glassy, and she was unsteady on her feet. Yelena was removed from the mother and given to the father, who appeared to be sober. The family's assigned social worker developed an emergency plan whereby the parents would not use alcohol or bring alcohol into the home, and the mother would never be left alone with Yelena. Later that day, police responded to another report that the mother was staggering and falling. Officers found her leaving a liquor store with four twenty-four ounce cans of beer and placed her in protective custody.

On May 2, 2013, the parents fled to Maryland with Yelena. On May 9, 2013, the department filed an emergency petition alleging that Yelena was a child in need of care and protection. The family returned to the Commonwealth after Maryland's social services department located and took custody of Yelena. Thereafter, the department implemented numerous service plans in an effort to reunify the family. Among other things, the plans required the parents to meet monthly with the department and sign releases, engage in substance abuse and mental health evaluations, provide copies of the evaluations to the department, provide information for early intervention services for Yelena, call the foster mother twice per week to discuss Yelena's progress, and visit with Yelena. However, the parents' communication with the foster parents and Yelena's medical providers was terminated due to the mother's behavior. Thereafter, the parents' service plans were amended to include that they refrain from using or abusing alcohol following several instances of (1) domestic violence wherein both parents were drinking, and (2) the mother being taken into protective custody. The mother also appeared for visits with Yelena with an odor of alcohol. The father was required to attend a batterer's intervention program due to the incidents of domestic violence. He never completed this program because he does not believe he is a batterer.

The mother and the father were married and living together at the time of trial. The mother has denied her alcohol abuse and has not taken meaningful steps to address her problem. She does not believe that alcohol played a role in the removal of her children. Although the father is aware that the mother abuses alcohol, he does not believe that it places Yelena at risk. He testified that the mother is the most important woman in his life, that he would coparent with the mother if Yelena is returned to his custody, and that he cannot force the mother to stop drinking.

After analyzing the factors set forth at G. L. c. 210, § 3 (c ), the judge concluded that factors (ii), (iii), (iv), (vi), (vii), (viii), (ix), and (xii) supported his determination that the parents are unfit. The judge made 104 findings of fact and thirty-four conclusions of law, which "are both specific and detailed, demonstrating, as we require, that close attention was given to the evidence." Adoption of Don, 435 Mass. 158, 165 (2001). He determined that the parents' unfitness is likely to continue, such that termination of their parental rights is in Yelena's best interests.

Discussion. 1. Father's appeal. a. Erroneous findings. The father claims that several of the judge's factual findings are clearly erroneous. Those findings relate to the father's employment, his engagement in services, his level of insight into the mother's mental health and alcohol abuse issues, and his lack of knowledge of Yelena's special needs. These claims of error, however, challenge the judge's credibility assessments and his weighing of the evidence, to which we accord substantial deference. Adoption of Peggy, 436 Mass. 690, 702, cert. denied sub nom. S.T. v. Massachusetts Dep't of Social Servs., 537 U.S. 1020 (2002). The judge was in a "superior position to evaluate witness credibility." Adoption of Cadence, 81 Mass. App. Ct. 162, 166 (2012). Having carefully reviewed the nearly 2,000 page record in this case, we see no reason to disturb his view of the evidence. Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

b. Unfitness. Taken together, the judge's findings amply support his ultimate conclusions that (1) the father has not corrected the deficiencies that render him unfit to parent Yelena or act in her best interests, and (2) termination of the father's rights is in Yelena's best interests. There was overwhelming evidence that the mother's alcohol abuse endangered Yelena. Yet the father has refused to address this chronic problem. He married the mother before the end of trial and testified that he planned to coparent with the mother if Yelena was returned to his custody. We do not fault the father's loyalty to the mother, but their continued relationship is not in Yelena's best interests. Their history of coparenting has significant "prognostic value," Adoption of George, 27 Mass. App. Ct. 265, 268 (1989), and the judge was not required to return custody of Yelena to the father and risk injury to her before concluding that the father is unfit and that termination of his rights is in Yelena's best interests. Adoption of Inez, 428 Mass. 717, 721 (1999).

"Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993). Mindful of this standard, we agree that there was clear and convincing evidence of the father's shortcomings that put Yelena's welfare in jeopardy. While it is clear from the record that the father loves Yelena, it is also clear that he lacks insight regarding the mother's alcohol abuse and has not recognized or taken responsibility for the danger it would pose to Yelena should she be returned to his care. Care & Protection of Three Minors, 392 Mass. 704, 712 (1984).

c. Postadoption visitation. The judge ordered posttermination visitation between the father and Yelena because "there was some evidence of a bond" between them. However, he declined to order postadoption visitation, "determining instead that it would be in the best interest of the [c]hild if postadoption visitation was left to the judgment of the adoptive family." The father claims error in this visitation order.

It is well-settled that "[t]he judge may properly decline to order visitation when the adoptive parent's discretion to make decisions regarding contact will adequately serve the child's best interests." Adoption of Cadence, 81 Mass. App. Ct. at 168. The father does not claim that the adoptive parents will not act in Yelena's best interests. The purpose of postadoption visitation "is not to strengthen the bonds between the child and h[er] biological mother or father, but to assist the child as [s]he negotiates ... the tortuous path from one family to another." Adoption of Vito, 431 Mass. 550, 564-565 (2000). While a better practice would have been for the judge to provide a more detailed explanation of his reasons for declining to order postadoption visitation, there was ample evidence supporting his decision. Yelena has lived with the preadoptive family since she was five months old, and her relationship with the preadoptive parents represents the principal parent-child relationship in her life. See id. at 563-564. She "has formed strong, nurturing bonds with [her] preadoptive family." Id. at 563. In the circumstances here, where the preadoptive foster parents (1) have provided the principal parent-child relationship, (2) the department has approved adoption by the preadoptive parents, and (3) the preadoptive parents are open to Yelena's visitation with the father, we discern no abuse of discretion in the judge's assessment that leaving postadoptive visitation in the discretion of the adoptive parents was in Yelena's best interests.

2. Mother's appeal. Four attorneys were appointed to represent the mother over the course of the four years that this case was pending. Three of those attorneys were allowed to withdraw because they were not able to effectively communicate with the mother. The mother's fourth appointed attorney (trial counsel) sought to withdraw for the same reason shortly after he was appointed. That motion to withdraw was denied.

There were numerous delays in the pretrial proceedings due to the mother's failure to appear, her panic attacks, and the difficulty of securing a Russian interpreter for the mother. Ultimately, the trial began approximately one year after trial counsel's appointment. At a sidebar conference preceding the seventh day of trial, the mother's trial counsel informed the judge that the mother again had asked him to withdraw. Consequently, trial counsel moved to withdraw on the grounds that (1) the mother did not believe he was advocating in her best interests, and (2) the mother was found competent to stand trial and wished to proceed pro se. The judge denied the motion, reasoning that "competency to represent [oneself] in a proceeding before the court is a different type of competency and requires a different set of skills than competen[ce] to stand trial," and the "mother does not have that set of skills." He advised the mother of his conclusion that she could not receive a fair trial if she represented herself. In response, the mother complained that her attorney "insists that I have a mental problems or I have hallucinations ... and I'm telling them that I have no psychosis, I've never had psychosis in my life ... I have no medical record." The judge interjected that "[w]e're not talking about that. We're talking ... about your ability to participate in this proceeding," and he stated that "[w]e're going to get through this trial."

We review the judge's denial of a motion to discharge counsel for abuse of discretion. See Kiley, petitioner, 459 Mass. 645, 649 (2011) ; Adoption of Olivia, 53 Mass. App. Ct. 670, 675 (2002). This discretion is especially broad when the request is made on the eve of trial or later. See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). Before allowing an attorney's motion to withdraw, the trial judge "must be confident that [the moving party is] adequately aware of the seriousness of the [proceedings], the magnitude of [her] undertaking, the availability of advisory counsel, and the disadvantages of self-representation" (quotation omitted). Adoption of William, 38 Mass. App. Ct. 661, 665 (1995).

We are not persuaded by the mother's argument that the judge abused his discretion when he denied trial counsel's motion to withdraw without hearing the mother's stated reasons. The record reflects that the judge did consider the mother's reasons: that she had been found competent to stand trial and that she believed that trial counsel was not advocating in her best interests because he thought she suffered from mental illness. Indeed, the judge attempted to explain to the mother the difference between competency to stand trial and the ability to represent oneself in such a proceeding. The judge had presided over numerous pretrial conferences and six days of trial, in which he heard the mother testify. He was in the best position to assess the mother's ability to represent herself. Moreover, the judge properly weighed the potential for additional delay occasioned by the mother's midtrial request to proceed pro se against Yelena's right to a timely resolution of her case. See Adoption of Raissa, 93 Mass. App. Ct. 447, 455 (2018), quoting Custody of a Minor, 389 Mass. 755, 764 n.2 (1983) ("No cases of any kind have a greater claim for expedition at all stages than those involving care and custody of children"). In these circumstances, when the case had already been delayed because of the mother's failures to appear and disruptive behavior, the judge did not abuse his broad discretion.

Decrees affirmed.

      A pseudonym.

      The father was employed part time as a personal care attendant.

      The preadoptive parents are open to postadoption contact between Yelena and the father.

      The mother was born in Russia and speaks Russian and English.

      On August 11, 2015, the trial judge referred the mother to the Juvenile Court clinic for a competency evaluation based upon his observations of her behavior in court. The judge considered a September 11, 2015, report from the licensed clinical psychologist who evaluated the mother and found that she was competent to stand trial.

      The judge stated, "You don't have any concept of the legalities that are going on," and he noted that she often needs the assistance of an interpreter when complex legal concepts and terms are discussed.

      We reject the mother's assertion that the judge abused his discretion in declining to allow mother to proceed pro se with trial counsel acting as stand-by counsel. The mother made no such request.


text:
    COMMONWEALTH v. William MCMAHON.
    17-P-1418
    Appeals Court of Massachusetts.
    Entered: September 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant was convicted on two indictments charging intimidating a witness, in violation of G. L. c. 268, § 13B. The convictions were based on evidence that the defendant posted threatening messages to his ex-wife and daughter on "Facebook" at a time when they were potential witnesses in a pending sexual assault investigation. On appeal, the defendant claims that (1) the judge abused her discretion in allowing the Facebook post in evidence because it was not properly authenticated, and (2) the evidence was not sufficient to prove that he intended that his threat be communicated to the victims. We affirm.

Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The victims were the defendant's ex-wife, whom we shall call Jane, and the defendant's daughter with Jane, whom we shall call Mary. In February, 2014, the defendant was the subject of an ongoing investigation into allegations by Mary, who was then six years old, that she and the defendant had touched each other's genitals during an overnight visit at the defendant's residence.

On February 22, Lisa Desrochers and Livio Gravini saw on Desrochers's Facebook "news feed" a post by the defendant which included Mary's defaced image. The photograph was pinned to a wall by a knife. Large x's had been scratched across Mary's face, both eyes had been cut out, and a red circle had been drawn around her face, accompanied by a label reading "100 p[oin]ts!" The phrase "useless little bitch" framed her face. A "profile picture" of the defendant appeared in the feed, and the following caption accompanied Mary's defaced photograph:

"HEY BITCH EX-WIFE, IF YOUR [sic ] SEEING OUR DAUGHTER'S TARGET ... YOU BETTER WATCH YOUR BACK, YOU MADE HER LIE ABOUT ME TO THE POLICE AND SHIT AND U KNOW IT ... I'M COMING FOR YOU!!!! YOU BETTER WATCH YOUR BACK ... CUZ MY WRATH IS ABOUT TO BE RELEASED ON YOU, YOUR FAMILY AND THAT FAG BOYFRIEND OF YOURS WHO TOUCHED MY DAUGHTER!"

Disturbed by the image, Desrochers contacted the Chicopee police department and shared the post with Detective Frank McQuaid by "friending" him on Facebook. McQuaid observed the post on Desrochers's page. He also visited the defendant's Facebook page and observed the post and the defendant's profile picture.

Discussion. 1. Authentication. The defendant claims that the trial judge abused her discretion when she admitted the Facebook post in evidence because it was not properly authenticated. "Authentication of a document is a condition precedent to its admissibility." Commonwealth v. Foster F., 86 Mass. App. Ct. 734, 737 (2014). "Evidence may be authenticated by direct or circumstantial evidence," which must be " 'sufficient to support a finding that the matter in question is what its proponent claims.' Mass. G. Evid. § 901 (c) (2011)." Commonwealth v. Purdy, 459 Mass. 442, 447-448 (2011). "[B]efore admitting an electronic communication [such as a Facebook post] in evidence, a judge must determine whether sufficient evidence exists 'for a reasonable jury to find by a preponderance of the evidence that the defendant authored' the communication." Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 366 (2014), quoting Commonwealth v. Purdy, supra.

Here, there was ample evidence from which the jury could infer that the defendant authored the Facebook post. Gravini testified that the defendant, whom he had met, used Facebook to communicate with him regarding upcoming performances. The defendant often attended those performances. See Commonwealth v. Foster F., supra. Gravini and Desrochers recognized the defendant's profile picture connected to the post, and knew the defendant to be associated with the Facebook account bearing his name and image. See Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 759 (2016). Gravini, Desrochers, and McQuaid all identified the post as the one they had seen on February 22, 2014, on a Facebook page bearing the defendant's name and image, see Commonwealth v. Nardi, 452 Mass. 379, 396-397 (2008). Finally, "[t]he content of the [post] reinforced [its] link to the defendant." Commonwealth v. Alden, 93 Mass App. Ct. 438, 441 (2018). The girl in the defaced photograph was Mary and the threatening caption was addressed to Jane. The message specifically referenced Mary and the ongoing sexual abuse investigation. Simply put, these confirming circumstances sufficiently connected the defendant to the post, id., and we discern no error or abuse of discretion in its admission.

2. Sufficiency. Next, the defendant claims that the evidence was insufficient to establish that he intended for his threatening post to be communicated to the victims. To establish a violation of G. L. c. 268, § 13B, "the Commonwealth was required to prove that the defendant wilfully engaged in intimidating conduct, that is, acts or words that would instill fear in a reasonable person, and did so with the intent to impede or influence a potential witness's testimony" against the defendant. Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 535 (2010). The defendant does not dispute the threatening nature of the Facebook post or the victims' status as potential witnesses against him. The defendant argues that evidence of his intent was insufficient because the posts were "private posts, never meant to be shared with anybody." We are not persuaded.

A conviction under G. L. c. 268, § 13B, does not require that a threat actually be communicated to its target. See Commonwealth v. Valentin V., 83 Mass. App. Ct. 202, 205-206 (2013). Instead, the focus "is on the defendant's actions and intentions." Id. at 206. We have held, see id., that the witness intimidation statute parallels the threat statute, G. L. c. 275, § 2, under which the Commonwealth must prove only "that the defendant intended to communicate the threat to the third party who acts as intermediary." Commonwealth v. Troy T., 54 Mass. App. Ct. 520, 526 (2002). Thus, as with threats, the crime of witness intimidation is complete "upon the communication of the threat to the intermediary." Commonwealth v. Valentin V., supra at 204.

Here, the jury apparently found by a preponderance of the evidence that the defendant authored the Facebook post, and there is no claim that the post itself was unintentional. The evidence further established that (1) Jane used Facebook, (2) the post addressed Jane in the first person, (3) the post contained an explicit threat to Mary, and (4) the threat was published on the defendant's Facebook page. Considering these facts in the light most favorable to the Commonwealth, Commonwealth v. Latimore, supra, the jury could conclude beyond a reasonable doubt that the defendant intended for his threat to be conveyed to Jane and Mary. The post was visible not just to Gravini and Desrochers, but to all of the defendant's Facebook friends and all of their Facebook friends. Gravini and Desroches together had 5,600 Facebook friends. A rational juror could conclude that by posting Mary's defaced photograph and a threat to Jane that "I'm coming for you!!!! You better watch your back," and sharing it with an unidentified and unlimited audience, the defendant intended for the post to reach Jane and Mary and influence their behavior. See Commonwealth v. Meier, 56 Mass. App. Ct. 278, 282 (2002) (act of uttering a threat to a third party who would likely communicate it to the victim constitutes evidence of an intent to communicate the threat to the intended victim). Finally, where the investigation into Mary's allegations was ongoing and the threatening post related to those allegations, the jury could infer that the defendant "should reasonably have expected that it would be communicated to" the victims by the police conducting the investigation. Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 434 (2004).

Judgments affirmed.

      The defendant was acquitted on an indictment charging aggravated rape of a child, G. L. c. 265, § 23A, and two indictments charging indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B.

      " 'Facebook' is a social networking Web site that allows the electronic exchange of both written messages and images." Commonwealth v. Foster F., 86 Mass. App. Ct. 734, 735 n.2 (2014).

      Gravini is a performer, singer, and songwriter, with nearly 5,000 Facebook "friends." Desrochers managed Gravini's Facebook page and has approximately 600 Facebook "friends." Both Gravini and Desrochers were Facebook friends with the defendant, and the defendant used Facebook to communicate with Gravini regarding his performances.

      Before trial, the defendant filed a motion in limine to preclude evidence of the Facebook post on the ground that it was not properly authenticated. The judge held an evidentiary hearing at which McQuaid, Gravini, and Desrochers testified, and concluded that the Commonwealth had established by a preponderance of the evidence that the defendant authored the Facebook post. The defendant does not challenge this ruling by the judge, but argues that the Commonwealth failed at trial to lay an adequate foundation from which the jury could infer that the defendant authored the post. We therefore confine our discussion to the evidence at trial.

      We note that the judge properly instructed the jury after the evidence was admitted that, ultimately, the decision on authentication was theirs to make. Specifically, she instructed the jury that they "may not consider the Facebook material unless [they] determine[d] it was more likely than not ... authored by the defendant."

      We are not persuaded by the defendant's argument that his Facebook page was private. First, there was no evidence regarding the privacy settings on the defendant's Facebook account. Second, the posting was visible to mere acquaintances, such as Desrochers and Gravini, and to "friends of friends," including McQuaid.


text:
    CARE & PROTECTION OF ZADIE (and a Companion Case ).
    17-P-1488
    Appeals Court of Massachusetts.
    Entered: September 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Care & Protection of Amy. The children's names are pseudonyms.

   The mother appeals from judgments of the Juvenile Court finding her unfit to parent Zadie and Amy, and awarding permanent custody of the children to the father. The judge did not terminate the mother's parental rights. The mother raises three arguments on appeal. We discern in the mother's several claims of error no cause to disturb the judgments, and affirm.

Background. We summarize briefly the findings of fact entered by the judge, which we adopt absent clear error. The mother and father met in 2000 and married in July, 2001. The children were born in 2002 and 2007. Both the mother and father have a history of mental health and substance abuse issues, and there were allegations of domestic abuse within the home. Before the instant care and protection petition was filed, the children were subject to a similar petition in 2009, and several G. L. c. 119, § 51A, reports concerning the family were filed from 2010 through 2012, all of which were investigated and screened in by the Department of Children and Families (department). The mother and father separated in 2012 after the mother obtained a restraining order against the father based on an allegation of domestic violence. The children remained with the mother.

In April, 2013, the mother and children obtained a shelter placement. Between December 31, 2013, and January 15, 2014, additional G. L. c. 119, § 51A, reports were filed alleging neglect of the children by the mother. During its investigations of these reports, the department learned that the children had expressed unhappiness with their living conditions in the shelter, were not clothed properly when attending school, lacked proper hygiene, and were often violent toward each other. The department was awarded emergency custody of the children on January 17, 2014. Both the mother and father stipulated to their unfitness to parent the children on April 1, 2015.

After the children were removed from her care, the mother was unable to continue living in the shelter and struggled to find housing. Despite the department's efforts to persuade the mother to seek a different shelter placement, including the possibility of moving into the home of the children's maternal grandmother, the mother chose to cycle between living out of her car, living at the home of her boy friend (not the father), and living at the home of the children's maternal grandfather (about which the department had already expressed safety concerns). At trial, the mother first stated that she was living with her boy friend, then stated that she was homeless, and finally stated that she was living in the maternal grandfather's home.

From the time the children were placed in the department's custody through the time of trial, the mother was continuously noncompliant with her service plan tasks and refused to engage in services. She was also unreliable in scheduling and attending visits with the children. The mother testified that she was employed at the time of trial; however, she presented no evidence concerning her income.

The father moved to New Hampshire after his separation from the mother. He collects Social Security Disability Income as a result of a back injury suffered in 1990, and receives food stamps. He was fully compliant with his service plan after the department took custody of the children. As part of his service plan the father consistently attended mental health treatment and, despite his previous denial of domestic violence allegations, completed a forty-week "Batterer's Intervention Program" at his own expense. He also "remained substance abuse free" at the time of trial.

In April, 2015, the department placed the children with the father after he rented an apartment large enough for both himself and the children. After the placement he freely allowed the department and various social workers and other service professionals to visit the home and work with the family, and the department has had no concerns with the children's care since their placement.

Discussion. "[C]ustody orders and judgments are made on the basis of a determination of the best interests of the child ...." R.H. v. B.F., 39 Mass. App. Ct. 29, 39 (1995). "[O]ur attitude toward a trial judge's decision in a custody appeal is one of substantial deference.... [O]ur task is not to decide whether we, presented with the same facts, would have made the same decision, but to determine whether the trial judge abused his discretion or committed a clear error of law." Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). Subsidiary findings made by the judge will not be disturbed unless clearly erroneous. Adoption of Gregory, 434 Mass. 117, 126 (2001).

Here, the judge properly considered the best interests of the children in making her decision. Under the father's care the children live in a stable home, supported by a stable source of income. The father takes the children to all medical and dental appointments. The children adjusted well to living with the father, and both have done well in school since being placed in his custody. The father has also shown the ability to recognize both his own problems and the problems of the children, and has been proactive in seeking services to address those problems. As discussed above, the father has been fully compliant with his service plan and is leading a sober lifestyle. Based on this evidence, as well as additional findings clearly supported by the record, we discern no error in the judge's conclusion that the father's changed circumstances made him fit to resume parental responsibilities and take custody of the children.

In contrast, the mother was unable to demonstrate any change of circumstances that would warrant a modification since she stipulated to her unfitness. The mother failed to alter her turbulent housing situation, and rebuffed opportunities to move into housing that would be appropriate for the children. See Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). She also failed to engage meaningfully in her service plan, which required both mental health and substance abuse treatment, and failed to communicate adequately with the department. See Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005). Her testimony at trial also reflected a failure to understand why such requirements were necessary. We discern no abuse of discretion in the judge's determination that the mother remained unfit to parent the children.

We also conclude that the requirement that the judge make detailed findings concerning domestic violence was satisfied. See Custody of Vaughn, 422 Mass. 590, 599-600 (1996). In particular, finding no. 217 specifically cites Vaughn, stating that although there was no finding of domestic violence, the judge carefully considered the issue of domestic violence, acknowledged the department's concerns about the issue, and noted the father's successful completion of the Batterer's Intervention Program. The judge further stated that there were no safety concerns or allegations of physical force or violence since the children were placed with the father. Cf. Care & Protection of Lillith, 61 Mass. App. Ct. 132, 142 (2004) (requiring remand due to paucity of findings concerning domestic violence).

Finally, there is ample evidence in the record demonstrating the department's continued attempts to reunify the children with the mother. The department repeatedly made efforts to engage the mother in services in an attempt to create a suitable environment for reunification. Before and after the children were removed from the mother's custody, the department attempted to provide the mother with services, including in-home therapy and referrals for both housing and mental health services. The mother's refusal to take advantage of these services does not indicate a failure on the part of the department. See Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997). Additionally, the department cannot be faulted for canceling a proposed foster home change for the children that would have placed them closer to the mother, as the cancellation occurred after the guardian ad litem for the children objected to the move as not being in the children's best interests. Under these circumstances, there was no failure on the part of the department to make reasonable efforts to reunify the children with the mother.

Judgments affirmed.

      The third child born to the couple remains in the custody of the Department of Children and Families and is not a subject of this appeal.

      The father was found not guilty after a jury trial on an assault and battery charge.

      The shelter placement was infested with mice, cockroaches, and bedbugs.

      The mother and father were divorced on February 2, 2015.

      When he felt that his medications needed to be adjusted, the father met with his physician to correct the problem. He also sought treatment for one of the children after recognizing the symptoms of an eating disorder.


text:
    COMMONWEALTH v. Donny MATOS.
    16-P-1549
    Appeals Court of Massachusetts.
    Entered: September 25, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On appeal from his conviction of two counts of possession of child pornography, see G. L. c. 272, § 29C, the defendant claims error in (1) the denial of his motion to suppress evidence seized pursuant to a search warrant, (2) the denial of his request for additional peremptory challenges during jury empanelment, and (3) the admission of certain testimony. The defendant also contends that the two counts are duplicative, as both constitute the same "unit of prosecution." See Commonwealth v. Rollins, 470 Mass. 66, 71-74 (2014). We agree that the two counts are duplicative, but reject the defendant's other claims of error; accordingly, on count three of the complaint the judgment is vacated, the verdict is set aside, and that count is to be dismissed. On count two of the complaint the judgment is affirmed.

1. Search warrant -- staleness. Contrary to the defendant's contention, the information set forth in the affidavit supporting issuance of the search warrant was not stale. In addition to the factors suggesting that evidence of the type sought by the warrant has been recognized routinely as relatively durable, see Commonwealth v. Anthony, 451 Mass. 59, 71-72 & n.13 (2008), the affidavit included specific averments by Sergeant Cooke explaining how evidence of computer files can be recovered even long after the files have been deleted.

2. Peremptory challenges. There is likewise no merit to the defendant's contention that the denial by the trial judge of his request for additional peremptory challenges operated to deny his Sixth Amendment to the United States Constitution right to a trial by a jury of his peers and his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution. As the defendant acknowledges, the principles of Commonwealth v. Soares, 377 Mass. 461, 488 (1979), are not implicated by the circumstances of the present case. Accordingly, the defendant's claim devolves to the contention that the trial judge abused his discretion in refusing his request for additional peremptories. That claim devolves in turn to the contention that men might somehow evaluate his guilt of the crime of possession of child pornography differently from women, or somehow be less shocked or offended. We discern no abuse of discretion or error of law by the trial judge in declining to adopt such a suggestion.

3. Expert testimony. The trial judge allowed both Sergeant Peter Cooke, the lead investigator, and Sergeant Michael Hill, the executive officer of operations of the Internet Crimes Against Children's Task Force, to testify at trial. Sergeant Hill furnished general testimony explaining the nature and operation of peer-to-peer file sharing networks, and the programs facilitating them, while Sergeant Cooke explained how he connected with the defendant's computer and located specific pornographic files on it. The testimony of the two witnesses overlapped to some extent, and the defendant contends (without citation to authority) that the duplication of expert testimony constituted unnecessary, and unfair, "piling on." We discern no abuse of discretion in the trial judge's decision to allow the Commonwealth to present testimony from both experts.

We likewise discern no error in the admission of testimony by Sergeant Cooke explaining his opinion that the defendant had used and controlled the computer on which the pornographic files were stored. Though the challenged testimony may have touched on an ultimate issue in the case (that of possession and control of the computer on which the offending files were stored), it did not express an opinion concerning the defendant's guilt. See Commonwealth v. Goddard, 476 Mass. 443, 446-447 (2017). Specifically it did not address, among other things, the pornographic character of the files, whether the files depicted children, whether the defendant viewed the files, or whether the defendant acquired the files intentionally or by mistake.

Finally, we reject the defendant's contention that it was error to admit in evidence reports listing multiple files of adult pornography or bestiality found on the defendant's computer. We are without basis in the record to evaluate the defendant's claim of prejudice, since the record on appeal does not include the reports and we consequently have no means of knowing what they contained. But even if we assume, favorably to the defendant, that the reports listed numerous files of legal, albeit pornographic, material, we consider it unlikely that such files would have caused material prejudice to the defendant. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). The evidence that the defendant possessed the files containing child pornography found on his computer was overwhelming. Moreover, the trial judge instructed the jury as the evidence was admitted, and again in his final charge, that they were not to be swayed by the potentially offensive nature of file names of files other than those forming the basis for the charged offenses.

4. Duplicative convictions. We agree with the defendant that the conduct charged in the two counts of possession of child pornography constitutes but one "unit of prosecution" under the case law as it has developed, since the files were all stored on the same computer hard drive. See Rollins, 470 Mass. at 74.

Conclusion. The judgment on count three of the complaint is vacated, the verdict is set aside, and that count is to be dismissed. The judgment on count two of the complaint is affirmed.

So ordered.

vacated in part; affirmed in part.

      The charges of possession of child pornography were counts two and three of the complaint; count one, alleging distribution of child pornography, was dismissed before trial.

      Specifically, there is no indication in the record that the all-female composition of the jury resulted from the systematic use of peremptory challenges to exclude men from the jury. We note that men are not recognized as a protected class for purposes of considering possible discrimination in jury selection (or otherwise).

      In his testimony, Sergeant Cooke explained how he had conducted a forensic examination of the defendant's computer using a software program called "Encase."

      According to the defendant, the evidence was of limited relevance to the charged offense but highly prejudicial to the defendant.

      We note that the trial in the present case preceded the guidance contained in Rollins, supra, by approximately two years.

      "Because the defendant's sentence [on count three] did not increase the amount of time that he would spend incarcerated, ... we need not remand this matter for resentencing." Commonwealth v. Johnson, 461 Mass. 44, 54 n.12 (2011).


text:
    COMMONWEALTH v. Caroline GONZALEZ.
    17-P-1156
    Appeals Court of Massachusetts.
    Entered: September 24, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Dorchester Division of the Boston Municipal Court, the defendant was convicted of larceny under $250. On appeal, she claims that the trial judge erred by (1) depriving her of the opportunity to question a potential juror for bias, and (2) not excusing that same juror for cause. We affirm.

Background. At the beginning of the jury empanelment process, the judge informed the parties that she would ask the entire venire a series of questions, after which she would conduct an individual voir dire of the jurors who responded affirmatively to the questions by raising their hands. Thereafter, as the judge explained, the parties would have the opportunity to pose their own questions "about whatever issue."

The process proceeded uneventfully until the judge questioned juror no. 6, who had raised his hand when the judge asked whether any juror knew the defendant, the attorneys, or any of the witnesses. During the subsequent individual voir dire, juror no. 6, who was employed as a police officer, told the judge that he did not know the police witnesses in the case by name, but he had seen them before. He also told the judge that he had been a police officer for thirty years and had previously testified in the same court house but did not know anyone in the court room. The judge then asked, "Is there anything about your experience as a police officer for thirty years that would make it difficult for you to be a fair and impartial in this case?" The juror answered, "No." The judge continued to question the juror and asked whether he would "be able to keep an open mind, listen to the evidence and then apply the law as [the judge] instruct[ed] the jury?" The juror replied, "That's correct." The judge then turned to the attorneys and asked if "anybody [had] any follow-up questions." The prosecutor asked the juror about his or any family member's experience working in retail jobs handling cash. After the juror responded to the question, the judge told him to take a seat in the jury box, upon which defense counsel moved to strike the juror. The judge asked counsel for an explanation, however, counsel's response was inaudible.

Thereafter, the following exchange between the judge and defense counsel ensued:

THE COURT : "Well, you had the opportunity to question him as to whether or not he felt that anybody who made a report of a crime is telling the truth, because I asked if anybody had any follow-up questions about my conversations with him as a police officer and you didn't have any follow-up questions."
"He was very unequivocal when he stated that he would be able to be open-minded. I would imagine, in [thirty] years of his experience as a police officer, he is aware that sometimes people don't tell the truth and probably weighs credibility on a daily basis."
"So I note your objection for the record, but I find him to be fair and impartial."
[ DEFENSE COUNSEL ]: "Would Your Honor allow him to come back to ask him --"
THE COURT : "No."
[ DEFENSE COUNSEL ]: "Thank you."

The remaining jurors were seated and the parties were given an opportunity to exercise their two peremptory challenges. Defense counsel challenged jurors nos. 6 and 27. After these two jurors were replaced, the judge asked whether the parties were content with the jury, and defense counsel responded, "Defendant is content." Defense counsel did not ask for additional peremptory challenges.

Discussion. The Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights "guarantee the right of a criminal defendant to a trial by an impartial jury." Commonwealth v. Andrade, 468 Mass. 543, 547 (2014). "[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Commonwealth v. Dabney, 478 Mass. 839, 848 (2018), quoting Morgan v. Illinois, 504 U.S. 719, 729 (1992). "The scope of voir dire rests in the sound discretion of the trial judge, and a determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous." Commonwealth v. Lopes, 440 Mass. 731, 736 (2004). Even under attorney-conducted voir dire, the scope of questioning remains in the discretion of the judge. Dabney, supra at 848.

The defendant first asserts that the judge improperly prevented her attorney from questioning juror no. 6 for bias. We agree with the Commonwealth that the record does not support this argument. To the contrary, as the judge observed, she had given defense counsel an opportunity to ask follow-up questions.

Next, the defendant argues that juror no. 6 should have been excused for cause. The judge did not abuse her discretion in determining juror no. 6 to be fair and impartial. In examining the juror, the judge was in the best position to evaluate his credibility. Based on the judge's observation of juror no. 6 during voir dire and the juror's explicit assurances that he could be impartial, the judge was entitled to make a finding of impartiality. See Lopes, 440 Mass. at 736. More fundamentally, as the Commonwealth notes in its brief, the defendant has failed to show that, as a result of exercising a peremptory challenge on juror no. 6, she was forced to accept a juror whom she would have challenged. As a result, there was no prejudice. See Commonwealth v. McCoy, 456 Mass. 838, 842 (2010) ("[P]rejudice generally is shown by the use of a peremptory challenge to remove the juror who allegedly should have been excused for cause together with evidence that the defendant later was forced to accept a juror he would have challenged peremptorily but was unable to because his peremptory challenges had been exhausted"). See also Commonwealth v. Nelson, 91 Mass. App. Ct. 645 (2017) (where defendant "did not use available peremptory challenge on juror" who was not excused for cause and "did not ask for additional peremptory challenges, and affirmatively accepted the jury," there was no prejudice).

Judgment affirmed.

      The facts upon which the conviction rests are not relevant to the issues on appeal; therefore, we do not recite them.

      The prosecutor asked this question of all potential jurors as it related to the underlying facts of the offense.