text:
    COMMONWEALTH v. Peter CHEM.
    17-P-962
    Appeals Court of Massachusetts.
    Entered: October 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from his conviction of assault and battery after a jury trial in the District Court. He claims that he is entitled to a new trial due to (1) ambiguity in the jury instruction on defense of another, (2) witness testimony which invaded the province of the jury, and (3) improper prosecutorial appeals to sympathy for the victim. We affirm the conviction.

Facts. On the afternoon of June 9, 2016, Julio Parissi, his girl friend, Cindy Flewelling, and their infant child arrived at the North Attleboro home of Parissi's two sons (aged twelve and fourteen), to attend a birthday party for the younger son. The boys lived with their mother, Nancy Chem, and their mother's brothers, Tiny and the defendant, who was also celebrating his own birthday.

Later that night, Parissi and Nancy met with their older son in his bedroom. Nancy scolded the boy about his grades, and he began to cry. According to Flewelling, Parissi then took the boy into a bear hug to comfort him. From outside the room, a woman screamed that Parissi was beating his son and called for help. Tiny and the defendant came into the bedroom and grabbed Parissi, threw him on the bed, and began punching him in the face and head. The defendant continued to punch Parissi after he had been knocked unconscious, causing blood to spatter on the walls.

Flewelling called 911. The police arrived to find Parissi with significant injuries to his face including swollen lips and mouth area, a cut next to an eye and scratches; Parissi also had difficulty speaking. When the police approached the defendant, he appeared intoxicated and volunteered that he had hit Parissi.

Discussion. Jury instructions. The defendant contends that the judge "erroneously intermingled principles of self-defense, and defense of another, creating ambiguity over whether the defendant had a duty to retreat before coming to the aid of [his nephew]." Since the defendant failed to object to the instructions, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (claimed error in jury instructions to which no objection made reviewed for substantial risk of miscarriage of justice).

The defendant proceeded on a theory that his actions were initially justified because he was coming to the defense of his nephew, who was being attacked by his father; after successfully getting his nephew out of harm's way, his actions were further justified because he had to protect himself from Parissi, who was then lashing out at him. Following the order of defenses raised by the facts, the judge first instructed the jury on defense of another. He stated that, in order to disprove that the defendant acted in defense of another, the Commonwealth was required to prove that a reasonable person in the defendant's position would not have believed that (1) his use of force was necessary to protect his nephew or (2) his nephew would have been justified in using such force in his own defense. This was a correct statement of the law. See Commonwealth v. Young, 461 Mass. 198, 208 (2012), quoting Commonwealth v. Martin, 369 Mass. 630, 649 (1976). See also Instruction 9.260 of the Criminal Model Jury Instructions for Use in the District Court (3d ed. 2009).

In order for the jury to assess whether it was reasonable for the defendant to have believed that his nephew would have been justified in using force in his own defense, the jury needed to be instructed on when such force is justified. The judge therefore logically went on to instruct on self-defense. Here, the judge shifted to instructing on the defendant's use of force in defense of himself. He stated that, in order to disprove that the defendant acted in self-defense, the Commonwealth had to prove that the defendant (1) did not reasonably believe that he was being attacked or was about to be attacked and that his safety was in danger, (2) did not do everything reasonable in the circumstances to avoid physical combat before resorting to force, or (3) used more force than was reasonably necessary under the circumstances. This was also a correct statement of the law. See Commonwealth v. King, 460 Mass. 80, 83 (2011). See also Instruction 9.260, supra.

We do not view the judge's transition from one instruction to the other to have created a risk that the jury believed that the defendant had a duty to retreat before coming to the aid of his nephew. We do not think it likely that the jury would come to the nonsensical conclusion that the law requires one rendering aid to retreat from the conflict, since doing so would prevent one's ability to defend the person being attacked. See Commonwealth v. Allen, 474 Mass. 162, 171 (2016) ("[G]iven the incompatible nature of intervention and retreat, we do not conclude that reasonable jurors would have construed the instructions as imposing a duty to retreat"). Under the defendant's version of the facts, Parissi had his son pinned against the wall by his throat, making the need for immediate intervention apparent. Under the circumstances, it is implausible that the jury convicted the defendant on the theory that he failed to retreat before pulling Parissi off of the boy. Indeed, it seems apparent that the jury convicted the defendant on the basis of the theory on which the Commonwealth tried the case: that the defendant used excessive force in defense of the child. The jury instructions did not give rise to a substantial risk of a miscarriage of justice.

Testimony invading province of jury. The defendant contends that a police detective's testimony invaded the province of the jury. Specifically, he argues that the detective's testimony concerning his training in victimization allowed him to take on the veneer of an expert opining that Parissi was the victim and the defendant the aggressor, and that this amounted to impermissible vouching for the credibility of the Commonwealth's only percipient witness.

At the beginning of his testimony, the detective briefly reviewed his specialized training: "Training in crime scene processing, interview and interrogation, report writing, photography.... Victimization. All sorts of training." There was no further elaboration on this training. Instead, the prosecutor immediately turned to the detective's involvement in the case. The detective detailed his observations and interviews at the scene. At the conclusion of his testimony, the detective stated that he, in consultation with a supervising officer, "formed the opinion that [the defendant] would be placed under arrest for charges related to the event." There was no attempt to connect the detective's training in victimization to his decision to arrest the defendant. There was also no vouching for any other witness in the case. This unobjected-to testimony of the detective did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Evans, 469 Mass. 834, 841-842 (2014) (without objection, testimony claimed to invade province of jury reviewed for substantial risk of miscarriage of justice).

Appeals to sympathy. The defendant claims that the prosecutor made improper appeals to sympathy in his opening statement and closing argument, to which there were no objections. See Commonwealth v. Qualls, 440 Mass. 576, 586 (2003) (failure to object to opening and closing results in review for substantial risk of miscarriage of justice). In the opening, the prosecutor stated that the crime took place at the birthday party of Parissi's son, that Parissi was no longer with his son's mother but was invited to the party, and that he attended with his girl friend. We discern no appeal to sympathy in these factual statements which simply set the scene. In the closing, the prosecutor stated that the defendant continued to punch Parissi after he was unconscious, resulting in blood-spattered walls. Again, this was not an improper appeal to sympathy but a proper argument grounded in the evidence and relevant to the issue whether the defendant used excessive force. The fact that the defendant's blows caused blood to spatter on the walls gave the jury some indication of the degree of force used. The prosecutor's statements did not create a substantial risk of a miscarriage of justice.

The defendant did object (although somewhat belatedly) to Flewelling's initial appearance on the witness stand holding an infant, revealed to be the child of Parissi. Contrary to the defendant's claim, however, the record does not reflect that the prosecutor was aware that the witness would appear with a child. The prosecutor indicated that he had understood that there would be a caretaker for the child. Upon objection, the judge excused the jury for an early lunch, allowing the witness to make childcare arrangements. In moving for a mistrial, the defendant made no claim of intentional prosecutorial misconduct. The judge found no such misconduct, and concluded that the five-minute episode caused no prejudice. The defendant asked for no other relief. In his final charge, the judge reminded the jurors of their duty to remain impartial and not to be swayed by sympathy.

Although we recognize that the display of the victim's child at trial had the potential to elicit sympathy, the episode was brief and isolated, and the case against the defendant was strong. Cf. Commonwealth v. Santiago, 425 Mass. 491, 496-498 (1997), S.C., 428 Mass. 39, cert. denied, 525 U.S. 1003 (1998) (repeated appeals to sympathy for victim in close case contributed to necessity to reverse conviction). There was no prejudicial error.

Judgment affirmed.

      We refer to certain individuals by their first names to avoid confusion among those who share surnames.

      Parissi's older son testified that his parents came into his bedroom at the end of the party. Parissi was drunk and began to scold him about his grades. The boy asked his father to leave the room so he could get some sleep before school the next day. Parissi then punched the boy in the stomach and held him against a wall with his hand around his throat. The boy then called out for the defendant, who came into the bedroom with Tiny. Together, Tiny and the defendant restrained Parissi. When they let go of him, Parissi took a swing at the defendant but missed. The defendant swung back and hit Parissi and continued to hit him. Tiny had to pull him off of Parissi. The defendant testified consistently with this version of events, except he indicated that he stopped beating Parissi on his own, when Tiny told him that Parissi had been knocked out.

      The defendant did object to the detective's reference to Parissi as the victim. Although the word "victim" should be avoided at trial, in these circumstances, see Commonwealth v. Cadet, 473 Mass. 173, 181 (2015), the jury likely understood the detective's use of the term to refer to the injured person he came upon at the scene. In view of the isolated use of the term in this context, we discern no prejudicial error.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Donald B. JOHNSON.
    17-P-1042
    Appeals Court of Massachusetts.
    Entered: October 3, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 1974 the defendant pleaded guilty to unlawfully carrying a firearm. More than forty years later, he filed a motion to vacate his plea, alleging that he had carried not a firearm, but a "starter's pistol," which "was not capable of discharging a projectile." A Superior Court judge denied the motion without an evidentiary hearing.

On appeal the defendant clarifies that he is claiming ineffective assistance of counsel based on plea counsel's failure to discover evidence that would purportedly show that the firearm was in fact a starter's pistol. To prevail on such a claim, the defendant would have to show that counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer" and, as a result, "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant's motion did not raise a substantial issue with regard to either part of this test.

The defendant did not submit an affidavit from plea counsel. He relied solely on his own affidavit, in which he alleges that, in response to requests he made in 2010 and 2011 "for information regarding the type of firearm seized from [him] in 1973, the Office of the Legal Advisor for the Boston Police Department stated that, because [his] request was 'not a public records request, there are no [responsive] documents.' " He further alleges that he "believe[s that the police department's response] means that evidence verifying the alleged firearm seized from [him] was a 'starter's pistol' does, in fact, exist." This speculative and self-serving assertion is insufficient to raise a substantial issue. See Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003). The judge therefore did not abuse her discretion in denying the defendant's motion, especially given the prejudice to the Commonwealth that "inevitably inheres in a motion seeking to overturn an ancient conviction." Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 552 (2002).

Order denying motion to withdraw guilty plea and for new trial affirmed.

      The Commonwealth contends that the defendant waived any claim of ineffective assistance of counsel because he did not fairly raise it in his motion. On the view we take of the case, we will assume that the claim is preserved.

      We deny the defendant's request that we "remand[ ] with instructions for the court below to order the Boston Police Department to produce any and all documents, however stored, [in its] possession and/or under its control regarding this case." The defendant waived this request by failing to raise it below, and we discern no substantial risk of a miscarriage of justice. See Commonwealth v. Velez, 82 Mass. App. Ct. 12, 19, (2012).


text:
    Tajuan L. HOLLOMAN, petitioner.
    17-P-741
    Appeals Court of Massachusetts.
    Entered: October 3, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 2011, the petitioner was indicted for the second degree murder of Joseph Whitley. In 2013, he pleaded guilty to so much of the indictment charging him with voluntary manslaughter. After unsuccessfully seeking a writ of habeas corpus in the Supreme Judicial Court for Suffolk County, the petitioner refiled the petition in Superior Court where it was denied. On appeal, he claims that the judge erred in denying his petition without a hearing, and that the grand jury lacked subject matter jurisdiction to indict him. We affirm.

The habeas corpus statute, G. L. c. 248, § 1, states that "[w]hoever is imprisoned or restrained of his liberty may, as of right and of course, prosecute a writ of habeas corpus, according to this chapter, to obtain release from such imprisonment or restraint, if it proves to be unlawful." Crystal, petitioner, 330 Mass. 583, 590 (1953). See O'Leary, petitioner, 325 Mass. 179, 184 (1950). "Where there is a right of appeal, however, habeas corpus 'cannot be employed as a substitute for ordinary appellate procedure.' " Kauffman, petitioner, 413 Mass. 1010, 1011 (1992), quoting Crowell v. Commonwealth, 352 Mass. 288, 289 (1967). "Consequently, [a] petition[ ] for [a] writ[ ] of habeas corpus may not be used to raise issues that should have been raised on appeal," even if an appeal was not taken. Kauffman, petitioner, supra. See Lamb, petitioner, 368 Mass. 491, 496 (1975) (Where the "alleged errors either were or could have been argued" in an appeal, they may not be brought in a habeas petition). Furthermore, a petition for a writ of habeas corpus may only be properly brought by an individual who contends that "the term of a lawfully imposed sentence has expired," or by one who bases his argument on "grounds distinct from the issues at the indictment, trial, conviction, or sentencing stage." Stewart, petitioner, 411 Mass. 566, 568 (1992), quoting Averett, petitioner, 404 Mass. 28, 30-31 (1989). See Clark, petitioner, 34 Mass. App. Ct. 191, 192 (1993).

In this petition, the petitioner seeks to challenge the validity of his indictment. Specifically, the petitioner claims that his conviction and subsequent imprisonment were invalid because the prosecutor presented evidence to the grand jury under a "John Doe Investigation." Thus, the grounds raised in this petition are not distinct from the issues at the petitioner's indictment, trial, conviction, or sentencing stage, and his petition must be dismissed. See Stewart, petitioner, supra; Averett, petitioner, supra at 30. The petitioner's remedy may not be found in a petition for a writ of habeas corpus, but rather properly lies (if at all) in a motion under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See McCastle, petitioner, 401 Mass. 105, 107 (1987) ("[T]here is no constitutional impediment to restricting [the petitioner] to rule 30 relief"). Accordingly, the judge properly denied the petition and did not abuse her discretion in denying the petition without a hearing.

Order denying petition for writ of habeas corpus affirmed.


text:
    COMMONWEALTH v. Hosie ADAMS, Jr.
    17-P-1000
    Appeals Court of Massachusetts.
    Entered: October 3, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle with a blood alcohol percentage, by weight, in excess of .08, in violation of G. L. c. 90, § 24 (1) (a ) (1). Before trial, the defendant moved to suppress the results of a breathalyzer test administered to him by State Police Trooper Anthony Chatigny on the ground that Chatigny failed to comply with the fifteen-minute observation period required under 501 Code Mass. Regs. § 2.13(3) (2010). A judge other than the trial judge denied the motion to suppress after finding that Chatigny substantially complied with the observation procedure. We affirm.

Background. Chatigny was the sole witness at the evidentiary hearing on the motion to suppress and the motion judge credited his testimony, which we summarize. In early July of 2015, Chatigny was working a general patrol shift in the city of Worcester when, around 11:45 P.M. , he arrested the defendant for operating a motor vehicle while under the influence of intoxicating liquor. Chatigny transported the defendant to the State Police barracks in Holden, escorted him to a booking room, and placed him on a bench.

At 12:05 A.M. , Chatigny read the defendant his Miranda rights, which the defendant acknowledged he understood. Chatigny then observed the defendant for over fifteen minutes while he conducted the booking process. The defendant was no more than six feet away from Chatigny, and Chatigny's attention was on the defendant the entire time. Chatigny did not see the defendant put anything in his mouth and did not see the defendant burp, belch, or vomit. At 12:24 A.M. , Chatigny administered a breathalyzer test to the defendant, which showed a blood alcohol content, by weight, of .13.

Discussion. "When reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings absent clear error, but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Leary, 92 Mass. App. Ct. 332, 336 (2017). The defendant claims that the motion judge erroneously concluded that Chatigny complied with the observation procedure set forth at 501 Code Mass. Regs. § 2.13(3) (2010), because (1) Chatigny testified that he looked down at the computer during the fifteen-minute observation period in order to type the defendant's responses to booking questions, and (2) there was no video recording of the booking process to confirm that Chatigny observed the defendant for more than fifteen minutes. We are not persuaded.

Chatigny testified that he administered Miranda warnings at 12:05 A.M. and that the observation period began at that time. He administered the breath test nineteen minutes later. The judge credited this testimony, which for our purposes conclusively established that Chatigny observed the defendant for at least fifteen minutes. See Commonwealth v. Ehiabhi, 478 Mass. 154, 166 (2017) ("We entrust credibility determinations to the motion judge"). The defendant's arguments regarding the absence of a video recording and Chatigny looking at his computer go to the weight of the breath test, not its admissibility. See Commonwealth v. Leary, supra; Commonwealth v. Pierre, 72 Mass. App. Ct. 230, 235 (2008). We see nothing in the record to suggest a "substantial deviation" from compliance with the fifteen-minute observation period. Id. Accordingly, the breath test was valid and the results were admissible. See Commonwealth v. Zeininger, 459 Mass. 775, 792-793 (2011) ; 501 Code Mass. Regs. § 2.13(4) (2010).

Judgment affirmed.

      The defendant admitted to sufficient facts to warrant convictions of driving an uninsured motor vehicle in violation of G. L. c. 90, § 34J, and attaching a number plate assigned to another motor vehicle in violation of G. L. c. 90, § 23. Both charges were continued without a finding until October 11, 2016. The defendant was found not responsible for a civil infraction of operating an unregistered motor vehicle in violation of G. L. c. 90, § 9 ; a charge of operating a motor vehicle with a suspended registration in violation of G. L. c. 90, § 23, was dismissed at the Commonwealth's request.

      The defendant also argues that "the trial court" erred in admitting the results of the breathalyzer test because the defendant "candidly disclosed" to Chatigny that he had been drinking, was able to provide his license and a folder with the title and car registration, and had pain in his hamstring that would explain his poor performance on field sobriety tests. However, this evidence was admitted at trial and not at the hearing on the motion to suppress. It therefore has no bearing on the motion judge's ruling on the motion to suppress. See Commonwealth v. Grandison, 433 Mass. 135, 137 (2001). To the extent the defendant, based on this evidence, means to fault the trial judge (who was not the motion judge) for admitting the breathalyzer result, we note that the defendant did not object at trial and that at best the evidence bore on the weight and not the admissibility of the breathalyzer result.


text:
    C.F.M. v. J.E.
    17-P-1470
    Appeals Court of Massachusetts.
    Entered: October 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, J.E., appeals from a G. L. c. 258E harassment prevention order as issued on October 21, 2016 (original 258E order), and as extended on April 21, 2017 (258E extension order). We conclude that the appeal from the original 258E order is moot, and we affirm the 258E extension order.

Background. On October 21, 2016, the plaintiff, C.F.M., filed a complaint in District Court for a G. L. c. 209A abuse prevention order (209A order). The complaint and supporting affidavit alleged that she was or had been in a dating or engagement relationship with the defendant and that he had recently abused her by causing her physical harm. After a hearing at which the plaintiff testified and counsel for the defendant cross-examined her, a judge issued a 209A order against the defendant, which by its own terms was set to expire after six months.

Later that same afternoon, after the defendant's counsel had left the court room but while the plaintiff was before the judge on a related matter, the judge expressed concern that the nature of the relationship between the plaintiff and the defendant was insufficient to support the 209A order he had issued. The judge informed the plaintiff that he would issue an order requiring the defendant to stay away from her and her home and to refrain from abusing her, but that it would be a harassment prevention order. The judge then issued the original 258E order, which (like the 209A order) by its own terms was set to expire after six months.

Six months later, on April 21, 2017, the parties appeared before a second judge for an evidentiary hearing. At the hearing's conclusion, the judge informed the parties that, based on the evidence at the hearing, he was issuing the 258E extension order against the defendant for one year. The defendant then filed a notice of appeal, listing both the original 258E order and the 258E extension order as the orders appealed from.

Discussion. The defendant argues that the original 258E order was improperly issued and should be vacated. Specifically, he argues that the plaintiff did not offer evidence of three separate acts of harassment, see G. L. c. 258E, § 1, and that the judge's sua sponte decision to issue an order under G. L. c. 258E, without affording the defendant notice and an opportunity to be heard, violated his due process rights. But the defendant does not argue that the 258E extension order suffered from either of these defects or was otherwise improperly issued. Nor does he identify any continuing consequence of the original 258E order that is in any way separate or different from the consequences of the 258E extension order. Cf. Seney v. Morhy, 467 Mass. 58, 62 (2014) (appeal from expired 258E order is not moot where order may have continuing collateral consequences). In these circumstances, we conclude that the issuance of the 258E extension order, which the defendant does not challenge, renders moot the appeal from the original 258E order.

The plaintiff, for her part, asks that we reinstate the 209A order -- the relief to which she believes she was originally, and remains, entitled. Assuming for purposes of argument that we could do so without her having filed a cross appeal, we decline her request. The evidence forming the basis for that request is now nearly two years old. Her entitlement to a 209A order depends, among other things, on whether the defendant is a "family or household member," G. L. c. 209A, § 3, a question that in turn depends, in this case, on whether she and the defendant had a substantive dating relationship. See G. L. c. 209A, § 1, as appearing in St. 1990, c. 403, § 2 (defining "[f]amily or household members" to include those who "are or have been in a substantive dating or engagement relationship," and listing four factors relevant to that determination, including "if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship"). A trial court is in the best position to determine in the first instance whether the plaintiff is currently entitled to a 209A order.

To avoid any doubt, however, we add that we do not understand either judge in this case to have finally determined whether the parties were or had been in a substantive dating relationship. Should the plaintiff seek another 209A order, that question remains open. Similarly, we see nothing in the statutes or in this record barring the plaintiff from seeking such an order even if a 258E order remains in effect. Finally, we note that under both G. L. c. 209A and G. L. c. 258E, "[t]he fact that [abuse or harassment] has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, [or] allowing an order to expire or be vacated[,] or for refusing to issue a new order." G. L. c. 209A, § 3 (i ), as appearing in St. 1990, c. 403, § 3. G. L. c. 258E, § 3 (d ).

Conclusion. Insofar as the defendant appeals from the issuance of the original 258E order, that appeal is dismissed as moot. The 258E extension order is affirmed.

So ordered.

dismissed in part; affirmed in part.

      The portion of the hearing transcript before us includes no discussion of the 209A order. That order appears to have expired by its terms on April 21, 2017, the defendant's notice of appeal does not refer to it, and the defendant does not argue that it was improperly issued or ask us to take any action regarding it.

      The defendant obtained leave from a single justice to file a late notice of appeal from the original 258E order. We note that the 258E extension order is not reflected on the docket and is not included in the materials the parties have submitted to us, but neither party disputes that it was issued.

      At oral argument the defendant suggested, without citation to authority, that the original 258E order created a presumption that contributed to the issuance of the 258E extension order. The law is to the contrary in the G. L. c. 209A context. "No presumption arises from the initial order; 'it is the plaintiff's burden to establish that the facts that exist at the time extension of the order is sought justify relief.' " MacDonald v. Caruso, 467 Mass. 382, 386 (2014), quoting Smith v. Jones, 67 Mass. App. Ct. 129, 133-134 (2006). And, "for the most part, both the Supreme Judicial Court and this court have applied the case law relating to c. 209A to cases arising under c. 258E." A.P. v. M.T., 92 Mass. App. Ct. 156, 161 (2017).


text:
    ADOPTION OF CALI.
    17-P-1557
    Appeals Court of Massachusetts.
    Entered: October 2, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   The mother appeals from a decree issued by a judge of the Juvenile Court finding her unfit to parent her daughter, Cali, and terminating her parental rights. See G. L. c. 210, § 3. She argues that the trial judge's factual findings are insufficient to establish her parental unfitness by clear and convincing evidence, that the Department of Children and Families (department) did not make reasonable efforts to reunify her with Cali, and that the case should be remanded for the judge to reconsider posttermination visitation. We affirm.

Background. The judge's subsidiary findings and the essential facts are uncontested. The mother has three children by two fathers. Her older two children, Cali's half-siblings, were the subjects of numerous G. L. c. 119, § 51A, reports alleging medical neglect and alcohol abuse by the mother. In 2013 the department filed a care and protection petition as to the two older children and created a service plan for the mother. The mother did not complete the recommended services, which included taking a parenting class, undergoing substance abuse treatment, and obtaining a psychological evaluation. As a result of the care and protection petition, the two older children were removed from the mother's care and placed in foster care. Ultimately, they were placed in the custody of their father.

While that case was pending, the department learned that the mother was pregnant with Cali. The department received reports during the mother's pregnancy that she had positive drug screens and had missed three prenatal appointments. When confronted about one of the positive screens, the mother told the social worker that she used marijuana to help with anxiety and lack of appetite.

In October of 2014, with the department's assistance, the mother moved to Jessie's House, a shelter for parents and children where parents can receive assistance in procuring services. Cali was born one month later. At the time of the birth, the mother tested positive for marijuana, prompting the department to file a care and protection petition and seek emergency custody of Cali. See G. L. c. 119, § 24. After a temporary custody hearing, a judge granted custody to the mother contingent on her remaining in good standing at Jessie's House and remaining drug and alcohol free, among other conditions.

In February of 2015, Jessie's House staff expressed concern that the mother had been drinking alcohol while caring for Cali. The department again sought emergency custody. After another hearing the judge granted custody to the mother subject to the same conditions in the first temporary custody order. Several days later, the mother tested positive for cocaine. The mother contested the results and was given the opportunity to retest the next day. When the second sample also came back positive for cocaine, the department was granted emergency, and later temporary, custody of Cali.

Because the mother no longer had custody, she was forced to leave Jessie's House. Earlier, Jessie's House staff had assisted the mother in obtaining a Section 8 housing voucher. When the mother claimed that an unpaid gas bill was impeding her efforts to find an apartment, the department informed her that it would pay a portion of the bill and help set up a payment plan for the rest. The mother never provided the department with a copy of the bill, however, and at trial she admitted that she did not call the gas company to ask for a copy. Due to the mother's inaction, the Section 8 voucher expired.

Throughout the time leading up to trial, which began in November of 2016, the mother remained homeless, living with relatives and various friends and moving frequently from home to home. The only address the mother provided to the department was her brother's address in the Dorchester section of Boston, where she was living at the time of trial. The department was unable to conduct a home visit at the brother's address.

The mother did not comply with the majority of her service plan tasks. She did not complete a substance abuse program after she left Jessie's House, develop a relapse prevention plan, attend Alcoholics Anonymous or Narcotics Anonymous meetings, take a parenting class, or maintain contact with the department. In addition, the mother was not consistent in attending visits with Cali. Of twenty-six scheduled visits between March of 2015 and September of 2016, the mother cancelled or failed to attend five and was late to eleven. She was frequently more than fifteen minutes late. On multiple occasions she would not call to cancel until after the time scheduled for the start of the visit, by which time Cali had already been transported from her foster home to the department's area office. The mother also was not properly prepared for the visits she did attend, failing to bring appropriate food, drink, and activities for Cali.

Discussion. 1. Unfitness. "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). While the mother raises no challenge to the judge's subsidiary findings, she contends that his ultimate conclusion of unfitness is not supported by clear and convincing evidence. Specifically, she contends that the judge erred in finding her unfit based solely on her issues with substance use.

It is true that "a [drug] habit, without more, [does not] translate[ ] automatically into legal unfitness to act as a parent." Adoption of Katharine, 42 Mass. App. Ct. 25, 34 (1997). But unlike in Katharine, the evidence in this case established a nexus between the mother's substance use and her parental deficiencies: not long before Cali was born, the department filed a care and protection petition as to the mother's two older children due in part to her alcohol abuse, resulting in those children being placed in foster care. This past conduct has prognostic value, and the judge was allowed to consider it in assessing the mother's current parental fitness. See Adoption of Larry, 434 Mass. 456, 469 (2001).

The mother's past conduct is especially relevant because "the evidence support[s] the continuing vitality of such conduct." Id. Around the time she lost custody of her two older children, the mother smoked marijuana while she was pregnant with Cali. She then tested positive for cocaine, despite the requirement of the temporary custody order that she remain drug and alcohol free. During the time this case was pending, the mother did not complete a substance abuse program or develop a relapse prevention plan. Contrary to the mother's contention, the evidence of her substance use is not stale, and the judge did not err by considering it as part of the calculus. See Adoption of Nancy, 443 Mass. 512, 516 (2005).

This case is also different from Katharine because the judge's decision was not based solely on the mother's drug and alcohol use. The judge also found that the mother has been unable to maintain stable housing, did not comply with her service plan, failed to give the department her contact information, and wilfully failed to visit Cali. Though a finding of unfitness cannot be based solely on homelessness, see Adoption of Linus, 73 Mass. App. Ct. 815, 821 (2009), evidence of "the failure of the parent[ ] to keep a stable home environment" is a relevant factor for a judge to consider. Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987). Here, the mother had to leave Jessie's House because she used drugs and lost custody of Cali, and she failed to utilize the Section 8 voucher, letting a valuable opportunity to obtain her own housing slip away. The mother's failure to put in the minimal effort needed to call the gas company for a copy of her bill demonstrated her lack of commitment to securing a home that would be appropriate for Cali. Her wilful failure to attend visits likewise demonstrated her lack of commitment to Cali.

The judge's determination of unfitness was based on the above constellation of factors. Considering these factors in their totality, we conclude that they clearly and convincingly establish that the mother is unfit to care for Cali. We further conclude that the judge did not abuse his discretion in finding that termination of the mother's parental rights would be in Cali's best interests. See Adoption of Ilona, 459 Mass. 53, 59 (2011) (best interests determination is reviewed for "clear error of law or abuse of discretion"). Given the mother's demonstrated lack of commitment to Cali, failure to comply with her service plan, and prior history of parental neglect, the judge was justified in finding that the mother's unfitness was not merely temporary. See id. at 60. Cali "deserve[s] permanency and stability" and should not be made to wait indefinitely in the hope that the mother may someday become fit. Nancy, 443 Mass. at 517.

2. Reasonable efforts. "Before seeking to terminate parental rights, the department must make 'reasonable efforts' aimed at restoring the child to the care of the natural parents." Ilona, 459 Mass. at 60, quoting Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002). The mother argues that the department failed to make reasonable efforts in two respects. First, she argues that the department did not adequately help her to obtain housing. This argument appears to center around the Section 8 voucher; in particular, while acknowledging that the department offered to pay for part of her gas bill, the mother claims that she "lacked the means to obtain a copy of the bill due to her impoverished circumstances." The mother does not articulate, however, what more the department should have done to assist her. Her failure to follow through with the gas company "cannot be laid at the department's door." Adoption of Gregory, 434 Mass. 117, 123 (2001), quoting Adoption of Paula, 420 Mass. 716, 730 (1995).

Second, the mother argues that the department did not make reasonable efforts to help her with her substance abuse issues. She points specifically to two requests she made for referrals to an in-patient substance abuse program. But both times, the department made the referral. The first time, the program would not accept the mother because she refused to admit that she had a substance abuse problem. The second time, the referral failed because the program wanted a commitment from the department that the mother would be reunified with Cali within thirty days, an assurance that the department could not give because by that time the goal for Cali had changed to adoption. We fail to see how the department acted unreasonably.

3. Visitation. The judge found that there was no evidence of a bond between the mother and Cali and declined to order posttermination visitation. The mother contends that remand is required on this issue because the judge denied her motion to add a witness who "would speak to the issue of bonding." But the mother does not explain why the judge abused his discretion in denying the motion. It is apparent, in any event, that the judge did not abuse his discretion, given the late disclosure of the proposed witness and the admission by the mother's counsel that the testimony would not be "child-specific" as the witness had not actually observed the mother with Cali in nearly two years.

Decree affirmed.

      The putative father did not attempt to perfect paternity and did not appeal from the decree terminating his parental rights.

      The social worker testified that the mother did not provide the address until one or two months before trial.

      The visits were initially held in Springfield but were moved to Worcester to accommodate the mother after she moved there in or around June of 2015.

      The mother asserts that transportation issues hampered her ability to attend the visits, but the judge found that she "was frequently late to visits even when she [was] liv[ing] in Worcester."

      We will assume, without deciding, that the mother preserved her arguments. We note also that, contrary to her suggestion, a failure by the department to make reasonable efforts is but one factor "in deciding whether a parent's unfitness is merely temporary." Ilona, 459 Mass. at 61. "[E]ven where the department has failed to meet [its] obligation, a trial judge must still rule in the child's best interest." Id.


text:
    A.L. v. C.D.
    18-P-184
    Appeals Court of Massachusetts.
    Entered: October 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the denial of his 2017 motion to vacate various G. L. c. 209A orders, arguing that the judges who entered the orders abused their discretion. We affirm.

On January 21, 2009, the plaintiff filed an abuse protection complaint pursuant to c. 209A supported by an affidavit in which she stated that the defendant, upon release from prison, appeared at the women's residence where she was staying despite having told him to not contact her. Based on her knowledge of his past, his associations, and "an abusive relationship," she averred that the event put her in fear for herself, her daughter, and the staff of the residence. A one-day temporary order entered that day.

The defendant did not appear at a hearing the next day, and the previous order was extended to January 30, 2009. After a hearing on January 30, 2009 (at which the defendant again did not appear), a one-year order entered, which expired on January 29, 2010. On January 29, 2010, the defendant again did not appear and a permanent order entered. The defendant did not appeal from any of these orders.

In 2013, the defendant filed a motion to modify/terminate the permanent order to the extent of removing the daughter from its scope. That motion was allowed. In 2017, the defendant moved to vacate the remaining portion of the orders. As grounds, he argued that the orders should never have been entered because, although he appeared at the plaintiff's residence, he did nothing to place her in fear and left when it was clear she did not want him there, and that her letters to him while he was incarcerated belied her contention that she did not want him to contact her. He does not contend that he placed any of this information before the judges at any of the underlying hearings; in fact, as noted above, he did not appear. Moreover, he has not included in the record the transcripts of the hearings or any other information about what evidence was placed before the judges during them. Nonetheless, the defendant contends it was an abuse of discretion to enter the orders.

In this posture, none of the underlying orders are susceptible to attack on this ground. Where, as here, no appeal was taken, an abuse prevention order's "underlying basis [is] not to be reviewed, nor its validity second guessed." Iamele v. Asselin, 444 Mass. 734, 742 (2005). See MacDonald v. Caruso, 467 Mass. 382, 387 (2014) ("Where, as here, the defendant does not challenge on direct appeal the entry of a permanent abuse prevention order under G. L. c. 209A, it becomes a final equitable order"). For this reason, the motion to vacate was properly denied.

Order denying motion to vacate dated September 29, 2017, affirmed.

      The record indicates that the defendant asked the District Court clerk about the transcripts, and was informed that they no longer existed. See Rule 211 of District Court Special Rules.

      We note that the defendant contends that he is currently being harmed because the parole board has viewed, and will continue to view, the orders negatively. Although prospective application of a c. 209A order may in some circumstances be terminated, the defendant would have to prove by clear and convincing evidence that the order is no longer equitable. See MacDonald, supra at 384 n.4, 389. This was not the basis of his motion below, nor is it the focus of his appeal now.


text:
    CONGRESS FINE DINING, LLC v. E, F AND C, LLC, & another.
    17-P-1113
    Appeals Court of Massachusetts.
    Entered: October 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Francis X. Crowley.

   The issue before us in this case is whether the parties fulfilled their obligations relative to a right of first refusal (ROFR) contained in a purchase and sale agreement executed in 2010 (2010 agreement). We conclude that the plaintiff had standing to exercise the ROFR with regard to a 2013 third-party offer to purchase, the parties could not agree on a ROFR purchase and sale agreement despite reasonable and good faith negotiations, and because defendant E, F and C, LLC (EFC), did not ultimately sell the disputed property to the third party, the plaintiff's ROFR remains in force.

Background. Prior to 2010, Congress Fine Dining, LLC (Congress) leased from EFC level one and part of level two of "The Congress Condominium," a five-level condominium building located at 355 Congress Street in Boston. On April 9, 2010, Congress and EFC entered the 2010 agreement and ultimately completed the sale of levels one and two of the building to Congress's nominee. The 2010 agreement provides that it is between EFC as "Seller" and Congress "or its nominee, as provided in Section 12, herein," as the "Buyer." Section 12 provides that "[a]cceptance of the Deed by Buyer or the nominee(s) designated by Buyer with the same principals as Buyer, as the case may be, shall be deemed to be a full performance and discharge of every agreement and obligation herein contained or expressed, except for the representations which survive the delivery of the Deed by their terms."

Section 19 of the 2010 agreement provides a ROFR for the "Buyer" for the third level of the condominium building (option space). The ROFR requires EFC to give notice to the buyer of EFC's intent to sell the option space, including the basic terms, conditions, and effective purchase price of a third-party offer. The ROFR provides that "[u]pon receipt of the Third Party Purchase Offer from Seller, Buyer shall have a right to purchase the Option Space on the terms set forth therein. Tenant's right to purchase the Option Space shall be exercised by giving notice to Seller to such effect within three (3) business days after Buyer's receipt of the Third Party Purchase Offer" (emphasis supplied). The ROFR further provides that if "Buyer exercises its purchase Right of First Refusal, then Seller and Buyer ... shall enter into a mutually acceptable purchase and sale agreement ... within ten (10) business days from Buyer's acceptance of said offer. Said ROFR Purchase Agreement shall reflect the terms and conditions set forth in the Third Party Purchase Offer, including a closing date of at least sixty (60) days from the date of execution of the ROFR Purchase Agreement."

The 2010 agreement contemplates various scenarios that could arise from the exercise or nonexercise of the ROFR. First, if the buyer does not exercise its ROFR, the premises shall be sold free and clear of the ROFR. In addition, "[t]he non-exercise by Buyer of its rights ... shall be deemed a waiver of any of Buyer's rights of first refusal to purchase the Premises ... at any subsequent time," unless, as relevant here, the seller "fails to enter into an enforceable purchase and sale agreement on the terms set forth in said Third Party Purchase Offer within ninety (90) days." Second, if the buyer notifies the seller of its election to purchase the premises and then fails to execute and deliver the required ROFR purchase agreement once one has been mutually agreed upon by the buyer and seller, the buyer shall be deemed to have waived its rights under the ROFR, the seller shall have the unrestricted right to sell, and the buyer's ROFR shall terminate. Finally, if the seller and buyer each act reasonably and in good faith but fail to agree on a ROFR purchase agreement within ten days, such failure shall be treated as a nonexercise by the buyer of the ROFR.

In June of 2010, counsel for Congress sent an electronic mail message (e-mail) to EFC's counsel stating "please note that the Unit Deed and 6(d) certificates and any [other] closing [documents] for the Buyer should run to Congress Street 355-1, LLC, a Massachusetts limited liability company, which is the new entity created to take title to the Unit. There will be an internal lease of the Unit back to Congress Fine Dining, LLC." (Emphasis added.) At closing, Congress Street 355-1, LLC (355-1), took title to levels one and two and leased level one to Congress, which operates a restaurant known as Lucky's in it.

During the course of Congress's prior tenancy and after 355-1 took title to levels one and two, disputes arose between Congress or 355-1 and EFC, first regarding past rent owed to EFC by Congress and then regarding the common areas and costs. In addition, Congress asserted that EFC's manager, Francis X. Crowley, had mismanaged condominium funds. Those disputes led to a lawsuit commenced by 355-1 which was ongoing when in 2013, EFC received a third-party offer to purchase level three. A second lawsuit brought by the building department against EFC in the Housing Court was also pending. As a result, the purchase and sale agreement negotiated between EFC and the third-party purchaser included a purchase price of $1.8 million and an indemnity agreement whereby EFC would indemnify the third-party purchaser from any and all losses, costs, liabilities, and damages, including attorney's fees, in connection with the two pending lawsuits.

As specifically required by the 2010 agreement, EFC gave written notice of the third-party offer. Notice was addressed to the "Lyons Group, Ltd." The letter referred to the 2010 ROFR between EFC and Congress, as buyer. It stated, "You have the right to purchase this space on the terms set forth in the enclosed Agreement for the third level of The Congress Condominium." It enclosed both a copy of the purchase and sale agreement and the indemnification agreement.

In response, Congress gave the required notice that it was exercising its option to purchase the option space in a timely September 3, 2013, letter signed by David Joaquin, as a "member" of Congress. Although the judge found that Joaquin did not have authority to sign the letter, EFC raised no issue regarding Joaquin's authority and proceeded to negotiate with Congress. During negotiations to come to a mutually acceptable purchase and sale agreement, Congress took the position that the indemnification agreement was part of the third-party purchase and sale agreement and insisted it be included as part of its agreement. EFC declined, taking the position that it made no sense to indemnify Congress for litigation to which it or a related entity was a party. The parties could not come to agreement, and EFC ultimately took the property off the market and did not sell it either to the third party or to Congress.

Congress commenced this action seeking specific performance of the ROFR, and damages for breach of contract and violation of G. L. c. 93A. EFC filed counterclaims seeking a declaratory judgment that Congress waived its right of first refusal, and damages for breach of contract arising from amounts owed under the former lease, for failure to negotiate with EFC in good faith regarding the ROFR, and for violation of G. L. c. 93A. After motions to dismiss were denied, the judge conducted a jury-waived trial. The judge concluded that there was no contract between Congress and EFC because when Congress designated 355-1 to take title to levels 1 and 2, all of the rights of the buyer contained in the 2010 agreement transferred to 355-1 and 355-1 did not exercise the ROFR. The judge further concluded that even if there had been contractual rights, the parties' failure to enter into a mutually agreed-upon purchase and sale agreement after ten days constituted a waiver of the ROFR by the buyer pursuant to § 10(c) of the 2010 agreement. The judge also found in favor of Congress on EFC's counterclaims and dismissed them.

Discussion. Congress's claims. "The interpretation of a contract is a question of law for the court. Whether a contract is ambiguous is also a question of law." Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 287 (2007). "Contractual language is ambiguous if it is susceptible to more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one" (quotation omitted). James B. Nutter & Co. v. Estate of Murphy, 478 Mass. 664, 669 (2018). "[W]e construe a contract as a whole, so as 'to give reasonable effect to each of its provisions.' " Id., quoting J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 795 (1986).

Congress argues on appeal that the judge erred in concluding that pursuant to the 2010 agreement, only 355-1 had the right to exercise the ROFR. Because we construe the 2010 agreement to be at least ambiguous with respect to whether Congress retained authority to exercise the ROFR, and the conduct of both parties clearly shows their understanding that Congress retained such authority, we agree with Congress that the judge erred in concluding it had no rights under the 2010 agreement.

It is true that the opening paragraph of the 2010 agreement defines "Buyer" as Congress "or its nominee, as provided in Section 12." The ROFR in § 19 extends to the "Buyer." Reading the definition of "Buyer" literally, either Congress or its nominee arguably is empowered to act as "Buyer" and exercise the ROFR.

At first blush, the 2010 agreement's definition of "Buyer" as Congress or its nominee supports EFC's argument. However, notwithstanding the definition, throughout the 2010 agreement, the term "Buyer" is frequently used in reference to only Congress. Furthermore, in several places, "Buyer or its nominee" is used in the body of the 2010 agreement, which is clearly redundant if the term "Buyer" was intended by definition to include Congress "or its nominee." Strikingly, the clause immediately after the opening paragraph defining "Buyer" as Congress or its nominee states that "Buyer, as tenant, and Seller, as landlord, are parties under and pursuant to" a July, 2000, lease. "Buyer" in that clause undoubtedly means Congress, which in fact was then in a landlord/tenant relationship with EFC when the 2010 agreement was executed. Moreover, there can be no mistake that Congress is the "Buyer" referred to in § 12 with authority to designate a nominee.

In the ROFR itself, "Buyer or its nominee" is used in some places and only "Buyer" in others. It provides that the seller "shall not sell all or any portion of the Option Space to any bona fide third-party other than to Buyer, or its nominee, unless Buyer has been given notice" (emphasis added). Within the ROFR section, it appears that the drafters used "Buyer or its nominee" when they wanted rights to extend to a nominee and used "Buyer," alone, when referring to Congress. See Kolakowski v. Finney, 393 Mass. 336, 341 (1984). Perhaps most importantly, at one point in the ROFR, it abandons the use of "Buyer or its nominee" altogether and provides that "[t]enant's right to purchase the Option Space shall be exercised by giving notice to Seller" (emphasis added). On the facts found by the judge, "tenant" can only refer to Congress.

At the very least, the inconsistent use of the terms "Buyer" (when clearly intending to reference only Congress), the continued use of the terms "Buyer or its nominee" despite the definition of "Buyer" as including its nominee, and the absence of any terms specifically assigning Congress's rights under the ROFR to its nominee render the 2010 agreement ambiguous as to who may exercise the ROFR after a nominee is designated to take title. Where ambiguity exists, "[t]here is no surer way to find out what the parties meant, than to see what they have done." Martino v. First Nat'l Bank of Boston, 361 Mass. 325, 332 (1972), quoting Pittsfield & North Adams R.R. v. Boston & Albany R.R., 260 Mass. 390, 398 (1927). Here, EFC did not provide notice of the third-party offer to 335-1; EFC's notice of the third-party offer stated that Congress held the ROFR; EFC negotiated with Congress over the purchase and sale agreement; and EFC's court filings indicated that Congress held the ROFR. By its conduct, EFC has resolved any ambiguity by consistently treating Congress as the holder of the ROFR.

That Congress could and did designate a nominee to take title to the premises does not compel a conclusion that the nominee would become the "Buyer" for purposes of portions of the 2010 agreement unrelated to taking title of the premises. Significantly, the parties have not produced any document assigning Congress's rights under the 2010 agreement to 335-1 -- other than the e-mail designating 335-1 as the entity that would accept the deed to the premises. Both the June e-mail designating 335-1 as the entity "created to take title" and § 12 of the 2010 agreement discussing the nominee's role in taking title are silent as to any role for the nominee in regard to the ROFR. In short, there is no suggestion that the nominee designated to take title would also become the "Buyer" for purposes of the ROFR contained in § 19.

The judge also decided that even if Congress could contractually enforce the ROFR, the failure to enter into a mutually agreed-upon purchase and sale agreement after ten days is deemed a waiver of the ROFR by the buyer. As noted above, however, that is not the result where, despite good faith negotiations, the parties never reached agreement on an ROFR purchase agreement, and the seller did not close on the sale with the third party.

The judge rejected EFC's claim that Congress failed to negotiate in good faith. We agree that cleared of the underbrush, the parties had a good faith disagreement as to whether the terms of the indemnification agreement should be incorporated into the ROFR purchase and sale agreement where Congress was a party or related entity in one of the two litigations to which the indemnification agreement applied. We do not view as unreasonable Congress's desire to have the same protections from attorney's fees and other costs of litigation from which the indemnity agreement protected the third-party purchaser. Nor do we view EFC's position of declining to indemnify Congress in a suit involving Congress or a related entity unreasonable. Neither party proposed a compromise position, and their precise disagreement as to whether the terms of the indemnity agreement as proposed should be included in the ROFR agreement does not mean the parties failed to negotiate reasonably or in good faith. See Duclersaint v. Federal Nat'l Mtge. Ass'n, 427 Mass. 809, 814-815 (1998) (difference of opinion as to applicability of statute to undisputed facts necessitating involvement of court does not mean parties acted unfairly). When the parties were unable to come to agreement on a purchase and sale agreement, EFC withdrew the property from the market and did not sell it to the third party. Pursuant to the 2010 agreement, therefore, Congress's ROFR remains enforceable should EFC receive a new offer on the ROFR premises.

EFC's claims. We agree with the judge that EFC failed to prove that Congress owed rent due under the lease existing prior to April, 2010. The e-mails relied on by EFC state only that Congress disagreed with EFC's numbers and that even if Congress were to accept EFC's numbers without dispute, which Congress did not, the calculations were still wrong. Contrary to EFC's argument, Congress did not admit to owing anything under the lease.

EFC's claim that Congress breached it obligation of good faith and fair dealing under the 2010 agreement fails in light of the implied finding that both parties negotiated in good faith to come to a mutually agreeable ROFR purchase and sale agreement. That Congress's goal in acquiring level three may have been motivated at least in part by a desire to gain control of management of the building does not mean it breached a covenant of good faith and fair dealing. It could hardly have been a secret among the experienced business entities to these negotiations that an owner of progressively more of a condominium building might have in mind gaining control of the management of the building.

Similarly, that Congress commenced this action after EFC took the property off of the market and decided not to sell it, does not mean Congress brought it for an ulterior or illegitimate purpose resulting in damage. A reasonable fact finder could well have concluded that one or the other party did not negotiate in good faith to reach agreement on a purchase and sale agreement. As the parties' c. 93A claims are derivative of their contract claims, we agree that their c. 93A claims, too, must fail. Congress makes no argument that the claims against Francis X. Crowley, individually, were improperly dismissed.

The judgment shall be modified to provide that the ROFR remains in full force and effect. As so modified, the judgment is affirmed.

So ordered.

      Section 20 of the 2010 agreement further provides that "[e]xcept to a nominee with the same principals as Buyer, Buyer shall not assign this Agreement or any rights hereunder without the prior written consent of Seller."

      Section 19(a) provides in part that "Seller shall not sell all or any portion of the Option Space to any bona fide third-party other than to Buyer, or its nominee, unless Buyer has been given notice of a letter of intent to sell (the 'Third Party Purchase Offer') and the right to match the terms therein. The Third Party Purchase Offer shall set forth all basic terms and conditions upon which it is made, and shall express the total consideration for the Option Space in terms of a cash dollar amount or allowance (such dollar amount and other consideration being hereinafter referred to as the 'Effective Purchase Price')."

      The 2010 agreement identifies Congress Fine Dining, LLC, as having an address at "c/o The Lyons Group, 7 Landsdowne Street, Boston, Massachusetts 02215." The 2010 agreement does not identify The Lyons Group as the party to be notified.

      Congress also brought claims against Francis X. Crowley, manager and member of EFC and managing trustee of the condominium, for tortious interference with contractual relations and violation of c. 93A. Those claims were decided against Congress, and Congress makes no argument specific to those claims on appeal.

      EFC's counterclaims assert that "[t]he right of first refusal ... gave Congress the right to 'match the terms' of any bona fide third party offer made to EFC to purchase Level 3." It also asserted that "[u]pon information and belief, Congress and the Congress Affiliate are owned and operated by the same individual(s) or entities in such a manner that representatives of Congress exercise pervasive control over the Congress Affiliate with a substantial disregard of the separate nature of the purported corporate entities and with a substantial disregard of corporate formalities."

      EFC seems to ignore that if Congress was not the proper entity to exercise the ROFR, it provided notice to the wrong entity.

      The judge refers to paragraph 10(c) but the ROFR is found in § 19.


text:
    Bernard DAVIS v. DEPARTMENT OF CHILDREN AND FAMILIES.
    17-P-717
    Appeals Court of Massachusetts.
    Entered: October 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After the Department of Children and Families (department) found, pursuant to G. L. c. 119, § 51B, that an allegation that Bernard Davis had physically abused his one year old daughter, Jane, had been substantiated, Davis requested a fair hearing pursuant to 110 Code Mass. Regs. §§ 10.00 (2014). The hearing officer affirmed the department's decision to support the allegations of physical abuse (fair hearing decision). Davis sought judicial review of the fair hearing decision pursuant to G. L. c. 30A, § 14, and moved to introduce additional evidence pursuant to G. L. c. 30A, § 14 (6). A Superior Court judge denied Davis's motion and affirmed the fair hearing decision. On appeal, Davis claims that (1) the denial of his motion to introduce additional evidence was an abuse of discretion, (2) the fair hearing decision was not supported by substantial evidence, and (3) the fair hearing decision should be vacated because it was based on a video recording that was obtained in violation of State and Federal wiretap statutes. We affirm.

Background. We summarize the facts from the administrative record. On March 30, 2014, the department received a report pursuant to G. L. c. 119, § 51A ( § 51A report), alleging physical abuse of Jane by Davis. A department social worker and an investigator responded to the incident and interviewed the mother. The mother reported that, earlier that day, Jane was crying and Davis told Jane to "shut your mouth." Using more force than was reasonable or necessary, Davis placed Jane on his lap and held her head so that she could not look at the mother. Davis then put Jane on her back and held her between his legs so that she was unable to move. Davis pinned Jane's arms to the ground and pushed down on her. He then crossed his legs over Jane's torso in order to restrain her. Davis placed Jane in a headlock and dangled her over his leg. The mother recorded the incident on her cellular telephone and took photographs of Jane. The photographs showed a red mark or scratch on Jane's left shoulder, a red mark on her neck, a red mark under Jane's left eye, two apparent fingerprints on the left side of her head, and a red neck. At the hospital, the department investigator observed a bruise above Jane's left eye, a mark under her right eye, and a scratch on her shoulder.

Davis admitted to holding Jane's head and closing Jane's mouth even though "he knew it was wrong." He denied pinning Jane's legs or restraining her as alleged. The investigator viewed the mother's video recording of the incident and observed Davis restraining Jane. The video revealed that Davis put both of his legs on top of Jane and held her arms down while she was crying. Jane struggled to free her arms and Davis forcefully put her arms down.

The department supported allegations of physical abuse by Davis and referred the case to the district attorney. Before the fair hearing, Davis pleaded guilty to a charge stemming from the incident. After the fair hearing, the hearing officer concluded that (1) Davis is a "caretaker" under department regulations, (2) the marks on Jane, as observed by the department investigator, are considered "injuries" within the meaning of the department's regulations, (3) the mother's statements to the department were consistent with and corroborated by Jane's injuries, and (4) even without considering the video, the department gathered sufficient information to warrant reasonable cause to believe that Davis physically abused Jane.

Discussion. 1. Motion to present additional evidence. Pursuant to G. L. c. 30A, § 14 (6), Davis sought to introduce copies of the § 51A report and a criminal complaint filed by the Danvers police department as additional evidence. According to Davis, this evidence showed that the mother and the Danvers police department violated State and Federal wiretap laws by producing and disclosing the contents of the video. The judge denied the motion in a margin endorsement, which Davis contends was an abuse of discretion. See Massachusetts Ass'n of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 265-266 (2001) ("A motion for leave to present supplemental evidence pursuant to G. L. c. 30A, § 14 [6], is addressed to the sound discretion of the judge"). We disagree.

A Superior Court judge may order an agency to reopen its proceedings for consideration of additional evidence if "the additional evidence is material to the issues in the case, and ... there was good reason for failure to present it in the proceeding before the agency." G. L. c. 30A, § 14 (6). See Northeast Metro. Regional Vocational Sch. Dist. Sch. Comm. v. Massachusetts Comm'n Against Discrimination, 35 Mass. App. Ct. 813, 817 (1994). Here, as the department notes, expansion of the administrative record to include another copy of the § 51A report "would add nothing" to the hearing officer's conclusion because she had the § 51A report before her. Commonwealth v. Roxbury Charter High Pub. Sch., 69 Mass. App. Ct. 49, 55 (2007). Nor would inclusion of the criminal complaint, where the contents of the complaint mirror the § 51A report and Davis testified about the criminal proceedings at the fair hearing. Thus, even if Davis's explanation for not submitting the complaint constituted "good reason" under G. L. c. 30A, § 14 (6), there was no abuse of discretion. Doe, Sex Offender Registry Bd. No. 15606 v. Sex Offender Registry Bd., 452 Mass. 784, 795 (2008).

2. Substantial evidence. Davis claims that the fair hearing decision was not supported by substantial evidence because the hearing officer relied on a video that should not have been admitted in evidence. We need not decide whether the video was obtained in violation of Federal or State wiretap statutes as Davis claims, because there is no evidence that the hearing officer viewed the video, and she expressly did not rely on it in reaching her decision. Even if the video "factored into" the department's initial decision to support allegations of abuse, "there was other substantial and reliable evidence in the record" to support the hearing officer's decision. Police Dep't of Boston v. Kavaleski, 463 Mass. 680, 691 (2012).

First, the mother's statements bore significant indicia of reliability because (1) the investigator observed bruising and a scratch on Jane that were consistent with the mother's account, and (2) Davis confirmed much of the mother's account in his interview with the department. See Doe, Sex Offender Registry Bd. No. 108000 v. Sex Offender Registry Bd., 459 Mass. 603, 638 (2011) ("In the context of administrative proceedings, hearsay evidence bearing indicia of reliability constitutes admissible and substantial evidence"). Second, Davis admitted to physically closing Jane's mouth by holding her chin with his hand even though he knew it was wrong. Third, Davis pleaded guilty to assault. The hearing officer properly concluded that the department had "reasonable cause to believe that [Davis] did inflict abuse" on Jane. 110 Code Mass. Regs. § 4.32(2) (2009). See 110 Code Mass. Regs. § 2.00 (2008) ("[a]buse means the non-accidental commission of any act by a caretaker upon a child under age 18 which causes, or creates a substantial risk of physical or emotional injury"; "[p]hysical [i]njury" includes "soft tissue swelling or skin bruising"). We discern no error or abuse of discretion.

Judgment affirmed.

      A pseudonym.

      See Covell v. Department of Social Servs., 439 Mass. 766, 772-779 (2003), for an overview of the department's statutory and regulatory process for investigating allegations of abuse.

      Davis testified that he was initially charged with assault and battery on a child. According to the department's brief, and Davis's own testimony, he ultimately accepted a plea on a charge of misdemeanor assault and served a total of six months' incarceration.

      Davis does not dispute that he is a "caretaker" under the department's regulations. See 110 Code Mass. Regs. § 2.00 (2008) ("[c]aretaker means a child's: ... parent").

      While Davis's motion appears in the record, the documents to which he refers in the motion do not. We take this description of the additional evidence from the department's opposition to the G. L. c. 30A, § 14 (6) motion.

      Davis asserts that he did not submit the criminal complaint at the hearing because he was acting pro se and neglected to do so.

      The video was not introduced in evidence at the fair hearing.

      " 'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a conclusion,' ... a test which takes into account the entire record, both the evidence supporting the agency's conclusion and whatever in the record fairly detracts from the weight of that evidence." Covell, 439 Mass. at 783, quoting G. L. c. 30A, § 1 (6).


text:
    James HATT & others v. Elizabeth MCGRAW, trustee, & others.
    17-P-1556
    Appeals Court of Massachusetts.
    Entered: October 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Kristin Hatt and Elizabeth Weinberg.

      Of the Berkshire Museum, also known as the Berkshire Museum of Art, History, and Science, a corporation.

      Stacey Gillis Weber, Ethan Klepetar, Stephen Bayne, Lydia S. Rosner, Mike Addy, Jay Bikofsky, Douglas Crane, Howard J. Eberwein III, Ursula Ehret-Dichter, David Glodt, Wendy Gordon, William M. Hines, Jr., Joan Hunter, Eric Korenman, Barbara Krauthamer, Donna Krenicki, Suzanne Nash, David Neubert, Jeffrey Noble, Caitlin Pemble, and Melissa Scarafoni, all in their capacity as trustees of the Berkshire Museum.

   The plaintiffs sued in Superior Court to prevent the trustees of the Berkshire Museum (museum) from selling several valuable pieces of art and moved for a preliminary injunction to that effect. A judge denied the motion and dismissed their complaint for lack of standing. The plaintiffs challenge both rulings on appeal on various grounds. We affirm.

Discussion. 1. Standing. The plaintiffs contend that they have standing to sue: (a) to enforce the museum's contractual founding documents; (b) to protect their rights as corporate members of the museum; and (c) derivatively as corporate members of the museum. These arguments lack merit.

We review a dismissal for lack of standing using the same standards for dismissal under Mass. R. Civ. P. 12 (b) (1) and (6), 365 Mass. 754 (1974). See Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998). Accordingly, "accept[ing] the factual allegations in the plaintiffs' complaint, as well as any favorable inferences reasonably drawn from them, as true," id., our review of the judge's ruling is de novo. Housman v. LBM Fin., LLC, 80 Mass. App. Ct. 213, 216 (2011).

a. Governing documents as contracts. The museum is a charitable corporation incorporated under several acts of the Legislature. While the plaintiffs are correct that these documents constitute "a contract between the Commonwealth and the [museum]," Opinion of Justices, 237 Mass. 619, 622 (1921), that alone does not grant the plaintiffs standing. Absent a plaintiff with interests "distinct from those of the general public," the Attorney General possesses "exclusive" standing in cases involving "the efficient and lawful operation of charitable corporations." Lopez v. Medford Community Ctr., Inc., 384 Mass. 163, 167 (1981). The plaintiffs have failed to show how the harm to them by the sale of the subject paintings is distinct from that of the general public. We reject the plaintiffs' suggestion that the representation in the museum's Web site that membership includes "opportunities to provide feedback" provides them with a distinct interest or injury. Their opportunity to give feedback does not provide them a right to participate in management decisions. Therefore, in this case only the Attorney General has standing to sue for any possible breach of such a contract occasioned by the deaccession of the museum art. Id.

b. Protecting rights as members. The plaintiffs also lack standing to sue as corporate members. A corporate member under G. L. c. 180, § 2 (e ), is "one having membership rights ... in a corporation in accordance with the provisions of its articles of organization or by-laws." Such membership rights include, inter alia, voting rights, G. L. c. 180, § 3, second par., which is not a right included in the plaintiffs' memberships. The museum's bylaws exclusively vest corporate membership rights in the trustees and differentiate between corporate membership, which the trustees have, and mere dues-paying membership, which the plaintiffs have.

c. Suing derivatively. Even if the plaintiffs were corporate members of the museum, they also lack standing to sue derivatively. "[M]embership in a public charity, alone, is [in]sufficient to give standing to pursue claims that a charitable organization has been mismanaged or that its officials have acted ultra vires." Harvard Climate Justice Coalition v. President & Fellows of Harvard College, 90 Mass. App. Ct. 444, 447 (2016), quoting Weaver v. Wood, 425 Mass. 270, 277 (1997). Only the Attorney General possesses such standing. Weaver, supra at 275.

2. Preliminary injunction. Because they lack standing to contest the museum's deaccession of certain art work, they cannot obtain a preliminary injunction to stop that deaccession. Accordingly, we discern no abuse of discretion in the judge's denial of the plaintiffs' request for a preliminary injunction.

Judgment affirmed.

      The plaintiffs further contend that the Superior Court should have enjoined the "liquidation sale." Although we understand the plaintiffs' concern over the movement of the historical works of art from Pittsfield, our precedent requires that we first discern whether they have standing to raise the arguments they make. See Group Ins. Comm'n v. Labor Relations Comm'n, 381 Mass. 199, 202 (1980) (standing is "preliminary issue"). Concluding, for the reasons delineated infra, that they lack such standing, we do not reach those arguments.

      See St. 1871, c. 129; St. 1903, c. 131; and St. 1932, c. 134.

      We need not accept the plaintiffs' legal conclusion in their complaint that they are corporate members. See General Convention of the New Jerusalem in the United States of Am., Inc. v. MacKenzie, 449 Mass. 832, 838 (2007).

      The panel would also like to commend the litigants on both sides for such well-crafted arguments, persuasively-written briefs, and quality oral argument presentations.


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    Patricia A. PINET v. Jorge A. PINET.
    17-P-1221
    Appeals Court of Massachusetts.
    Entered: October 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Patricia Pinet appeals from an order, entered on Jorge Pinet's motion under Mass. R. Dom. Rel. P. 60 (b), vacating Patricia's earlier attorney's fees award. We affirm.

It would be an understatement to characterize the record before us as confused. Nonetheless, it appears that the parties were divorced in 2010. In 2011, Patricia filed a contempt complaint against Jorge. That complaint was resolved when, in January, 2012, a judge ordered Jorge, among other things, to pay Patricia $1,500 in attorney's fees. Jorge did not comply and, in 2014, Patricia filed another contempt complaint, asking for an order compelling Jorge pay the ordered fees. That order entered in January, 2015, with Jorge being ordered to comply by "[n]ot later than March 6, 2015." Jorge complied. Nonetheless, after the January, 2015, hearing Patricia's counsel requested an additional $1,500 in fees. By order dated March 13, 2015, a judge granted Patricia's counsel's request because "[t]he contents of the affidavit submitted by [Patricia's] counsel have persuaded the Court that additional attorney fees are warranted."

More than one year later, in July, 2016, Jorge, through counsel, filed a rule 60 (b) motion to vacate the March 13, 2015, order that Jorge pay an additional $1,500 in attorney's fees, arguing in effect that the order was based on inaccurate alleged facts and was unjust. The same judge that issued the March 13, 2015, order, after hearing from the parties' respective attorneys, vacated the March 13 order. After hearing the arguments by counsel regarding the circumstances that led the judge to enter the order for supplemental fees, the judge reasoned that he could not recall the specific circumstances well enough to be satisfied that there was a basis for resolving the credibility questions in Patricia's favor and that as a result he was no longer confident that there was a basis for the order for supplemental fees. The judge treated Jorge's motion as one falling within the scope of rule 60 (b) (6) and allowed it because it was based on "circumstances which warrant a filing outside the one year period as brought within a reasonable time."

We review the judge's decision only for "a clear abuse of discretion." Tai v. Boston, 45 Mass. App. Ct. 220, 224 (1998), quoting Scannell v. Ed. Ferreirinha & Irmao, Lda., 401 Mass. 155, 158 (1987). Given the serious charges and countercharges levied by counsel at each other, and the evident confusion and differing memories displayed by both counsel and the judge surrounding the events at issue, we cannot say that the judge abused his discretion by making "a clear error of judgment in weighing the factors relevant to the decision" (quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Nor do we agree that Jorge's motion was untimely. Jorge moved to vacate the March 13, 2015, order on grounds of "[e]quity [and] [f]airness," thus invoking "any other reason justifying relief from the operation of the judgment." Mass. R. Dom. Rel. P. 60 (b) (6). Such a motion need not be made within one year but instead "shall be made within a reasonable time." Id. For substantially the reasons discussed by the judge, and particularly in light of the difficulties and confusion occasioned by Jorge's counsel's status, we will not second-guess the judge's determination that Jorge's motion was made within a reasonable time.

Sahin v. Sahin, 435 Mass. 396 (2001), does not require a different result. In Sahin the Supreme Judicial Court reaffirmed that "to prevail under rule 60 (b) (6), a party must show that there is a reason to justify the relief, and also that the reason is not within the grounds set forth in rule 60 (b) (1)-(5)." Id. at 407, quoting Parrell v. Keenan, 389 Mass. 809, 814-815 (1983). Although Patricia characterizes Jorge's motion as being based solely on his allegation that Patricia's counsel committed a fraud on the court, see Mass. R. Dom. Rel. P. 60 (b) (3), this is not accurate. Instead, Jorge brought to the judge's attention, among other things, his alleged financial hardship; his alleged good faith efforts to satisfy the judge's known orders; Patricia's counsel's alleged overzealous advocacy, allegedly amounting to simple harassment; Jorge's alleged absence from certain hearings and proceedings; Jorge's alleged lack of notice of certain hearings, proceedings, and orders; and alleged inaccuracies in the factual bases of the judge's rulings. In short, we are satisfied that Jorge's motion was based in substantial part on reasons "not [falling] within the grounds set forth in rule 60 (b) (1)-(5)." Sahin, supra.

Finally, we note that it was for the judge, who had a "firsthand view of the presentation of the evidence" and was "in the best position to judge the weight and credibility of the evidence," to make findings and draw conclusions therefrom. New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977). We do not review such questions where the judge's "findings are supported on any reasonable view of the evidence, including all rational inferences of which it was susceptible" (quotation omitted). Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997). The judge's essential finding, that the March 13, 2015, order for additional attorney's fees lacked a valid basis when entered and that justice would be best served by vacating that order, is well supported by the record when viewed as a whole. Accordingly, and to the extent made, Patricia's suggestion that the judge's findings are clearly erroneous is without merit.

No error appearing, the order entered January 19, 2017, allowing Jorge's motion for relief and vacating the order of March 13, 2015, is affirmed. All other relief requested in Patricia's brief is denied.

So ordered.


text:
    COMMONWEALTH v. Roland ELLISON.
    17-P-477
    Appeals Court of Massachusetts.
    Entered: October 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant's appeal from his conviction of assault and battery on a correctional officer and his appeal from the denial of his first motion for a new trial were consolidated for appellate purposes. In an unpublished decision, this court affirmed the conviction and the order denying his motion for a new trial. Commonwealth v. Ellison, 87 Mass. App. Ct. 1128 (2015). On February 16, 2017, the defendant filed his second motion for a new trial. The trial judge denied that motion as well as a motion for reconsideration without a hearing. This appeal followed.

The defendant's second motion for a new trial raises issues that either were raised and disposed of in connection with his first motion for a new trial, or which could have been raised in his first motion for a new trial. At the outset, we observe that although the defendant claims that he was deprived of the effective assistance of counsel, he has not provided us with an affidavit from his trial counsel or indicated why he could not obtain one. The absence of an affidavit significantly weakens the defendant's arguments, see, e.g., Commonwealth v. Goodreau, 442 Mass. 341, 353-354 (2004), and allowed the judge to discredit the defendant's statements in his affidavit about his attorney's performance. See Commonwealth v. Espada, 450 Mass. 687, 702 n.17 (2008).

The defendant alleges that his trial counsel was ineffective because he advanced a defense of provocation that was not supported by the evidence. That issue was raised in his first motion for a new trial, and thoroughly reviewed by the panel of this court that affirmed his conviction and the order denying his motion for a new trial. See Ellison, supra. Based on the doctrine of direct estoppel, the defendant is not entitled to any further review of such a question. Commonwealth v. Ellis, 475 Mass. 459, 475 (2016).

The defendant also alleges that his trial counsel was ineffective for not investigating a defense of lack of criminal responsibility and for not objecting to the judge's failure to instruct the jury of the lesser included offense of assault and battery. Because these issues could have been raised in his first motion for a new trial, we review solely to determine whether there has been a miscarriage of justice. See Commonwealth v. LeFave, 430 Mass. 169, 175 (1999). As the Commonwealth points out in its brief, the trial docket indicates that the defendant filed motions for funds for an independent examination of the defendant both for criminal responsibility and competency. The judge denied the motion for funds, but on December 29, 2011, allowed the motion for an examination by a court-appointed expert "to take place in Court Forensic Unit." The defendant's claim is not aided by reference to an impounded forensic examination report dated January 10, 2012. The docket also indicates that an "evaluation report" was submitted to the court on January 10, 2012, by a designated forensic psychologist. Thereafter, defense counsel filed a motion for an additional examination of the defendant. That motion was denied by the trial judge, who had the benefit of the report of the forensic psychologist. The trial judge revisited the issue on March 19, 2012, but was informed that there was no new information bearing on the defendant's competency to stand trial. The defendant did not support the allegations made in his second motion for a new trial with any additional medical or psychiatric records. Accordingly, the defendant has not demonstrated that there is a substantial risk of a miscarriage of justice regarding trial counsel's performance relating to the defendant's mental health, or that he was deprived of an otherwise available defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

For the first time in this appeal, the defendant alleges that his trial counsel was ineffective for not objecting to the judge's refusal to instruct the jury on the lesser included offense of assault and battery. However, the record shows that the defendant's trial counsel, in fact, did ask for a lesser included offense instruction on the theory that the defendant was provoked to attack the correctional officer. Even if the doctrine of provocation was applicable in a correctional setting, the evidence at trial established that the crime against the correctional officer took place after the defendant left the area where there had been a verbal confrontation, adjusted his pants legs, and then returned to suddenly attack the officer. See Commonwealth v. Keohane, 444 Mass. 563, 568 (2005) ("[E]ven where sufficient provocation exists, if a defendant leaves the scene of the provocation ... and then returns to attack the victim, the defendant is considered to have had adequate opportunity for his anger to subside"). Furthermore, the legal basis for a provocation instruction was lacking. Commonwealth v. Vatcher, 438 Mass. 584, 588 (2003) ("Insults and quarreling alone cannot provide a reasonable provocation, even between adults" [quotation omitted] ). Again, there is no basis for the defendant's claim that his trial counsel was ineffective in relation to the judge's jury instructions, and certainly no risk of a miscarriage of justice.

To the extent that the defendant raises other issues here, we have considered them and find them to be without merit.

Order denying second motion for a new trial affirmed.