text:
    COMMONWEALTH v. Robert S. EMERTON.
    No. 17-P-771.
    Appeals Court of Massachusetts, Suffolk..
    Argued December 1, 2017 Decided October 31, 2018
    Sarah Montgomery Lewis, Assistant District Attorney, for the Commonwealth.
    Francis M. Doran, Jr., Natick, for the defendant.
    Present: Agnes, Blake, & McDonough, JJ.
   AGNES, J.

The defendant, Robert S. Emerton, was charged with operating a vehicle while under the influence of alcohol (OUI), fourth offense, after he was arrested at a sobriety checkpoint on Soldiers Field Road in the Brighton section of Boston. On October 11, 2016, the defendant filed a motion to suppress evidence, arguing that the roadblock was not carried out in accordance with constitutional requirements. A judge of the Brighton Division of the Boston Municipal Court Department allowed the defendant's motion to suppress, reasoning that the roadblock was unlawful because there was insufficient data to justify the selection of the site, date, and time of the roadblock. A single justice of the Supreme Judicial Court allowed the Commonwealth's petition for interlocutory review and transferred the matter to this court. The Commonwealth argues that the roadblock complied with State police policy and otherwise met the requirements of the governing case law. We agree and, accordingly, reverse the order of suppression.

Background. The following facts are drawn from the judge's findings of fact and other undisputed evidence offered at the hearing on the defendant's motion to suppress. Between the hours of 11:30 P.M. on Saturday, May 14, 2016, and 3 A.M. on the morning of Sunday, May 15, 2016, members of the State police conducted a "sobriety checkpoint" along Soldiers Field Road in Brighton, opposite the Artesani Park parking lot at Everett Street, in order to detect drivers impaired by the consumption of alcohol. This location is about halfway between Harvard Stadium and Western Avenue. Captain Richard Ball, who was the officer in charge of the checkpoint and was certified to perform such a role, designed the plan for the checkpoint in accordance with instructions from his commanding officer. At the motion hearing, Captain Ball explained that under State police policy, the commanding officer of the State police troop in question reviews data from the prior two years compiled by another officer concerning alcohol-related arrests throughout the area patrolled by the troop and then makes a selection of the site for the sobriety checkpoint. In this case, Captain Ball's commanding officer followed that procedure and selected Soldier's Field Road at Artesani Park as the location for the roadblock.

Captain Ball also testified that he consulted State police General Order TRF-15 (effective April 23, 2009) (TRF-15), which governs the policies and procedures for conducting such checkpoints. As the officer in charge, Captain Ball prepared certain documents to guide the members of the State police assigned to staff the sobriety checkpoint that is the subject of this case. These documents, collected in the Written Operations Plan & Officer's Directives, were received in evidence and marked as exhibits.

In his testimony, Captain Ball explained how sobriety checkpoints are carried out by the State police. Vehicles traveling on the roadway where the checkpoint is established first encounter a marked police cruiser with its emergency lights flashing. An illuminated board with an arrow directs vehicles to move to the right and to enter a "cone taper," a single lane created by traffic cones. A series of six signs informs motorists to be prepared to stop and that they are approaching a sobriety checkpoint. At some point while in this lane, vehicles are required to briefly stop. The operator is greeted by a uniformed member of the State police, who performs an initial screening function based on an observation of the operator and the manner in which the operator responds to the officer's greeting. Typically, the greeting officer states, "Hello, this is a State police sobriety checkpoint. How are you tonight?" See Commonwealth v. Swartz, 454 Mass. 330, 332, 910 N.E.2d 277 (2009). Unless the greeter detects signs of impairment due to the consumption of an alcoholic beverage ("glassy, red, bloodshot eyes, odor of alcoholic beverage, slurred speech"), or evidence that another crime is being committed, the driver of the vehicle is waved on through the checkpoint. The initial stop takes less than one minute. If the greeter suspects that the driver is under the influence of alcohol, the driver is directed to a screening location where a different trooper is stationed. During the second screen, the trooper engages the driver in conversation and may ask the driver if he or she has consumed any alcohol. If there is confirmation of the initial suspicion of impairment due to the consumption of alcohol, the second screener may request that the driver perform field sobriety tests. See Commonwealth v. Murphy, 454 Mass. 318, 321, 910 N.E.2d 281 (2009). The second screening involves a longer detention that may last ten to fifteen minutes. As a result of this second screening, the motorist is either placed under arrest or allowed to proceed through the checkpoint.

In his capacity as the officer in charge, Captain Ball's responsibilities included briefing the troopers and officers assigned to the sobriety checkpoint, each of whom received a packet of information and instructions (including the operational plan and the rules, regulations, and case law that govern sobriety checkpoints). He also drove his vehicle through the checkpoint before it became operational to ensure that the signage was proper and that it was safe for motorists. Periodically during the operation of the checkpoint, Captain Ball walked through it to ensure the checkpoint was being conducted according to the operational plan. The operational plan required that every vehicle entering the checkpoint would be subjected to preliminary screening; the officers staffing the checkpoint were not given discretion to pick and choose the vehicles to be screened. As the officer in charge, Captain Ball was authorized to suspend the screening for safety reasons if there was a backup of vehicles. In that case, all vehicles would be waved through the checkpoint until the screening function was resumed.

On the night in question, approximately 1,180 vehicles entered the checkpoint and encountered the trooper serving as the greeter, and "[f]ifty-something" vehicles received secondary screening. Sergeant Nasuti, also of the State police, greeted the defendant at the checkpoint. While speaking to Sergeant Nasuti, the defendant admitted to having consumed alcohol that night. Sergeant Nasuti observed that the defendant had glassy, red eyes and smelled of an alcoholic beverage. The defendant was sent for further screening based on Sergeant Nasuti's observations. Based on the observations made during the secondary screening, the defendant was arrested.

Discussion. When reviewing a judge's findings and rulings on a motion to suppress evidence, we accept the judge's subsidiary findings of fact unless it is shown that there is clear error, but we make an independent determination whether the judge correctly applied constitutional principles to the facts as found. See Commonwealth v. Ocasio, 434 Mass. 1, 4, 746 N.E.2d 469 (2001). The constitutional provisions governing this case are well established. The stop of the defendant's vehicle was a warrantless seizure without individualized suspicion. Murphy, 454 Mass. at 322, 910 N.E.2d 281. "In determining whether such seizures are reasonable, we have recognized that we must balance the strong public interest in reducing the number of persons who die each year on our highways from alcohol-related accidents against the individual's right to personal security free from arbitrary interference by law officers" (quotations omitted). Id.

The sole question before us is whether the judge was correct in concluding that the roadblock in question was unlawful because the selection of the timing and location of the roadblock on Soldiers Field Road was in violation of constitutional standards and State police policy. In order for a sobriety checkpoint to meet the constitutional test of reasonableness, "the selection of motor vehicles to be stopped must not be arbitrary, safety must be assured, motorists' inconvenience must be minimized, and assurance must be given that the procedure is being conducted pursuant to a plan devised by law enforcement supervisory personnel." Id. at 323, 910 N.E.2d 281, quoting Commonwealth v. McGeoghegan, 389 Mass. 137, 143, 449 N.E.2d 349 (1983). To this end, State police policy, as reflected in the record on appeal, provides that police administrators and supervisors must select a site "where accidents or prior arrests for drunken driving have occurred ...." In addition, the troopers and officers assigned to a sobriety checkpoint must comply strictly with the State police guidelines and the specific plan developed for each sobriety checkpoint. See Commonwealth v. Anderson, 406 Mass. 343, 349, 547 N.E.2d 1134 (1989) ("Adherence to a neutrally devised, preplanned blueprint in order to eliminate arbitrariness and discretion has been this court's principal prerequisite for abandoning the requirement of individualized suspicion in roadblock stops").

In the present case, the judge found that TRF-15 and the other policies governing the roadblock at issue comported with the McGeoghegan principles. He rejected the defendant's claims that the State police troopers and officers conducting the sobriety checkpoint were impermissibly given discretionary authority over when to wave vehicles through the roadblock and when to stop them, and that the State police failed to give the public sufficient advance notice of the roadblock. However, the judge determined that the selection of the site and timing for the roadblock was unreasonable and in violation of State police policy and the State and Federal Constitutions because it was not based on sufficient statistical data.

In keeping with the 1983 guidelines approved in Commonwealth v. Trumble, 396 Mass. 81, 89, 483 N.E.2d 1102 (1985) (see note 5, supra ), TRF-15 requires that the selection of the site for a sobriety checkpoint "shall be made based upon selective enforcement identifiers of alcohol related traffic crashes or prior OUI violations such as: [t]ime; [d]ay of the week; and [l]ocation." TRF-15 does not require that the site selected be one where any minimum number of alcohol-related arrests were made or accidents occurred, or where the most such events occurred. It also expressly requires that the supervisory law enforcement officers who select the site take into account "[s]afety considerations," including the safety of motorists and the police, as well as "[s]ight visibility; [t]raffic volume and pattern; [o]perator reaction time; and [o]perator stopping distance."

The reason why the site ("Soldiers Field Road, at the intersection of Artesani Park, in the Brighton section in the city of Boston") was selected in this case is explained in the "Site Problem/Selection Sheet," prepared by the State police and part of the record on appeal. It contains the following statement:

"State Police Policy and case law state ... that site selection must be a problem area, one where accidents or prior arrests for drunken driving have occurred and based upon selective enforcement identifiers of alcohol related traffic accidents or prior OUI violations.
"The records of the State Police Brighton Barracks were searched for statistical data showing a high incidence of OUI arrests and accidents resulting in OUI arrests in the surrounding area and roadways leading to Soldiers Field Road, Brighton. From May 14th, 2014 to May 9th, 2016 there were 167 OUI arrest [sic ] made by the State Police Brighton Barracks, 83 arrests were in the City [of] Boston and 83 of those arrests were on Soldiers Field Rd[.] or the Roadways leading to Soldiers Field Rd."

The judge concluded that the analysis by the State police for the site selection in this case was constitutionally inadequate because (1) it lacked justification for the time of day and day of the week (a weekend versus a weekday) selected, (2) it lacked justification for the selection of Soldiers Field Road versus one of the roads leading to Soldiers Field Road, and (3) the total number of alcohol-related arrests over a two-year period (eighty-three) was not significant enough to establish that Soldiers Field Road was a "problem area."

With regard to the decision to select Saturday, May 14, 2016, beginning at 11:30 P.M. until Sunday, May 15, 2016, at 3 A.M. as the date, time, and duration of the sobriety check point, we agree with the Commonwealth that neither State police guidelines nor constitutional reasonableness requires the police to demonstrate empirically the precise day of the week and time of day when the most arrests and accidents have previously occurred, and then to choose that day and time for establishing a sobriety checkpoint. Rather, it was reasonable for the State police to select a Saturday in the late evening into the early morning hours of a Sunday to operate the sobriety checkpoint, as it is widely known that these are the hours when many people are driving home from movie theatres, restaurants, bars, and other entertainment venues in and around the city of Boston where alcoholic beverages are served. See G. L. c. 138, § 12 (alcohol may not be served by licensed establishments after 2 A.M. ). It also was reasonable for the State police to assume that among the population of working adults, fewer people are required to work on Sunday morning than on other days. For these reasons, it was reasonable for the State police to assume that there would be as high a percentage (if not a higher percentage) of impaired drivers among the people operating motor vehicles in the late evening and early morning hours of Saturday into Sunday, as compared to any other night of the week. Here, the determination by the State police of the date and duration of the sobriety checkpoint satisfied the requirement that "the roadblock meet standard, neutral guidelines." Anderson, 406 Mass. at 347, 547 N.E.2d 1134. The State police guidelines also expressly require that law enforcement supervisors consider the safety of motorists in determining site selection. If the police choose a time of day or night when there is expected to be a very high volume of vehicles, there is a greater risk of accidents unrelated to alcohol impairment, as well as the likelihood that due to backups, more vehicles would be waved through the checkpoint without being screened.

With regard to the selection of Soldiers Field Road versus one of the roads leading to Soldiers Field Road, we have observed that site selection must be "based on fresh, reliable information" and not left to the discretion of the State police. Commonwealth v. Donnelly, 34 Mass. App. Ct. 953, 955, 614 N.E.2d 1018 (1993). We conclude that such "fresh" and "reliable" data was used in this case. At the motion hearing, Captain Ball testified that before deciding where a roadblock will be located, the troop commander compiles information regarding the areas with "high inciden[ce] of OUI infractions." In this case, the evidence was collected over the course of the two years preceding the sobriety checkpoint, up to and including five days before the checkpoint was conducted. The evidence provided showed that of the 167 alcohol-related arrests made by troopers assigned to the Brighton barracks in that two-year period, eighty-three of the arrests occurred on Soldiers Field Road or the roads leading to Soldiers Field Road. This is not a case where outdated reports were relied upon for site selection. The statistics here were "compiled continuously" and covered a full two years of relevant information. Contrast Donnelly, 34 Mass. App. Ct. at 954-955, 614 N.E.2d 1018 (judge should have allowed motion to suppress where roadblock was conducted in late 1989, the only evidence of prior alcohol-related incidents was from 1987, and results of recent roadblocks in the same area were not offered in evidence). Insofar as the judge understood the Constitution or TRF-15 to require the police to identify the location of the eighty-three alcohol-related arrests more precisely than by indicating they occurred on Soldiers Field Road and the roads leading to Soldiers Field Road, we do not believe that such a degree of precision is required.

The judge also reasoned that even if it were assumed that all eighty-three of the past arrests were made on Soldiers Field Road, that number of arrests over a two-year period was not sufficient to support labeling Soldiers Field Road a "problem area." We do not agree. In Commonwealth v. Amaral, 398 Mass. 98, 495 N.E.2d 276 (1986), where the Supreme Judicial Court determined that a roadblock carried out without a plan drawn up by law enforcement supervisory personnel and without any advance notice to the public did not meet constitutional standards, the court added that "[a]nother factor that tends to eliminate arbitrariness is the selection of a roadblock site because it has been a problem area, one 'where accidents or prior arrests for drunken driving have occurred.' " Id. at 101, 495 N.E.2d 276, quoting the 1983 guidelines reviewed in Trumble, 396 Mass. at 92, 483 N.E.2d 1102. In Donnelly, we explained that the critical element that differentiates a site selection that meets constitutional standards from one that does not is the nature of the data used to make the selection. "By relying on reports that are two years old, combined with the failure to produce recent, pertinent information which the State police generated and which does not appear to have been unavailable for the trial, the Commonwealth converted the site selection from a choice based on fresh, reliable information to a choice made by the State police in their discretion. The necessary adherence to the Commonwealth's own guidelines was not satisfied ...." 34 Mass. App. Ct. at 955, 614 N.E.2d 1018.

In the present case, unlike in Amaral and Donnelly, supervisory law enforcement personnel selected the site for the roadblock in compliance with State police guidelines and on the basis of "fresh, reliable" crash and arrest data, namely data from the two-year period immediately preceding the roadblock that was compiled by the State police Brighton barracks. Neither the Supreme Judicial Court nor this court has previously required the police to demonstrate any minimum number of alcohol-related arrests or accidents that must have occurred in a location before it may be the site of a roadblock. To require a strict correspondence between the site selected for a sobriety checkpoint and the precise location of the largest number of alcohol-related arrests over time or a minimum number of alcohol-related arrests per week or per month at the location selected for a sobriety checkpoint is another way of demanding that in order to meet the test of reasonableness, a sobriety checkpoint must represent the least intrusive alternative among all the choices available for the enforcement of G. L. c. 90, § 24. This line of reasoning was rejected in Commonwealth v. Shields, 402 Mass. 162, 165-168, 521 N.E.2d 987 (1988). Furthermore, in selecting the site for a sobriety checkpoint under TRF-15, as noted earlier, supervisory law enforcement personnel must consider the safety of motorists and law enforcement personnel. See Trumble, 396 Mass. at 89, 483 N.E.2d 1102.

These considerations demonstrate that the selection of the site for a sobriety checkpoint requires the exercise of discretion by supervisory law enforcement officials, who must take into account safety and convenience factors as well as the number of alcohol-related arrests. In the present case, the judge concluded, as a matter of law, that it was unreasonable for the commanding officer of the State police troop in question to select a site on Soldiers Field Road for a sobriety checkpoint based solely on data indicating there were eighty-three arrests in the prior two years (on average, three and one-half arrests each month) for alcohol-related offenses in the area because that number of arrests was not sufficiently indicative of the location being a problem area. This reasoning focuses exclusively on the value of sobriety checkpoints as a means of detecting impaired drivers and not at all on their value in deterring people from driving when under the influence of alcohol. Neither TRF-15 nor the prior decisions of the Supreme Judicial Court or this court provide support for such a limited understanding of the reasonableness requirement under the Fourth Amendment to the United States Constitution or art. 14 of the Massachusetts Declaration of Rights.

Conclusion. For the above reasons, the order allowing the defendant's motion to suppress is reversed, and a new order shall enter denying the motion.

So ordered.

      State police General Order TRF-15 has been examined in several recent appellate court decisions. See, e.g., Commonwealth v. Swartz, 454 Mass. 330, 910 N.E.2d 277 (2009) ; Commonwealth v. Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009) ; Commonwealth v. Baker, 91 Mass. App. Ct. 445, 76 N.E.3d 1021 (2017) ; Commonwealth v. Bazinet, 76 Mass. App. Ct. 908, 924 N.E.2d 755 (2010).
      In Murphy, supra at 319-320, 910 N.E.2d 281, the Supreme Judicial Court determined that an earlier version of TRF-15 that, unlike the present version, allowed but did not require the initial screener to refer drivers to secondary screening if they appeared to be impaired met constitutional requirements:
      "We conclude that TRF-15 falls within constitutional parameters, because its guidelines permit a vehicle to be diverted to secondary screening only when the officer has a reasonable suspicion, based on articulable facts, that the driver has committed an OUI violation or another violation of law. The second question presented is whether TRF-15 allows a constitutionally impermissible amount of discretion to the initial screening officers to question drivers when there is no indication of intoxication. We conclude that, as a result of the orders and instructions in the operations plan that governed this sobriety checkpoint and supplemented the guidance provided by TRF-15, the discretion provided to the initial screening officers in greeting motorists was appropriately limited to pass constitutional muster."

      The Written Operations Plan and Officer's Directives consists of a number of different documents, including a copy of TRF-15; briefing notes for the troopers who participate in the sobriety checkpoint; an order from the State police division commander; a "Site Problem/Selection Sheet," which explains why the sobriety checkpoint was located near Artesani Park and contains a diagram of the area; a written order from the Troop H commander to Captain Ball, outlining his responsibilities as the detail commander; a news release about the sobriety checkpoint; a duty assignment sheet and duty roster form; an activity log; a data collection sheet; and some legal guidance.

      On the evening in question, a backup did occur at one point, and about eighty vehicles were waved through the checkpoint without screening.

      The factors that must be considered in determining the constitutionality of sobriety checkpoints are the same under State and Federal law. Murphy, 454 Mass. at 323 n.5, 910 N.E.2d 281.

      The quoted language can be found in the "Site Problem/Selection Sheet" used to select the Soldiers Field Road sobriety checkpoint location in the present matter, and is a direct quote from State police guidelines for roadblocks promulgated in 1983. In Commonwealth v. Trumble, 396 Mass. 81, 89, 483 N.E.2d 1102 (1985), the Supreme Judicial Court determined that the 1983 guidelines satisfied the constitutional requirements set forth in McGeoghegan, 389 Mass. at 143, 449 N.E.2d 349. The 1983 guidelines provided, in pertinent part:
      "SITE SELECTION: Problem areas -- where accidents or prior arrests for drunken driving have occurred. Specific areas to be selected by respective administrators and supervisors.
      "A. Individual site selection should be based on selective enforcement identifiers as to time, place and cause of prior serious injury accidents.
      "B. Site should allow officers to pull vehicles out of the traffic stream without causing a significant intrusion to them and/or creating a safety hazard because of a traffic back-up. It is suggested that areas adjacent to rest areas or parking lots be utilized.
      "C. Selected sites should allow for visibility of on-coming motorists, safety for stopped vehicles, as well as safety for the officers."
      Trumble, supra at 92, 483 N.E.2d 1102.

      While the defendant argued at the hearing on the motion to suppress that the statistical data was not sufficient to establish why the sobriety checkpoint was sited in the location in question on Soldiers Field Road, there was no evidence presented that there was another suitable location in the area or on any of the roadways leading to Soldiers Field Road.

      The exercise of discretion by supervisory law enforcement officers in selecting the site for a sobriety checkpoint must be distinguished from the need by law enforcement to follow a guideline such as TRF-15 that strictly limits the discretion that may be exercised by law enforcement personnel carrying out the roadblock. See Murphy, 454 Mass. at 323, 910 N.E.2d 281 ("Because sobriety checkpoints, by their very nature, initially stop drivers without any individualized suspicion, giving police officers such discretion poses too high a risk that the discretion will be standardless and unconstrained" [quotation omitted] ); id. at 325, 910 N.E.2d 281 ("police officer discretion in deciding whom to stop must be severely circumscribed by clear guidelines"). See also Commonwealth v. Aivano, 81 Mass. App. Ct. 247, 250, 961 N.E.2d 613 (2012) ("the linchpin for determining the constitutionality of a roadblock is the use of a predetermined plan, developed by supervisory law enforcement personnel, to eliminate the exercise of discretion by law enforcement personnel in the field").

      The Division Commander's Order, 15-DFS-044 (2015), which is part of the supporting documentation for the sobriety checkpoint in this case, indicates that "sobriety checkpoints" are one of a number of "highway safety mobilizations" designed "to achieve reductions in fatal and personal injury motor vehicle crashes and create a safer and more efficient highway transportation system within the Commonwealth ...." In McGeoghegan, 389 Mass. at 143-144, 449 N.E.2d 349, the Supreme Judicial Court noted that high visibility police activities like sobriety checkpoints "may achieve a degree of law enforcement and highway safety that is not reasonably attainable by less intrusive means." And, in Shields, 402 Mass. at 167 n.3, 521 N.E.2d 987, the court stated that "[t]he strong State interest in eliminating the carnage caused by drunk drivers, ... sets roadblocks to enforce c. 90, § 24, apart from roadblocks for other purposes" (quotation omitted). These cases recognize that carefully regulated, high visibility law enforcement activities may have a deterrent effect that cannot be achieved by traditional enforcement measures.


source: Caselaw Access Project

author: MALDONADO, J.

license: Public Domain

text:
    Oliver C. BIEWALD v. SEVEN TEN STORAGE SOFTWARE, INC., & others.
    No. 17-P-30
    Appeals Court of Massachusetts, Essex..
    Argued December 4, 2017 Decided October 31, 2018
    Sarah A. Catignani, Quincy, for the plaintiff.
    Bradley L. Croft (Michael J. Duffy, Boston, also present) for the defendants.
    Present: Green, Maldonado, & Kinder, JJ.

      Seven Ten Storage Software, LLC; Brojaban, Inc.; Robert J. Moulton; James F. Moulton; and Gary J. LaFreniere.

   MALDONADO, J.

Oliver C. Biewald commenced this action against his former employer, Seven Ten Storage Software, Inc., now known as Brojaban, Inc., and Seven Ten Software, LLC (collectively, Seven Ten), and several of its executives asserting a variety of claims related to the nonpayment of sales commissions. A Superior Court judge dismissed most of those claims on the defendants' motion for summary judgment. A second judge then presided over a trial of the remaining claims, at the conclusion of which the jury found largely in favor of Biewald and awarded him damages for violations of the Wage Act, G. L. c. 149, § 148, and breach of his employment agreement. In response to the defendants' motion for judgment notwithstanding the verdict, however, the trial judge, who had reserved ruling on the defendants' motions for a directed verdict during the trial, vacated the verdict and ordered judgment for the defendants. The judge concluded that Biewald's claims were barred by the unambiguous provisions of his employment agreement. She further concluded that, even assuming the employment agreement was ambiguous, the verdict could not be sustained on any reasonable view of the evidence. On appeal from the final judgment, Biewald challenges that ruling and the dismissal of certain claims on summary judgment. He also appeals from a postjudgment order awarding costs to the defendants. We affirm.

Background. On June 22, 2007, Seven Ten, a "startup" company that developed and marketed data storage software, entered into a written agreement (employment agreement) with Biewald to employ him as vice president of strategic sales. Under the terms of the employment agreement, Biewald was entitled to an annual salary of $60,000 and to commissions as follows:

"3.4 Commissions. The Employee shall receive payment for any sale, purchase, transfer, or contract for the services, licenses, and/or products -- for internal use, distribution or for resale -- of Employer products/services ('Sale') to the companies defined in and agreed upon in the attached Exhibit A (Exclusive List) at such time as any consideration for such sale is provided to Employer, whether in the form of purchase orders, promissory notes, letters of intent, monies, cash, stock, options for stock, or any other consideration in any form whatsoever ('Consideration'); the commission shall be 50% (fifty percent) of said sale....
"3.4.1 Guaranteed contracts. For all OEM/Partner/Reseller/Distributor contracts signed with a committed and guaranteed revenue stream to Employer, Employee shall receive, in addition to the commissions stated in Section 3.4, Five Percent (5%) of the guaranteed revenue payable upon execution of such agreement. Commissions on contract hereunder will be paid upon receipt of payment by OEM/Partner/Reseller/Distributor."

The employment agreement had no defined term and instead provided that Biewald was an at-will employee, who could be terminated at any time, with or without cause. Upon such termination, the employment agreement further provided, in section 2, that only certain sections of the employment agreement would survive. Sections 3.4 and 3.4.1 were not included among those sections.

Approximately two years later, on September 2, 2009, Seven Ten, through Biewald's efforts, entered into a distributor agreement (EMC contract) with EMC Corporation (EMC) that fell within section 3.4 of Biewald's employment agreement. However, because the EMC contract did not provide Seven Ten with a committed or guaranteed revenue stream, it did not qualify as a "guaranteed contract" under section 3.4.1 of the employment agreement. In fact, while EMC had the right under the EMC contract to make purchases from Seven Ten, it was not obligated to do so. The only way that Seven Ten could realize revenue under the EMC contract was if EMC subsequently chose to submit a purchase order. Theoretically, the EMC contract could expire without EMC ever having submitted an order. Seven Ten, meanwhile, was obligated to pay EMC $51,000 over the term of the EMC contract for admittance to EMC's so-called "Select" program.

At the time, Seven Ten was, like many companies, struggling in the wake of the worldwide financial crisis and facing an uncertain future unless it could secure a fresh infusion of capital. In the summer of 2009, a new investor -- an "angel" investor -- had surfaced. The new investor conditioned its investment on Seven Ten's implementation of various changes, including the reform of existing employment contracts. On October 9, 2009, therefore, Seven Ten notified Biewald that his employment agreement was being terminated, effective at the end of that month.

Seven Ten also expressed a desire to retain Biewald's services, if new employment terms could be agreed upon. In the meantime, it agreed to increase Biewald's annual salary to $75,000 but reduced his commission rate in stages (forty per cent for November, thirty per cent for December, and ten per cent on and after January 1, 2010), effective November 1, 2009.

Over the following weeks, Biewald and Seven Ten engaged in negotiations, with Biewald primarily expressing concern over whether he would still be paid commissions he believed he had already earned under section 3.4 of the employment agreement. On November 24, 2009, with no new employment agreement in place, Seven Ten notified Biewald that, forthwith, it was further reducing his compensation to salary only, with no commissions. Then, on December 2, 2009, after a meeting that again failed to result in an agreement, Seven Ten terminated Biewald's employment altogether, effective the same day.

Subsequently, Seven Ten paid Biewald commissions based on the new forty per cent rate imposed as of November 1, 2009, on two EMC-related purchase orders received on November 20 and 24, 2009. There was also a third EMC-related purchase order received on November 30, 2009, on which Seven Ten refused to pay any commission, citing the "salary only" compensation terms imposed as of November 25, 2009. Seven Ten also refused to pay Biewald for any EMC-related purchase orders received after the December 2, 2009, employment termination date.

In response, Biewald filed a wage complaint with the Attorney General's office and then commenced this action, claiming, inter alia, that he was entitled, under section 3.4 of the employment agreement, to be paid a fifty per cent commission on all EMC-related purchase orders, whether they were received before or after the termination of his employment. The jury agreed with Biewald and awarded him $10,730 under the Wage Act based on the balance due for commissions on the November 20, 24, and 30, 2009, purchase orders, and $807,376 under the employment agreement for unpaid commissions on EMC-related purchase orders received after December 2, 2009. However, the trial judge vacated the verdict and ordered judgment for the defendants. This appeal followed.

Analysis. 1. Judgment notwithstanding the verdict. a. Standard. A ruling on a motion for judgment notwithstanding the verdict presents a question of law that we review under the same standard as the trial judge, construing the evidence in the light most favorable to the nonmoving party -- here, Biewald. O'Brien v. Pearson, 449 Mass. 377, 383, 868 N.E.2d 118 (2007). The standard is whether the evidence, construed against the defendants, justifies the jury verdict against them. Id."Our duty in this regard is to evaluate whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of [Biewald]" (quotation omitted). Id.

b. Determination of ambiguity. Biewald first argues that the trial judge erred when she determined that the employment agreement unambiguously extinguished any right he might have had under section 3.4 to collect commissions on EMC-related purchase orders received after the employment agreement was terminated. The interpretation of a contract, including the determination regarding ambiguity, presents a question of law for the court, subject on appeal to de novo review. See Balles v. Babcock Power Inc., 476 Mass. 565, 571, 70 N.E.3d 905 (2017). The rules of interpretation are well established. "To answer the ambiguity question, the court must first examine the language of the contract by itself, independent of extrinsic evidence concerning the drafting history or the intention of the parties." Bank v. Thermo Elemental Inc., 451 Mass. 638, 648, 888 N.E.2d 897 (2008). "The words of a contract must be considered in the context of the entire contract rather than in isolation.... When the words of a contract are clear, they must be construed in their usual and ordinary sense ...." General Convention of the New Jerusalem in the U.S. of Am., Inc. v. MacKenzie, 449 Mass. 832, 835, 874 N.E.2d 1084 (2007). "[A]n ambiguity is not created simply because a controversy exists between the parties, each favoring an interpretation contrary to the other." Boazova v. Safety Ins. Co., 462 Mass. 346, 351, 968 N.E.2d 385 (2012), quoting Citation Ins. Co. v. Gomez, 426 Mass. 379, 381, 688 N.E.2d 951 (1998). "Language is ambiguous where the phraseology can support a reasonable difference of opinion as to the meaning of the words employed and the obligations undertaken" (quotation omitted). Ferri v. Powell-Ferri, 476 Mass. 651, 654, 72 N.E.3d 541 (2017).

According to Biewald, the language of section 3.4 of the employment agreement is reasonably susceptible to more than one interpretation, thereby rendering it ambiguous. Specifically, he contends that one reasonable interpretation is that his right to a commission vested the moment he made a "Sale," and that only his right to payment of that commission had to await Seven Ten's receipt of "Consideration." In the case of the EMC contract, therefore, he contends his right to a commission vested the moment the EMC contract was executed on September 2, 2009, while only his right to payment of that commission had to wait until EMC provided a purchase order. We disagree.

There is no distinction in section 3.4 of the employment agreement between a right to a commission and a right to be paid a commission. The plain language provides that Biewald was entitled to be paid a commission on a " 'Sale' ... at such time as any consideration for such sale [was] provided to [Seven Ten]." Clearly, there were two conditions precedent, a "Sale" and"Consideration." And, whether one views it as a right to a commission or a right to be paid a commission, that right did not arise (or vest) until both conditions were satisfied. The employment agreement also plainly provided, in section 2, that only certain sections of the employment agreement survived termination. Section 3.4 was not one of those sections. Whatever rights Biewald had under section 3.4, therefore, did not survive unless there had already been a "Sale" accompanied by "Consideration."

Even assuming, as we do, that the EMC contract qualified as a "Sale" under section 3.4 of the employment agreement, it is undisputed that no "Consideration" was provided at the time the EMC contract was executed. EMC did not commit to make any purchases from Seven Ten and only became obligated to pay Seven Ten if and when EMC submitted a subsequent purchase order. "Consideration," therefore, was provided, and Biewald's commission rights vested, only when a purchase order was submitted. Therefore, once Biewald's employment agreement was terminated, he was entitled to commissions in the rates specified under that agreement only for those purchase orders submitted, with consideration, on or before October 31, 2009. We conclude, therefore, that under the plain language of the employment agreement, Biewald was not entitled to commissions at the rates provided under section 3.4 on the November 20, 24, or 30, 2009, purchase order, or on any EMC-related purchase orders received thereafter. The jury verdict, therefore, could not stand.

c. Assuming an ambiguity. Biewald further argues that the trial judge erred when she determined that, even if the employment agreement was ambiguous, the jury verdict was not supported by any view of the evidence. However, Biewald has not identified, and we have not located, any extrinsic evidence that supports his interpretation of the employment agreement. Even assuming an ambiguity, therefore, he failed to sustain his burden of proof, and judgment notwithstanding the verdict properly issued for the defendants.

2. Summary judgment. a. Standard. We review a decision to grant summary judgment de novo, construing all facts in favor of Biewald as the nonmoving party. See Miller v. Cotter, 448 Mass. 671, 676, 863 N.E.2d 537 (2007). The defendants, as the moving parties, have the burden of establishing that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law. See Drakopoulos v. U.S. Bank Nat'l Ass'n, 465 Mass. 775, 777, 991 N.E.2d 1086 (2013).

b. Retaliation. Biewald argues that the motion judge erred by granting summary judgment to the defendants on his claim (count II) that the defendants violated G. L. c. 149, § 148A, by retaliating against him after he had expressed concerns about payment for earned commissions. "Lacking any direct evidence of a retaliatory motive, [Biewald] had the burden of establishing a prima facie case of retaliation, and, in the wake of the defendants' introduction of nonretaliatory reasons for the various actions taken, the burden of proving that the articulated nonretaliatory reasons were pretext." Mole v. University of Mass., 442 Mass. 582, 591, 814 N.E.2d 329 (2004).

To make out a prima facie case, Biewald "had to show that [he] engaged in protected conduct, that [he] suffered some adverse action, and that 'a causal connection existed between the protected conduct and the adverse action.' " Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 406, 50 N.E.3d 778 (2016), quoting Mole, 442 Mass. at 591-592, 814 N.E.2d 329. Even assuming that Biewald could satisfy the first two elements, however, he could not satisfy the third. Contrary to Biewald's assertions, a causal connection cannot be inferred in this case from the timing and sequence of events. Rather, the critical adverse action -- the October 9, 2009, notice of the upcoming termination of the employment contract that Biewald claimed gave him a right to vested commissions -- does not postdate any alleged protected activity.

Still, Biewald contends that, after he raised his concerns, the defendants went on to reduce his commission rate, eventually reduce his compensation to "salary only," and then terminated his employment altogether. Because these actions came after Biewald protested the loss of compensation, we apply the familiar three-part test for determining whether his termination was for an improper motive. Verdrager, 474 Mass. at 406, 50 N.E.3d 778. We assume that the timing of the adverse action was sufficient to make out Biewald's prima facie case. See id. at 409, 50 N.E.3d 778 ("[T]emporal proximity ... is one form of 'circumstantial evidence that .... can demonstrate' the required causal connection"). The defendants presented evidence in support of their claim that they took these actions only because they could not come to terms with Biewald on a new employment agreement. Biewald claims that this reason was pretextual, but as the judge aptly noted, the defendants were not required to retain Biewald, an at-will employee, indefinitely and on his terms. On this unique factual record, therefore, the defendants were entitled to summary judgment.

c. Good faith and fair dealing. Biewald further argues that his claim (count VII) for breach of the implied covenant of good faith and fair dealing should have survived summary judgment given his assertion that Seven Ten terminated the employment agreement to deprive him of commissions under the EMC contract. See Fortune v. National Cash Register Co., 373 Mass. 96, 104-105, 364 N.E.2d 1251 (1977). Seven Ten, however, offered evidence of a legitimate business reason for terminating the employment agreement, namely, to satisfy the demands of the "angel" investor. Biewald, in turn, has not offered any evidence that calls that explanation into question. Summary judgment was therefore proper on this count. See York v. Zurich Scudder Invs., Inc., 66 Mass. App. Ct. 610, 618, 849 N.E.2d 892 (2006) (whether termination was for good cause typically presents question of fact for jury, but not if it is undisputed that action was "reasonably related, in the employer's honest judgment, to the needs of [its] business" [quotation omitted] ).

3. Costs. Finally, Biewald appeals from the trial judge's order awarding costs in the amount of $3,464.60 to the defendants, pursuant to Mass. R. Civ. P. 54 (e), as amended, 382 Mass. 829 (1981). The costs related to six depositions, at least four of which were of named parties, and two document subpoenas. While only one transcript may have been used at trial, and no documents may have been produced in response to the subpoenas, we see no basis for concluding that the award amounted to an abuse of discretion. See Scholz v. Delp, 473 Mass. 242, 254, 41 N.E.3d 38 (2015), cert. denied, --- U.S. ----, 136 S.Ct. 2411, 195 L.Ed.2d 781 (2016).

Judgment affirmed.

Order awarding costs affirmed.

      Biewald does not challenge on appeal the motion judge's decision on several of his claims.

      Biewald never secured a guaranteed contract or qualified for a commission under section 3.4.1, but he did qualify for commissions under section 3.4 on over forty occasions.

      Given the de novo nature of our review, we need not address Biewald's claim that the trial judge based her ambiguity determination, in part, on language that does not appear in the employment agreement.

      While the defendants suggest otherwise, there is a reasonable argument that the EMC contract was a "contract for the services, licenses, and/or products -- for internal use, distribution or for resale -- of [Seven Ten] products/services."

      Contrary to Biewald's assertion, the defendants adequately relied on the language of sections 2 and 3.4 of the employment agreement when they moved for a directed verdict. The argument, therefore, was not waived.

      Instead, Biewald merely notes that the jury obviously agreed with his interpretation. He further argues that the jury were entitled to construe the employment agreement against Seven Ten as the drafter. See James B. Nutter & Co. v. Estate of Murphy, 478 Mass. 664, 669, 88 N.E.3d 1133 (2018). However, Biewald actually prepared the initial draft employment agreements, including the language that ended up forming the basis for section 3.4.


author: RUBIN, J.

text:
    COMMONWEALTH v. Peter CHONGA
    No. 17-P-512.
    Appeals Court of Massachusetts, Middlesex.
    Argued May 2, 2018 Decided November 1, 2018
    Nelson P. Lovins, Woburn, for the defendant.
    Elizabeth J. May, Assistant District Attorney, for the Commonwealth.
    Present: Rubin, Henry, & Desmond, JJ.
   RUBIN, J.

The defendant was convicted after a jury trial of stalking in violation of G. L. c. 265, § 43 (a ), and assault and battery in violation of G. L. c. 265, § 13A (a ). He now appeals.

Background. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), the jury could have found the following. The victim and defendant were married in Malawi and moved to Woburn together in the summer of 2009. Their relationship was initially "good" but then deteriorated. The defendant became, in the victim's words, "controlling" and frequently demanded to check the victim's cellular telephone (cell phone) and electronic mail messages (e-mails). The defendant also became physically "abusive." The victim testified that the defendant "tried to choke" her, using two hands and squeezing her neck, and threatened to kill her, something that, she testified, he threatened to do "all the time."

In September of 2010, the victim moved into her own apartment in Burlington. Although she did not tell the defendant where she had moved, he first showed up within one or two weeks and continued to go to her apartment about four times per month. She would let him in because "[i]t was embarrassing arguing outside when everybody's seeing you." When the defendant went in, he would check her e-mails and cell phone, and he would telephone her friends and accuse them of sleeping with her. The defendant also would telephone the victim "all the time" -- sometimes up to twenty times in a row and sometimes with blocked numbers -- asking her where she was, and he would follow her. Around April 1, 2011, the defendant entered the victim's apartment, pointed a knife at the victim's neck, and threatened to use it to kill both her and himself. One week later, the defendant again turned up at the victim's apartment uninvited. The victim, understandably not wanting him to be there, lied by stating that she had to go to work. When he discovered that this was a lie, he entered the victim's apartment, took her cell phone and the handset from the home telephone, threatened to kill her, and eventually hit her repeatedly with his boot. The victim managed to escape to a neighbor's house, but not before, by the defendant's own admission, he grabbed her arm while she was running out the door. After the victim escaped, her friend Patrick received calls from the victim's cell phone and home telephone numbers from a man he did not know who cursed at him and refused to tell him the victim's whereabouts. Patrick then called the police and drove to the victim's apartment.

Discussion. The defendant argues that the evidence was insufficient to support his conviction of stalking. The statute provides that "[w]hoever (1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury, shall be guilty of the crime of stalking ...." G. L. c. 265, § 43 (a ).

The defendant contends first that his repeated intimidating, threatening, and physically violent conduct directed at the victim was not "wilful" because it was not "intentional and by design." Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 443, 446 N.E.2d 117 (1983). The defendant argues that this conduct was "motivated by jealousy and anger." Contrary to the implication of his argument, this does not, even if true, indicate that the conduct was not intentional and by design, or that the defendant did not intend both the conduct and its harmful consequences.

Second, the defendant contends that his words did not constitute threats, because there was no evidence of a "fearful or apprehensive response." In making this argument, he relies on the statement in Commonwealth v. Chou, 433 Mass. 229, 234, 741 N.E.2d 17 (2001), that "language properly may be understood and treated as a threat even in the absence of an explicit statement of an intention to harm the victim as long as circumstances support the victim's fearful or apprehensive response."

To begin with, we note that the defendant neither requested nor received an instruction that the threat element of stalking required that the victim subjectively be put in fear or apprehension. Rather, the jury were instructed without objection that the threat element of stalking would be met by proof beyond a reasonable doubt that "the defendant also made a threat with the intention of placing the alleged victim in imminent fear of death or bodily injury." See Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (" 'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals"). On appeal, the defendant does not claim any error in that instruction, and the evidence was clearly sufficient to support the jury's finding on the elements of threat and intent.

In any event, the claim that there was no evidence of a fearful or apprehensive response is insubstantial. Assuming without deciding that the language in Chou means the definition of threat may include a requirement of subjective fear or apprehension, not just a statement that would objectively "justify" such a response, Commonwealth v. Ditsch, 19 Mass. App. Ct. 1005, 1005, 475 N.E.2d 1235 (1985), the jury readily could have found such a response here. The victim testified that, with respect to the incident in which the defendant, while pointing a knife at her neck, told her he would kill her, "[h]e scared [her]." Her friend Patrick likewise testified that immediately after that incident the victim sounded like "[s]omebody scared for her life."

The defendant also argues with respect to the assault and battery charge that the Commonwealth failed to prove the absence of justification beyond a reasonable doubt. One form of "assault and battery is 'the intentional and unjustified use of force upon the person of another, however slight.' " Commonwealth v. Burno, 396 Mass. 622, 625, 487 N.E.2d 1366 (1986), quoting Commonwealth v. McCan, 277 Mass. 199, 203, 178 N.E. 633 (1931). The jury could have found beyond a reasonable doubt with respect to the incident on April 8, 2011, that the defendant was having an argument with the victim, was upset with her, and, therefore, grabbed her arm as she was running out the door. (Indeed, they could have found that the defendant himself told this to an officer of the Burlington police department.) That is an intentional and unjustified use of force upon the person of the victim. The defendant's argument to the contrary -- that his action was justified because "a sudden non-violent grasp at a spouse during an argument must fall outside the crime of battery because of marital expectations of familiarity" -- has no support and is anathema to the modern law of the Commonwealth, which recognizes the fundamental humanity, and inviolable personal integrity, of all persons, regardless of gender, married, or single.

Judgments affirmed.

Order denying motion for new trial affirmed.

      The defendant was found not guilty of rape, attempted murder, assault by means of a dangerous weapon, witness intimidation, and a second count of assault and battery.

      The victim moved to the United States in or about January of 2008, working as an au pair for a family in Connecticut, and at her request, the defendant joined her in the United States in the summer of 2009.

      The jury acquitted the defendant of attempted murder with respect to the choking incident and of assault by means of a dangerous weapon with respect to the knife incident. Even if the jury had based its threat finding on one or both of these incidents, and not the boot incident (which would have been enough on its own, since the stalking statute requires only one threat), and even if doing so would have created an inconsistent verdict, which we do not decide, inconsistency of verdicts would not in these circumstances undermine the guilty verdict for the crime of stalking. See Commonwealth v. Elliffe, 47 Mass. App. Ct. 580, 584, 714 N.E.2d 835 (1999) ("[A] defendant is not entitled to relief where a jury returns factually inconsistent verdicts; problems arise only where verdicts are legally inconsistent -- i.e., where, removed from the factual context of the particular case, the government could not possibly have proved the elements of both crimes with respect to the defendant").


author: DITKOFF, J.

text:
    COMMONWEALTH v. Emmanuel LOUIS.
    No. 17-P-966
    Appeals Court of Massachusetts, Middlesex..
    Argued July 9, 2018 Decided November 6, 2018
    Alexandra H. Deal, Boston, for the defendant.
    Jamie M. Charles, Assistant District Attorney, for the Commonwealth.
    Present: Blake, Sacks, & Ditkoff, JJ.
   DITKOFF, J.

The defendant, Emmanuel Louis, appeals from his convictions following a jury-waived trial of armed assault with the intent to murder, G. L. c. 265, § 18 (b ) ; armed assault in a dwelling, G. L. c. 265, § 18A ; aggravated assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (c ) (i) ; and assault and battery by means of a dangerous weapon on a person sixty years or older, G. L. c. 265, § 15A (a ). We conclude that the evidence that the defendant swung his arm while holding a knife, knowing that the primary victim's mother was in close proximity, was sufficient to establish a reckless assault and battery on the mother. Further concluding that the trial judge could have rationally found that the defendant was armed at the time he entered the primary victim's house, we affirm.

1. Background. The defendant's wife was living in the victim's home in Waltham, and the victim had forbidden the defendant to come to the house. The defendant told his wife that he believed that the victim was "trying to destroy his relationship."

One morning, the defendant's wife and the victim saw the defendant outside the victim's house, in front of a sliding glass door. The defendant's hand was raised above his head in a fist, and he was apparently grasping an object. The defendant entered through the sliding glass door, tripped and fell to the floor, stood up, and then began stabbing the victim. Although the victim could not see what the defendant was holding, she testified that he used the object that was in his hand to stab her.

While the defendant was stabbing the victim, the victim's eighty-two year old mother attempted to intervene by grabbing the defendant's shoulder. In response, the defendant stepped away from the victim and swung his arm. The victim's mother suffered a deep cut to the palm of her hand. The defendant said, "Hey, Grandma, stay away," and fled. Both the victim and her mother required medical care and were brought to the hospital. The victim suffered thirty-one stab wounds and was hospitalized for ten days. The victim's mother required stitches to her hand.

After being arrested, the defendant "continuously mumbled about what did you expect me to do, she was trying to break up my family." The defendant later left a recorded message with his family in which he stated that he "just made an example out of" the victim, and that he "did it because [the victim] must never think that she could do that again."

2. Standard of review. "When reviewing the denial of a motion for a required finding of not guilty, 'we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133, 99 N.E.3d 821 (2018), quoting Commonwealth v. Oberle, 476 Mass. 539, 547, 69 N.E.3d 993 (2017). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable.' " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303, 58 N.E.3d 1070 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713, 1 N.E.3d 762, cert. denied, 573 U.S. 937, 134 S.Ct. 2855, 189 L.Ed.2d 818 (2014).

3. Assault and battery by means of a dangerous weapon on a person age sixty or older. "There are two theories of liability for assault and battery ... : 'intentional battery and reckless battery.' " Commonwealth v. Hamilton, 87 Mass. App. Ct. 274, 276, 28 N.E.3d 500 (2015), quoting Commonwealth v. Porro, 458 Mass. 526, 529, 939 N.E.2d 1157 (2010). Under the recklessness theory, "the Commonwealth must prove (1) that the defendant's 'conduct involve[d] a high degree of likelihood that substantial harm will result to another,' or that it 'constitute[d] ... a disregard of probable harmful consequences to another,' and (2) that, as a result of that conduct, the victim suffered some physical injury" (citations omitted). Hamilton, supra, quoting Commonwealth v. Welch, 16 Mass. App. Ct. 271, 275, 450 N.E.2d 1100 (1983). It is not necessary that the defendant intended to touch the victim, but "the act, itself, must be intentional, and its character wanton and reckless." Commonwealth v. Mistretta, 84 Mass. App. Ct. 906, 907, 995 N.E.2d 814 (2013). The injury "need not have been permanent, but it must have been more than transient and trifling." Hamilton, supra, quoting Commonwealth v. Burno, 396 Mass. 622, 627, 487 N.E.2d 1366 (1986). See Burno, supra (to meet recklessness standard, injury must "interfere[ ] with the health or comfort of the victim").

Here, sufficient evidence existed for the trial judge to find that both elements of a reckless battery on the victim's mother were proved. While the defendant was stabbing the victim, the victim's mother came up behind him and grabbed his shoulder. Despite knowing there was a person touching his shoulder, the defendant swung his arms, while still gripping the knife, creating a high degree of likelihood that substantial harm would be inflicted on anyone in close proximity. See Hamilton, 87 Mass. App. Ct. at 277, 28 N.E.3d 500, quoting Commonwealth v. Perry, 34 Mass. App. Ct. 127, 130, 607 N.E.2d 434 (1993) ("[T]hrusting a recently used hypodermic needle at [an officer] involved a high degree of likelihood that substantial harm would result to [the officer]"). Cf. Commonwealth v. Pease, 49 Mass. App. Ct. 539, 542, 731 N.E.2d 92 (2000) (defendant pushed victim with force, "creating the requisite level of risk of physical harm to sustain a conviction of manslaughter" under recklessness theory). The defendant's conduct involved a high degree of likelihood of substantial harm to the victim's mother.

The Commonwealth also presented sufficient evidence that the victim's mother's injury was more than transient and trifling. The victim's mother suffered a deep cut on the palm of her hand. As a result of her wound, the victim's mother was taken to the hospital and required stitches. The trial judge could reasonably conclude that being stabbed in the hand with enough force to draw blood and require stitches "interfered with the health or comfort" of the victim's mother. Hamilton, 87 Mass. App. Ct. at 276, 28 N.E.3d 500, quoting Burno, 396 Mass. at 627, 487 N.E.2d 1366. The victim's mother's injury, therefore, was neither transient nor trifling. Contrast Burno, supra at 623, 627, 487 N.E.2d 1366 (injury is considered "transient and trifling" where victim was "shaken" and his "wrist was sore and [he] held it for a 'few minutes' ").

We reject the defendant's theory that the evidence was insufficient to show that the defendant's knife was the cause of the mother's injuries. Although the victim's mother did not actually see the knife while she was being cut, she did see the defendant stabbing her daughter with the knife. She then was cut when the defendant, who was still attacking her daughter, swung his hand while she was in contact with him. The trial judge could reasonably infer that the knife remained in the defendant's hand and caused the victim's mother's injury. See Waller, 90 Mass. App. Ct. at 303, 58 N.E.3d 1070.

The case of Commonwealth v. Correia, 50 Mass. App. Ct. 455, 737 N.E.2d 1264 (2000), is instructive. There, the defendant, a prisoner, "was 'completely out of control' " and "was kicking his feet and flailing his arms." Id. at 458, 737 N.E.2d 1264. He kicked one of the correctional officers in the chest and stomach, sending the officer into a metal railing, and requiring hospital treatment for a sore back and a concussion. Id. We found that this was reckless conduct, despite the absence of "[p]roof of an intent to strike the officer." Id. Similarly here, the defendant's swinging his arm with a knife when he knew another person was in close proximity was enough to establish a reckless battery.

4. Armed assault in a dwelling. To sustain a conviction under G. L. c. 265, § 18A, the Commonwealth was required to prove that (1) the defendant "entered a dwelling that was not his own while armed with a dangerous weapon"; (2) he "assaulted another inside the dwelling"; and (3) "the assault was committed with the intent to commit a felony." Commonwealth v. Negron, 462 Mass. 102, 109, 967 N.E.2d 99 (2012). The defendant contests only the first element -- whether the defendant "was armed with a dangerous weapon at the time of entry into a dwelling house." Commonwealth v. Putnam, 75 Mass. App. Ct. 472, 481 n.9, 914 N.E.2d 969 (2009). See Commonwealth v. Ruiz, 426 Mass. 391, 393, 688 N.E.2d 963 (1998) (under G. L. c. 265, § 18A, Commonwealth must prove that defendant was armed at time of entry, not merely after entry).

The trial judge reasonably inferred that the defendant was armed at the time he entered the victim's house. See Waller, 90 Mass. App. Ct. at 303-304, 58 N.E.3d 1070 (judge was entitled to make inferences based on expert opinions and testimony, despite defendant positing conflicting theories of events). The victim testified that the defendant "lunged at the sliding door with [his] hand up." She stated that he was coming "[f]rom the outside" of the house and it "looked like he had something [in] his hand." Upon entering the house, the defendant tripped but then immediately got up and began stabbing the victim with "whatever was in his hand." Moreover, the victim's mother testified that she saw the defendant "on top of [her daughter] ... stabbing her with a knife." It was reasonable for the trial judge to infer that the knife the defendant used to stab the victim was the same object the victim saw in the defendant's hand as he entered her house, rather than (as the defendant suggests) an object he picked up after falling to the floor upon entering the house. See Woods, 466 Mass. at 713, 1 N.E.3d 762, quoting Commonwealth v. Martino, 412 Mass. 267, 272, 588 N.E.2d 651 (1992) ("Where conflicting inferences are possible from the evidence, 'it is for the [fact finder] to determine where the truth lies' ").

The Commonwealth also presented evidence that the defendant blamed the victim for "trying to destroy his relationship." This was circumstantial evidence that the defendant had a motive to hurt the victim and that he would likely have come to the victim's home armed to accomplish his objective that the victim "must never think that she could do that again." See Commonwealth v. Barbosa, 477 Mass. 658, 666, 81 N.E.3d 293 (2017) (defendant's motive to kill victim supported finding that evidence was sufficient).

Moreover, after the incident, the defendant left a recorded message for his family, stating that he "just made an example out of the" the victim. The judge was entitled to infer that the defendant would have armed himself to carry out his intention of making an example out of the victim. See Commonwealth v. Bouley, 93 Mass. App. Ct. 709, 711-712, 107 N.E.3d 1246 (2018). The evidence was sufficient to establish that the defendant was armed with a knife when he entered the victim's house.

Judgments affirmed.

      Because we find sufficient evidence to support the conviction of assault and battery by means of a dangerous weapon under a recklessness theory, we need not consider whether there was sufficient evidence to support the conviction under a theory of intentional assault and battery. See Mistretta, 84 Mass. App. Ct. at 907, 995 N.E.2d 814.


text:
    Randy ROBY v. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION, Concord & others.
    16-P-1259
    Appeals Court of Massachusetts, Middlesex..
    Argued May 23, 2018. Decided November 7, 2018.
    Randy Roby, pro se.
    Sheryl F. Grant for the defendants.
    Present: Rubin, Maldonado, & Wendlandt, JJ.

      The deputy superintendent of classification and the grievance coordinator at Massachusetts Correctional Institution-Concord.

   MALDONADO, J.

The plaintiff, Randy Roby, is a convicted sex offender currently incarcerated in State prison. He argues that in order to enter a sex offender treatment program (SOTP or program) without losing his prison employment, ability to earn good time credits, and preferred housing, he was required to admit guilt to the sexual offenses of which he was convicted. A Superior Court judge granted the defendants' motion to dismiss. We affirm, concluding that Roby has waived all challenges, except his claims under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, which have been rendered moot by a change in the SOTP regulations.

Background. In December of 2015, Roby was housed at Massachusetts Correctional Institution-Concord (MCI-Concord), where he held a prison job, was earning good time credits, and enjoyed preferred housing. Prison officials asked Roby to participate in the SOTP. According to Roby, entry into the program was predicated upon his signing a treatment agreement and waiver form (treatment form) admitting guilt to the sexual offenses of which he stood convicted. Because such an admission would undermine his pending State and Federal challenges to the convictions, he refused to sign the treatment form and declined participation in the SOTP. Roby claims that because he refused to participate in the SOTP, prison officials took away his prison employment and ability to earn good time credits, and moved him to more restrictive housing.

Roby filed an inmate grievance, which was denied. Roby then appealed from the denial to the superintendent of MCI-Concord, who denied his appeal. Thereafter, Roby filed the complaint at issue here in the Superior Court.

In his complaint, Roby alleged violations of various Department of Correction (department) regulations, and a violation of his Federal and State constitutional rights against self-incrimination. The defendants moved to dismiss and the judge granted their motion. This appeal by Roby followed.

Discussion. 1. Waived claims. On appeal, Roby makes only passing references to the department regulations that formed the basis of his complaint. Instead, he argues that the defendants violated various statutes, as well his Fifth Amendment and art. 12 rights. He also did not include a copy of the complaint or motion to dismiss in his record appendix.

"Although the plaintiff[ ] ha[s] been acting pro se, [he is] held to the same standards as litigants who are represented by counsel." Davis v. Tabachnick, 425 Mass. 1010, 680 N.E.2d 1171, cert. denied, 522 U.S. 982, 118 S.Ct. 443, 139 L.Ed.2d 380 (1997). Further, "it is the appellant's responsibility to ensure that the record is adequate for appellate review." Commonwealth v. Woody, 429 Mass. 95, 97, 706 N.E.2d 643 (1999). Generally, his failure to do so is fatal to his appeal. See Chokel v. Genzyme Corp., 449 Mass. 272, 280, 867 N.E.2d 325 (2007) ("because the first request to amend does not appear in the record appendix, we do not review the propriety of its denial"); Mass. R. A. P. 18 (a), as amended 425 Mass. 1602 (1997).

Here, however, review has been made possible by the defendants, who have appended in their filings copies of the complaint and the motion to dismiss. These documents reveal that, with the exception of Roby's Fifth Amendment and art. 12 claims, Roby did not raise below the arguments he makes on appeal. Accordingly, these claims are waived and not subject to our review. See NES Rentals v. Maine Drilling & Blasting, Inc., 465 Mass. 856, 860 n.8, 992 N.E.2d 291 (2013). We turn, therefore, to Roby's only remaining challenge.

2. Fifth Amendment and art. 12 claims. The Fifth Amendment and art. 12 protect one from being compelled "to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Commonwealth v. Hunt, 462 Mass. 807, 811, 971 N.E.2d 768 (2012), quoting Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). Roby asserts that the defendants' requirement that he admit guilt in order to gain entry into the SOTP or risk of losing employment, good time credits, and preferred housing violates this fundamental right. However, the governing department regulation in place at the time of Roby's refusal to participate in the program no longer requires the admission of guilt. We accept the defendants' representation that Roby will be given the opportunity to enter the program by signing a treatment form that will not require him to admit guilt and, further, that his lost housing and employment privileges will be restored if he decides to participate in the program. Therefore, Roby's claim has been rendered moot and we need not reach its merits. See American Dog Owners Assn. v. Lynn, 404 Mass. 73, 78, 533 N.E.2d 642 (1989) (case moot once challenged ordinance abrogated).

Concluding that Roby's Fifth Amendment and art. 12 challenges have been rendered moot and all his other claims have been waived, we discern no error.

Judgment affirmed.

The plaintiff prisoner alleges a violation of his right against self-incrimination under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.

The Department of Correction (department) since at least 1994 has maintained a policy designed to encourage sex offenders to participate in a sex offender treatment program (SOTP or program). The policy does not formally mandate participation. But, until recently, an incarcerated sex offender could not "move beyond medium security without successfully completing" SOTP (citation omitted). Lyman v. Commissioner of Correction, 46 Mass. App. Ct. 202, 204, 704 N.E.2d 1195 (1999). Participation required the offender to sign a treatment agreement and waiver form (agreement form) that included language stating, "I understand that, in order, to participate in treatment, I must admit to the commission of my crime." In addition the relevant regulation stated, "Program failures shall include those inmates who refuse to participate or minimize with regard to their offense(s), and also those inmates who remain in denial of the offense(s)" (citation omitted). Id. at 205 n.5, 704 N.E.2d 1195.

In Lyman, we held that limiting the inmate's ability to move to a less secure environment did not violate the Federal or State constitutional protections against compelled self-incrimination, but we noted that "[t]here is a crucial distinction between being deprived of a liberty one has ... and being denied a conditional liberty that one [merely] desires." Id. at 206, 704 N.E.2d 1195, quoting Greenholtz v. Inmates of the Neb. Penal & Correctional Complex, 442 U.S. 1, 9, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The inmate in Lyman had only been denied the "expectation of residency in a particular prison" that he had "not yet enjoyed," Lyman, supra, and we therefore did not address whether denying him residency that he had already been enjoying would have violated his constitutional rights. Id. at 205-206, 704 N.E.2d 1195.

In April of 2015, the department apparently modified the program. Now, its regulations state that "sex offenders who refuse to participate in the SOTP may be subject to loss of job, housing and seniority." 103 DOC § 446.04(7) (2015). The agreement form also has been modified to remove the language about admitting one's crime. It retains the following language: "I give my designated sex offender therapist permission to share information concerning my progress in treatment and other pertinent evaluative information with the ... Attorney General, the District Attorneys, ... and any other law enforcement agencies ...." The language about minimization or denial of the offense also appears to have been removed.

Here, the plaintiff has refused to participate in the SOTP, claiming that it is not voluntary, and that it will require him to incriminate himself in violation of the State and Federal Constitutions. He alleges that his refusal to participate has led to a loss of housing, loss of a job through which he was earning good time credits, loss of the ability to have a range of property in his cell, and loss of seniority.

If a prisoner were forced to admit guilt that could subject him to future prosecution, for example, for perjury or any other offense to which he is forced to confess, on pain of these penalties, it would raise a substantial question under the State and Federal Constitutions because the penalties now include deprivations of things the prisoner has, rather than deprivation of something the prisoner merely desires. Article 12 is more protective of the right against self-incrimination than the Fifth Amendment, see Commonwealth v. Gelfgatt, 468 Mass. 512, 525, 11 N.E.3d 605 (2014), and under the former provision the modified program might well be found to compel self-incrimination. See McKune v. Lile, 536 U.S. 24, 62-69, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (Stevens, J., dissenting) (prisoner's loss of housing in less secure status for failure to participate in "Sexual Abuse Treatment Program" that required admission of guilt is coercive and violates Fifth Amendment). Indeed, the threat of loss of a job through which one is earning good time credits might well be found coercive even under the weaker protections against self-incrimination contained in the latter provision: Justice O'Connor's controlling opinion in McKune noted that the threat of "longer incarceration" would be coercive. Id. at 52, 122 S.Ct. 2017 (O'Connor, J., concurring in the judgment).

In this case, though, the only identifiable way in which the plaintiff asserted in his complaint that he must incriminate himself is by being "forced to sign a paper admitting guilt by participating in the program." The defendants represent that "[p]resently, inmates participating in the SOTP within [the department] are no longer even required to admit guilt to the crimes as a condition of entering the program," and at oral argument counsel represented that what the plaintiff has lost, housing, his job through which he may continue to earn good time credits, the ability to have a range of property in his cell, and his seniority, will be restored if he decides to sign the new agreement form that does not include an admission of guilt and enter the SOTP. Given that the agreement form no longer requires an admission of guilt, and in light of the defendants' representation, I join the majority's opinion in full.

However, I write separately to note that if, in fact, notwithstanding the change in the agreement form, either participation in SOTP, or a determination that one has "refused to participate," can be based on a failure during the program to admit guilt of crimes, the new regulations would present a substantial claim worthy of judicial consideration.

      Roby's convictions were affirmed on direct review by the Supreme Judicial Court. Commonwealth v. Roby, 462 Mass. 398, 969 N.E.2d 142 (2012). This court subsequently affirmed an order denying his motion to vacate his convictions. Commonwealth v. Roby, 87 Mass. App. Ct. 1136, 33 N.E.3d 1268 (2015).

      Prior to April of 2015, a participant in the SOTP was required to sign a treatment form "that contain[ed] an admission that he is a sex offender." Lyman v. Commissioner of Correction, 46 Mass. App. Ct. 202, 204, 704 N.E.2d 1195 (1999). The defendants in this case represented in their brief and at oral argument that the treatment form no longer requires such an admission. See Butler v. Turco, 93 Mass. App. Ct. 80, 87 n.13, 99 N.E.3d 341 (2018) ("We note further that in April, 2015, the department revised its policy to provide that inmates are no longer required to admit guilt as a condition of participating in the SOTP").

      Such a claim would not be foreclosed by the dictum in Butler v. Turco, 93 Mass. App. Ct. 80, 87 n.13, 99 N.E.3d 341 (2018), in which a review of the briefs reveals the plaintiff did not raise or even mention before us a self-incrimination claim under either the State or Federal Constitution. See brief of the Commonwealth at 18 in Butler, supra ("Plaintiff has waived several claims, including his ... Fifth Amendment ... claim[ ], by failing to properly address [it] in his brief").