text:
    Claudia MURROW v. Kevin EMERY & another.
    17-P-1131
    Appeals Court of Massachusetts.
    Entered: July 13, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Zoning board of appeals of Somerville

   Claudia Murrow appeals from a judgment entered by a judge of the Land Court dismissing her complaint on the ground that Murrow lacks standing to contest the special permit issued by the defendant zoning board of appeals of Somerville (board) to the defendant Kevin Emery. Substantially for the reasons stated by the judge in both his summary judgment decision and trial decision, we affirm.

The findings of fact are not challenged on appeal as clearly erroneous, except for one issue discussed infra. Emery proposes to demolish an existing single-family home and replace it with a four-unit (each unit to contain two bedrooms) structure on the locus, 10 Allen Court, Somerville. Three-unit buildings are allowed as of right in the commercial (BA) zoning district in which Emery's property is located, but structures with four to six units are allowed only by special permit. The neighborhood contains a variety of multifamily housing and business uses, consistent with the purpose of the BA zoning district.

Allen Court is a short, narrow, dead-end private road. The width of Allen Court is approximately fourteen feet at its intersection with Park Street and then widens to approximately twenty feet. Conway Park, owned by the city of Somerville (city), abuts the locus to the west. Access to the locus is by Park Street to Allen Court from which residents will access the locus's twenty by sixty-eight foot driveway.

Emery proposes four garaged parking spaces and two parking spaces in the driveway. The driveway is proposed to be located along the east side of the structure in accommodation to the owners of the property across the street who did not want to have cars pass in front of their property to reach the locus's driveway. The proposed structure complies with all zoning requirements including frontage, lot size, ground coverage, floor area ratio, landscaping, parking, height, and setback requirements, and requires no zoning variances.

Murrow owns and resides in one unit of a five-unit condominium building located at 23 Park Street. Murrow's building is north of 7-9 Allen Court and 27 Park Street, both of which are across the street from the locus. The judge found that Murrow is an abutter to an abutter of the locus and that her building is approximately eighty-three feet from the locus. No windows in Murrow's condominium unit face the locus. She accesses her off-street parking space located in front of her building from Park Street between Allen Court and Somerville Avenue. She does not travel on Allen Court to reach her building. The judge found at the summary judgment stage that the area around the locus is densely developed, though it is not clear that the area is denser than the current city ordinance allows.

Murrow raised a number of issues challenging the approval of the special permit for the locus, but after rulings on summary judgment and directed verdict motions, the only issues remaining at the end of trial were whether Murrow had standing to assert traffic and fire-safety concerns and, if so, whether the board properly issued the special permit to Emery. The judge conducted a trial on those remaining issues and took a view. He concluded that Murrow's concerns were insufficient to confer standing on her. We agree.

Discussion. "By enacting a by-law that allows a use as matter of right, the inhabitants of a town have previously resolved, in a legislative sense, considerations of comfort, health, safety, and traffic." Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664, 667 (1999). Uses permitted by special permit, on the other hand, are deemed by a zoning ordinance to be potentially acceptable in a zoning district, but only after the review and approval of a permit granting authority, to ensure compatibility with the allowed uses in the area. See ibid. Here, the proposed use required a special permit and thus lies in that intermediate area between uses that are considered so acceptable that no scrutiny is required and uses that are prohibited outright. See Somerville Zoning Ordinance § 5.1.2.

Only "person[s] aggrieved" have standing to challenge a board's decision to grant a special permit. G. L. c. 40A, § 17. Certain owners of nearby property generally enjoy a rebuttable presumption of standing. See Watros v. Greater Lynn Mental Health & Retardation Assn., Inc., 421 Mass. 106, 110-111 (1995). Here, the judge found and Murrow tacitly concedes that any presumption of standing arising from her status as an abutter to an abutter within three hundred feet was negated by evidence introduced by Emery. See Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570, 573 (2016). As a result, Murrow had to "prove standing by putting forth credible evidence to substantiate the allegations. The plaintiff must establish -- by direct facts and not by speculative personal opinion -- that [her] injury is special and different from the concerns of the rest of the community. At that juncture, the jurisdictional issue of standing will be decided on the basis of all the evidence, with no benefit to the plaintiff from the presumption of aggrievement.... Standing essentially becomes a question of fact for the judge." Id. at 573-574 (citations and quotation omitted). Murrow was required to "show that the zoning relief granted adversely affected [her] directly and that [her] injury is related to a cognizable interest protected by the applicable zoning law." Dwyer v. Gallo, 73 Mass. App. Ct. 292, 295 (2008). See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 120 (2011).

While the term "person aggrieved" is not to be interpreted narrowly, Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81, 93 (2007), in order to have standing to appeal from the board's grant of a special permit, Murrow must demonstrate "more than minimal or slightly appreciable harm." Kenner, 459 Mass. at 121. "The adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy." Id. at 122. The Supreme Judicial Court has explained that to establish standing, it is not enough for a plaintiff to simply identify an interest protected by the by-law; the plaintiff "must put forth credible evidence to substantiate claims of injury" to that legal interest. Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539, 543 (2008), quoting from Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 723 (1996). "A trial judge's findings of aggrieved person status will not be reversed unless clearly erroneous." Dwyer, 73 Mass. App. Ct. at 295, quoting from Wells v. Zoning Bd. of Appeals of Billerica, 68 Mass. App. Ct. 726, 731 (2007).

Undue concentration of population. Murrow first argues that the judge erred in failing to recognize her standing because she has an interest in "avoid[ing] undue concentration of population," pursuant to § 1.2 of the general purpose section of Somerville's zoning ordinance. She contends that because the number of units in the proposed structure exceeds the number of units permitted as of right in the zoning district, she has standing to challenge the special permit -- separate and apart from any interest she might have in avoiding traffic congestion or impaired fire safety caused by the proposed structure. She obliquely argues that she raised the "overcrowded population" issue at the summary judgment stage and the judge erroneously rejected it.

At the summary judgment stage, the judge noted Murrow's claims of overcrowding arising from the approved special permit and concluded that Murrow must prove harm from related overcrowding that is (1) not de minimis and (2) particularized to her. The judge noted that "[t]he existence of current overcrowding simply makes it easier for a plaintiff to establish standing based on overcrowding and density concerns" but does not in and of itself confer standing on a plaintiff to challenge any development. The judge then considered the various ways Murrow contended she was injured by a rise in population, including traffic convenience, loss of privacy from trespassers -- both human and pets, increase in noise, enhanced danger from fire, unspecified safety hazards, increased wind, vibration, diminution of property value, and discouragement of housing for persons of all income levels. The judge found that there was a disputed question of fact only on traffic impacts, access for fire and emergency vehicles, noise, and property value, and granted summary judgment to the defendants on the other issues raised.

Murrow had to show that the increase in population would injure her directly. "The language of a bylaw cannot be sufficient in itself to confer standing: the creation of a protected interest (by statute, ordinance, bylaw, or otherwise) cannot be conflated with the additional, individualized requirements that establish standing." Sweenie, 451 Mass. at 545. To have standing, Murrow must demonstrate how her legal interests will be harmed. See id. at 545-546. She must rely on "specific facts to establish perceptible harm." Marashlian, 421 Mass. at 724. On appeal, Murrow does not articulate how many people are likely to reside in the proposed structure and makes no effort to connect the addition of a small number of people to the neighborhood to an injury she will suffer directly.

It is true that we have recognized abutters' "legal interest in 'preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulations allow.' " Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8, 11-12 (2009), quoting from Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 31 (2006). See Bertrand v. Board of Appeals of Bourne, 58 Mass. App. Ct. 912, 912 (2003) ; Dwyer, 73 Mass. App. Ct. at 295-296. In those cases, however, the plaintiffs were direct abutters and their standing derived from demonstrated incremental impact on identified harms such as noise, decreased privacy, decreased light, and increased artificial light arising from approved construction, which violated the density provisions applicable to the abutting property. See Sheppard, 74 Mass. App. Ct. at 12-13, and cases cited. In other words, it was not enough for a standing analysis to simply say that the density provisions were violated. Similarly, here, it is not enough that the zoning ordinance identifies an interest in preventing undue concentration of population. At least in an urban commercial district where both businesses and housing are allowed and encouraged, it is not sufficient for Murrow to point to a small increase in population stemming from four units of two-bedroom housing to support a contention that the proposed development will result in an "undue concentration of population" and harm her.

Murrow is an abutter to the property across the street from the locus. Her property fronts on a different street than the locus. Her vehicular access is on a different street. The impact of the special permit on Murrow's property are not readily apparent. Murrow's contention that the impact on her is different from the rest of the community because she lives eighty-three feet away is speculative at best.

Fire safety. Although Murrow and other neighbors testified that a fire engine would not be able to traverse Allen Court, the judge heard testimony from the deputy chief of the Somerville fire department, who testified that he had no concerns from a fire safety standpoint. He testified that the proposed development complies with the fire code and will have fire alarms and sprinkler systems in place. He further testified that Allen Court is wide enough to accommodate a fire truck, but not if cars are parked on both sides of it. If vehicles block access to Allen Court, fire trucks would stop on Park Street and the location of fire hydrants and the length of the fire department's hoses would allow sufficient access to the locus. The judge found the deputy fire chief's testimony to be substantiated and persuasive and, in contrast, found Murrow's concerns to be speculative. "[I]t is the trial judge who, by virtue of his firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence." Picard, 474 Mass. at 575, quoting from New England Canteen Serv. v. Ashley, 372 Mass. 671, 675 (1977). We note, too, that here, the judge had the additional advantage of having viewed the area.

Traffic. The judge made extensive findings on the testimony on the issue of traffic, reviewing at length the testimony of Emery's expert, Murrow, and neighbors who testified on Murrow's behalf. The judge found that "[t]here is no dispute that there is heavy traffic in this area of Park Street leading up to Somerville Avenue, and in the opposite direction towards the [Massachusetts Bay Transportation Authority] MBTA train tracks and Beacon Street, during weekday peak rush hours." The judge credited expert testimony, however, that the proposed project would add only one car in the morning and evening rush hours as compared to the existing conditions. While Murrow contends that the addition of one car is enough to be problematic, the judge noted that she offered no expert or other evidence suggesting that existing conditions simply cannot tolerate even one additional car. We agree with the judge's conclusion, therefore, that Murrow's concerns about traffic impacts are too speculative to grant her standing.

Murrow points to a single finding of the judge that she contends was clearly erroneous. The judge identified a lengthy queue of cars on Park Street from Somerville Avenue back towards the MBTA station and Beacon Street during morning rush hour but later found that there were never more than four vehicles in queue on Park Street. There was testimony that when there is a train crossing on Park Street near Allen Court, it takes thirty seconds for the train to pass, there are never more than four cars in a resulting queue, and there was no impediment to cars traveling into or out of Allen Court even, apparently, when the train was going by. Indeed, the judge found that the queue on Park Street is never more than four cars, but failed to explain that this related only to the area of the train crossing. However, his other findings leave no doubt that the judge well understood that Park Street is very busy during rush hours, and that there is a long line of cars that impedes Murrow's access to her parking space and creates difficult access to main roads. The judge's conclusion that the addition of one car to the current traffic conditions will produce a negligible impact on traffic on Park Street, however, is warranted by the weight of the evidence. The judge's misstatement does not negate the rest of his forty-five page, careful, detailed, and thoughtful decision. ,

Judgment affirmed.

      The docket does not reflect that a judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), was entered following the summary judgment decision.

      The purpose of the BA commercial district is to "preserve business areas bordering main thoroughfares that are attractive to a wide range of uses, including retail business and services, housing, government, professional and medical offices, and places of amusement. While it is anticipated that most users will arrive by motor vehicle, it is intended that the area should be safe for and conducive to pedestrian traffic." Somerville Zoning Ordinance § 6.1.6(1).

      Dwellings with seven or more units are allowed by special permit with site plan review.

      The lot size of the locus is 4,942 square feet. There is no minimum lot size in the zoning district.

      We note that this court recently issued a decision, Murrow v. Esh Circus Arts, LLC, 93 Mass. App. Ct. 233 (2018) (Murrow I ), in which we affirmed a Land Court judge's determination that Murrow did not have standing to appeal from the board's approval of a modification of a special permit for a property located down the street from her. Many of Murrow's claims in this case were raised and rejected in Murrow I. Of course, Murrow did not have the benefit of that opinion when she brought these claims.

      Because we conclude that Murrow does not have standing, we need not reach the additional issues she raised on appeal.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Lawrence J. BRADLEY.
    16-P-1226
    Appeals Court of Massachusetts.
    Entered: July 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant, Lawrence J. Bradley, was convicted of operating a motor vehicle while under the influence of alcohol (OUI). In a separate proceeding after the jury trial, the judge found the defendant guilty of committing a second offense OUI. On appeal, the defendant claims that the judge erred in denying his request to instruct the jurors on the absence of breathalyzer evidence. We affirm.

It is well settled in Massachusetts that evidence pertaining to the refusal to consent to breathalyzer testing is inadmissible in a criminal proceeding because such evidence is "testimonial in nature and ... its admission violates the privilege against self-incrimination under the Declaration of Rights of the Massachusetts Constitution." Commonwealth v. Ranieri, 65 Mass. App. Ct. 366, 371 (2006). Because, however, breathalyzer testing is within the jury's common knowledge, a limiting instruction that makes "no mention either of a defendant's legal right to refuse to take the breathalyzer or the possible reasons for any refusal" does not violate the defendant's right against self-incrimination. Commonwealth v. Downs, 53 Mass. App. Ct. 195, 199-200 (2001).

During the charge conference, the defendant requested that the jury be instructed pursuant to Downs that they were not to consider any absence of breathalyzer evidence. The judge declined to give such an instruction after explaining that she generally gives a Downs instruction only in response to a note from the jury inquiring about a breathalyzer. The defense counsel did not object, but, rather, stated, "Okay." In stating "Okay," defense counsel acquiesced in the judge's approach, giving no indication of being dissatisfied with proceeding in the suggested manner. See Commonwealth v. Vallejo, 455 Mass. 72, 76-77, 81 n.9 (2009). Accordingly, the issue is waived, and we review the instructions only to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005).

Passing on whether the judge erred in failing to provide the jury with the Downs instruction as requested by the defendant, if there was error, it was not significant enough for the outcome to be different. See Commonwealth v. Kelly, 470 Mass. 682, 697 (2015). The Commonwealth presented strong evidence of the defendant's intoxication based on the observations of the arresting officer, who testified to the defendant's slurred speech, consistent odor of alcohol, difficulty responding to basic requests, inability to perform field sobriety tests, and admission that he had "been drinking earlier." Moreover, the jury were explicitly instructed not to speculate, and no evidence was adduced concerning breathalyzer or blood alcohol testing that would have directed the jury's attention to the absence of such evidence. On this record, we have no doubt that the jury would have reached the same result even if the Downs instruction had been given.

Judgment affirmed.

      The defendant also initially argued on appeal that the judge's failure to conduct a colloquy to determine whether the defendant knowingly, intelligently, and voluntarily waived his right to a jury at the subsequent offender trial was an error that created a substantial risk of a miscarriage of justice. This argument was based on the lack of such a colloquy in the transcriptions of those proceedings. Subsequently, recordings of the defendant's colloquy with the judge were obtained that were not a part of the original transcripts. Thereafter, the defendant filed a motion to withdraw this argument, which was assented to by the Commonwealth. At oral argument, the parties again agreed to withdraw this issue from consideration.

      In Commonwealth v. Wolfe, 478 Mass. 142 (2017), the Supreme Judicial Court announced a new prospective rule that judges should generally "refrain from giving a Downs-type instruction absent a request by the defendant or some rare set of facts that specifically directs the jury's attention to the absence of alcohol-test evidence." Id. at 150. We need not decide whether the holding in Wolfe is applicable here in order to resolve the issues in this appeal.


text:
    Stephen E. RANIERI v. Derek F. GLACKEN & another.
    17-P-1114
    Appeals Court of Massachusetts.
    Entered: July 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      William R. Paulsen, third-party defendant.

   This factually complicated case involves multiple alleged acts of legal malpractice committed by two attorneys, Stephen E. Ranieri and Charles M. MacLean. In the misappropriation action, Ranieri represented Derek F. Glacken and MacLean represented William R. Paulsen. After Ranieri initiated a collection action against Glacken, Glacken filed a third-party complaint seeking damages for Paulsen's breach of a November, 2008, assignment agreement. Following the bifurcation of the complaints, different judges of the Superior Court heard the trials jury waived. In the principal action, the first judge rejected Ranieri's entire case-in-chief and found in favor of Glacken on one of his counterclaims. He declared that Ranieri was entitled to recover one-third of the dollar amount collected as his contingency fee, plus court costs and expenses. Glacken appealed.

In the subsequent third-party action, a second judge concluded that Paulsen had breached the November, 2008, assignment agreement by not assigning to Glacken either his malpractice claim or the 2011 default judgment that he had obtained against MacLean. The second judge rejected Paulsen's economic duress defense, found no unjust enrichment of Glacken, and awarded damages. Paulsen appealed.

The case is before us as a cross appeal. We affirm.

1. Glacken's appeal. Glacken contends that the first judge erred in dismissing his counterclaims for legal malpractice against Ranieri. He contends that it was error to conclude that expert testimony was required to prove Glacken's claims and that it was error to refuse to qualify his proposed expert. We disagree. Generally, expert testimony is required to establish that an attorney's conduct fell below the standard of care. See Pongonis v. Saab, 396 Mass. 1005, 1005 (1985). Here, Ranieri's conduct was not so gross and obvious as to fall within the exception to the need for expert testimony. Contrast Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 500-501 (2010) (no expert testimony required where attorneys failed to file timely notice of appeal in underlying action and there was no basis for claim of excusable neglect for late filing). Indeed, Glacken agreed that one of his theories -- Ranieri's improperly bidding the full amount of the execution at the sheriff's sale -- "possibly" required expert testimony. The first judge's subsidiary findings amply supported his ultimate finding that expert testimony was required. See Goddard v. Goucher, 89 Mass. App. Ct. 41, 48 (2016). There was no error.

Glacken has also failed to demonstrate an abuse of discretion or error of law in the exclusion of the testimony of his proposed expert witness, Kurt Olson. See Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 406 (2013). The first judge was warranted in concluding that Olson, a general practitioner and an associate professor at the Massachusetts School of Law, was not qualified to give the proposed testimony. See Commonwealth v. Frangipane, 433 Mass. 527, 533 (2001).

2. Paulsen's appeal. Paulsen contends that the November, 2008, assignment agreement was not binding upon him. We disagree. Both judges found that the three-page handwritten document constituted one valid and enforceable contract between Glacken and Paulsen. Paulsen and Glacken offered very different testimony about the parties' intentions and the terms of the agreement. Ultimately, the second judge credited the testimony of Glacken and Ranieri and rejected that of Paulsen. It was solely within the purview of the second judge to assess credibility and to resolve this conflict in the evidence. See Bonina v. Sheppard, 91 Mass. App. Ct. 622, 630 n.10 (2017). Moreover, Glacken's and Ranieri's testimony was consistent with the documentary evidence. As a result, we cannot say that the second judge's finding that the agreement constituted one valid contract enforceable against Paulsen was clearly erroneous. See Balles v. Babcock Power, Inc., 476 Mass. 565, 572 n.14 (2017).

Contrary to Paulsen's argument, Glacken established all of the elements of a breach of contract claim. See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 690 (2016). In light of the agreement between the parties, the second judge was warranted in finding that Paulsen breached it by bringing an independent malpractice action against MacLean and by refusing to assign the judgment and execution to Glacken. The second judge was also warranted in finding the existence of valid consideration. It is not within the province of this panel to assess the adequacy of the consideration. See Sewall-Marshal Condominium Assn. v. 131 Sewall Ave. Condominium Assn., 89 Mass. App. Ct. 130, 134 (2016). And, where the contract sued on was the November, 2008, assignment agreement, the full satisfaction of the judgment and execution in the misappropriation case did not preclude the second judge from finding and assessing damages in the third-party case.

After a thorough review of the record, we also conclude that Paulsen has failed to demonstrate error in the second judge's rejection of his contract defenses. ,

Accordingly, the judgments dated October 1, 2015, and April 5, 2016, are affirmed.

So ordered.

Affirmed.

      Paulsen did not appeal from the order denying his motion for relief from judgment and, thus, no aspect of that ruling is before us. By order of this court, Glacken was deemed the appellant for briefing purposes, and Ranieri and Paulsen were designated appellees. Ranieri elected not to participate in this appeal.

      The first judge was warranted in finding that the malpractice claim also failed for lack of proof of damages and causation. See Global NAPs, Inc. v. Awiszus, 457 Mass. at 500.

      The second judge, who tried the third-party action, made the following findings relevant to the contractual agreement. On November 19, 2008, the eve of a scheduled sheriff's sale on November 20 of Paulsen's home, MacLean showed up distraught and uninvited to the home of Ranieri. MacLean admitted that his negligence had led to the default judgment and the levy of execution in the misappropriation action. Ranieri accepted MacLean's offer to pay $7,000 and to assign Paulsen's malpractice claim against him (MacLean) to Glacken in consideration of a sixty-day delay in the sale. Later that same evening, MacLean obtained a one-page document executed by Paulsen in which Paulsen agreed to assign to Glacken "any and all legal malpractice claims" he had against MacLean and to provide "any and all assistance necessary to process and collect the claim for damages." As part of the agreement, MacLean promised to put his insurer, Zurich North America/American Guarantee & Liability Insurance Company, on notice of the malpractice claim as soon as possible. On November 20, 2008, MacLean and Ranieri signed a two-page, handwritten agreement drafted by MacLean memorializing the terms of the agreement. MacLean also provided Ranieri with Paulsen's assignment at that time.

      The second judge found that Paulsen received what he had bargained for and more. By obtaining a sixty-day postponement of the sale, he prevented the immediate eviction of his family. Thereafter, he continued to reside in the home well past the sixty days, occupying the residence for twenty-one months after the sheriff's sale without paying rent or use and occupancy fees.

      Any issues, arguments, and defenses raised for the first time on appeal are not properly before us, and are deemed waived. See Cariglia v. Bar Counsel, 442 Mass. 372, 379 (2004). All remaining issues have been considered and deemed either inadequately argued or unpersuasive. See Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011).

      We deny Paulsen's request for appellate attorney's fees.


text:
    COMMONWEALTH v. Curtis SULLIVAN.
    17-P-1281
    Appeals Court of Massachusetts.
    Entered: July 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant, Curtis Sullivan, was convicted of two counts of possession of a firearm without a license, two counts of carrying a loaded firearm, one count of unlawful possession of ammunition, and one count of negligent operation of a motor vehicle. The defendant then pleaded guilty on the subsequent offense portions of the two indictments charging possession of a firearm. The defendant argues on appeal that (1) the trial judge erred in denying his motions for required findings of not guilty on the firearms charges, and (2) trial counsel was ineffective. We affirm.

Background. We summarize the facts as the jury could have found them. On the evening of September 26, 2012, David MacMillan was walking his dog on Fort Avenue, a street adjacent to Highland Park in Roxbury, when he noticed a green Lexus automobile idling near the park on the opposite side of the street from where cars normally parked. He took note of the license plate, 979KY9. A few minutes later MacMillan heard four to five gunshots coming from the park. As he was calling 911, he saw four young black men jog from the park, enter the Lexus, and drive away.

Boston police Officers Brian Johnson, Janet Lewis, and Mathew Wosny were standing nearby when they heard gunshots. After learning from dispatch that a "shot spotter" device went off at 6 Fort Avenue Terrace, they began to drive towards that location in an unmarked police cruiser. While driving on Cedar Street, the officers noticed a green Lexus approaching; they recognized it because they had stopped the vehicle five days earlier. The officers made a U-turn to follow the Lexus. The Lexus accelerated down Cedar Street and did not stop at a red light, instead turning right onto Washington Street. The officers activated their cruiser's lights and sirens to signal the driver of the Lexus to stop. Instead, the driver turned left onto Dale Street and sped up. The Lexus next turned left onto Regent Street and the officers lost sight of the vehicle, but regained it as the Lexus traveled up Regent Street, turned right onto Circuit Street, and pulled over.

When the officers approached the Lexus, the defendant was seated in the driver's seat with the front driver's side window down. The front passenger window also was rolled down; both rear windows were up. The officers removed the four occupants from the car, and while doing so received radio transmissions that a witness from the scene of the shooting had seen four men "jump" into a green Lexus with a particular license plate and drive towards Cedar Street. The radioed license plate matched that of the Lexus the officers had stopped. The officers then searched the vehicle and found a bag containing .22 caliber ammunition in the front console.

Officers tracing the Lexus's path found two firearms. One firearm was a .22 caliber Llama, with one round of ammunition in the chamber and four additional rounds in a damaged magazine, located next to a car parked opposite 124 Regent Street. This firearm was found on the driver's side of the path driven by the defendant. The piece of the magazine that was broken off was found near the firearm. The officers also found a loaded .40 caliber Glock firearm, with one round of ammunition in the chamber and a magazine holding five additional rounds, on the lawn of 90 Regent Street. This firearm was on the passenger side of the path taken by the Lexus. The .40 caliber firearm was forensically matched to a reasonable degree of ballistic certainty to three shell casings found at the scene of the shooting in Highland Park.

Discussion. 1. Sufficiency of the evidence. The defendant moved for required findings of not guilty at the conclusion of the Commonwealth's case; the judge denied the motions. On appeal, the defendant argues that the evidence was insufficient to establish that he constructively possessed the two firearms.

In evaluating the sufficiency of evidence, we examine it to determine whether, viewing the evidence in the light most favorable to the Commonwealth, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). There must be evidence that the defendant had "knowledge coupled with the ability and intention to exercise dominion and control" over the firearms. Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004) (quotation omitted). Presence in a vehicle containing a firearm is not enough to prove constructive possession, but presence together with "other incriminating evidence, 'will serve to tip the scale in favor of sufficiency.' " Commonwealth v. Albano, 373 Mass. 132, 134 (1977), quoting from United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976). See Commonwealth v. Brzezinski 405 Mass. 401, 409-410 (1989) (circumstantial evidence and permissible inferences drawn therefrom can prove constructive possession). We conclude that the evidence was sufficient as a matter of law to support the jury's verdicts.

A jury reasonably could have inferred that the defendant exercised sufficient dominion and control over the two loaded firearms to constructively possess them. Both firearms were found along the path traveled by the defendant's vehicle, and the police did not see any other person or moving vehicle while following him on Regent Street. The magazine of one firearm was damaged and the broken-off part was found lying nearby. These facts support an inference that the firearms were thrown from the defendant's vehicle. Additionally, both front windows of the Lexus were rolled down, supporting an inference that the firearms were thrown from the front seats of the car the defendant was driving. See Commonwealth v. Jefferson, 461 Mass. 821, 826-827 (2012) (evidence sufficient to prove both driver and front seat passenger in car jointly possessed firearm that was found damaged along their flight path even though no one had seen firearm being thrown from vehicle). A rational trier of fact could infer that the defendant recognized, from being pulled over a few days before, the unmarked police car giving chase and that the defendant sped away to throw the firearms so that they would not be found during a stop. See id. at 826 (circumstantial evidence reasonably permitted inference that defendants had thrown contraband firearm from vehicle). Finally, the shell casings found at the park and the ammunition in the vehicle matched the firearms, permitting the jury to infer that the firearms had been in the vehicle. Although a seventeen year old backseat passenger in the vehicle said he would "take the heat" for the firearms, more than one inference may be drawn from that statement and, in any event, possession need not be exclusive. See Commonwealth v. Beverly, 389 Mass. 866, 870 (1983). The evidence at trial was therefore sufficient as a matter of law to support the defendant's convictions of the firearms charges.

2. Ineffectiveness of counsel. To evaluate ineffective assistance of counsel, we look to see whether "there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Such a defense is substantial if there is "a serious doubt whether the jury verdict would have been the same had the defense been presented." Commonwealth v. Millien, 474 Mass. 417, 432 (2016). The defendant raises his claim of ineffective assistance of counsel on direct appeal, which is "the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).

The defendant argues that trial counsel was ineffective for allowing the Commonwealth to improperly introduce prior bad act evidence of the defendant's previous police stops, including one five days earlier "[f]or a similar infraction." The defendant argues that this testimony may have impermissibly caused the jury to infer that the defendant was stopped previously for a firearms violation. We disagree that trial counsel's failure to object to a single question about the defendant's earlier "infraction" constitutes serious incompetency, inefficiency, or inattention. When the prosecutor asked Officer Johnson if he had seen the green Lexus the defendant was driving before the day in question, he answered "[y]es." The prosecutor asked the officer when he had seen it, and he answered, "We've stopped this car a few different times in the past. The more recent time was I believe five days prior to that." The prosecutor then asked, "[f]or a similar infraction?" -- and Officer Johnson responded "yes," and indicated he had been driving the same unmarked cruiser. Officer Johnson shortly went on to describe that, on the day in question, it was the defendant's speeding up and taking a right turn at a red light without stopping that prompted the officers to turn on their lights and sirens.

When considered in context, it would have been reasonable for counsel to view the question as referring to a traffic infraction and not a firearms violation. The officer mentioned earlier stops, and then described how the defendant sped up and ran a red light; for that reason, a reasonable jury would likely infer that the previous "infraction" was also a traffic stop. Testimony about the previous stop was admissible to show that the defendant recognized the particular unmarked police vehicle, and allowed the jury to infer that this knowledge caused him to speed away. Given the record, we cannot conclude that trial counsel was ineffective. See Millien, 474 Mass. at 432-433.

Judgments affirmed.

      At one point Officer Johnson testified that he "believe[d]" the license plate number was broadcast as "97YKY9." This minor discrepancy does not alter our conclusion as to sufficiency.


text:
    COMMONWEALTH v. Michael KOZAKIEWICZ.
    17-P-77
    Appeals Court of Massachusetts.
    Entered: July 12, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Michael Kozakiewicz, was convicted of reckless assault and battery by means of a dangerous weapon (motor vehicle) (ABDW), G. L. c. 265, § 15A(b ), and assault and battery, G. L. c. 265, § 13A(a ). Before us are the consolidated appeals from his convictions and the denial of a subsequent motion for a new trial. The defendant argues that the ABDW conviction was unsupported by legally sufficient evidence and that judgment should enter for him on that count; alternatively, he contends that the case should be remanded for a new trial due to various errors by the trial judge and the prosecutor's failure to timely disclose exculpatory evidence. We hold that the ABDW conviction was supported by legally sufficient evidence and that the trial judge did not commit reversible error, but vacate the ABDW conviction due to the prosecutor's inadvertent failure to timely disclose exculpatory evidence. We affirm the conviction of assault and battery.

Background. The defendant married Nahomie Prophete, the only Commonwealth witness, on November 8, 2011, in Montclair, New Jersey. They separated soon after their marriage, and Prophete moved to Brockton to live with extended family; the defendant stayed in Montclair. While they were separated, the defendant would take the bus to Brockton to visit on occasion. One of these visits occurred on May 26, 2012. At the time, Prophete was pregnant with the defendant's child, but it was disputed at trial whether the defendant knew this. Prophete picked the defendant up from the bus station in Boston in a sport utility vehicle (SUV) and drove him to Brockton. The two of them then returned to Boston for a recreational trip with some of Prophete's family members. Some conflict occurred on the trip, and, when they got back to Brockton, the defendant said that he wanted to drive home.

A scuffle ensued over whether the defendant could take the SUV. The defendant believed he was entitled to take the SUV because he had purchased it and had driven it to Brockton in a past visit only so Prophete could have more mobility while interviewing for a job. According to Prophete, the defendant had no such right because she, not he, had bought the SUV, it was registered in her name, he had another vehicle in Montclair, and she needed it for work.

The scuffle began inside the house as a fight for the keys to the SUV. Prophete testified that she had initial control of the keys, which the defendant attempted to wrest from her. During the struggle, he put her in a chokehold, and eventually ended up with the keys. The defendant, meanwhile, testified that he took the keys from the kitchen counter, and, while he was gathering his belongings, Prophete attacked him by scratching him, ripping his shirt, kicking him, biting him, and hitting him with a hammer and screwdriver. Prophete testified that she did not remember doing these things but that any marks on the defendant would have resulted from her attempting to defend herself.

The struggle moved outside. Prophete testified that she managed to exit the house with the keys and reach the vehicle, which she intended to drive away. According to Prophete, before she could do so, the defendant reached the car and smashed her head against the steering wheel. She ran into the house to call the police but left the keys in the ignition. The defendant initially followed her into the house, but then went back to the car to drive it away. He put it in reverse and Prophete jumped into the passenger seat. Half her body was outside the car as he reversed and drove it around the corner. He started driving the car forward and pushed her out of it, then reversed and drove it over her legs. The medical records reflect that Prophete stated at the hospital that her husband ran over only her right leg.

The defendant's version of the final portion of these events is very different. He left the house with the keys, entered the SUV, and started the car. Prophete tried to remove the key from the ignition and physically tried to prevent him from moving the SUV. Despite this, he was able to put the SUV in reverse. Prophete continued to struggle with him and he lost control of the vehicle. The SUV hit the curb and Prophete fell out, having failed to close the passenger side door when she entered the vehicle. The defendant denied hitting Prophete's head on the steering wheel, pushing her out of the car, or running over her leg.

The defendant drove back to New Jersey and never visited Prophete again. Prophete was taken to a hospital. Medical records from her visit, which were admitted at trial, show various abrasions and contusions on her thighs and elbows. They also show that "[t]here is tenderness in the tib. fib. region as well as in the ankle," but there was neither "significant edema" nor any sign of fracture. Her "gait [was] impaired." The defendant introduced photos of his injuries that show scratches, bruises, and a human bite mark.

A criminal complaint issued on May 29, 2012, charging the defendant with ABDW and assault and battery on a pregnant person, G. L. c. 265, § 13A(b )(ii), but the defendant testified that he did not become aware of the charges until July 14, 2015. By that point, Prophete had given birth to their child and filed for divorce. Her ground for divorce was the cruel and abusive treatment she suffered during the incident. On the day of trial, April 25, 2016, Prophete invoked her privilege against self-incrimination and her marital privilege. Because Prophete was the only Commonwealth witness, the case was dismissed. However, the Commonwealth refiled the complaint on May 17, 2016, apparently upon Prophete's request. At the trial that eventually occurred, the judge prohibited defense counsel from inquiring into Prophete's reasons for invoking her privileges or asking the Commonwealth to refile the complaint.

At 8:55 P.M. on the first day of the two-day trial, Prophete's cousin sent an electronic mail message (e-mail) to the victim-witness advocate assigned to the case containing photos of Prophete's injuries taken while in the hospital. The photos are consistent with the medical records, but there are no photos that focus on Prophete's right leg. The victim-witness advocate forwarded the e-mail to the prosecutor at 8:30 the next morning. Deliberations began at 12:37 P.M. , and the prosecutor e-mailed the photos to defense counsel at 1:25 P.M. , later explaining in an affidavit, credited by the motion judge, that this was when he first learned that the prosecution possessed them. The victim-witness advocate had informed him of the existence of the photographs, but not the Commonwealth's possession of them, in person before the second day of trial began. Sometime between then and 1:47 P.M. , when the jury returned with a question, the prosecutor handed defense counsel photocopies of the photos. The jury returned verdicts of guilty of ABDW (motor vehicle) under a recklessness theory and guilty of the lesser included offense of assault and battery on the count of assault and battery on a pregnant person. The verdict slip indicates that the jury found that the defendant assaulted and battered Prophete by pushing her out of the car, rather than by either striking her head against the steering wheel or grabbing the keys from her hands, which were the other two acts that were listed as possible support for a guilty verdict of assault and battery. The defendant moved for a new trial based on the prosecutor's failure to timely disclose specifically requested exculpatory evidence, having previously requested "[a]ll photographs taken in connection with this case." His motion was denied after a hearing. This appeal followed.

Discussion. 1. Sufficiency of the evidence of ABDW. In assessing the sufficiency of the evidence, we consider whether the evidence, viewed in the light most favorable to the Commonwealth, could satisfy a rational trier of fact of each element of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). Under the Commonwealth's theory of the case as presented to the jury, the only conduct that can support the conviction of ABDW is the defendant's running over Prophete's leg with the SUV.

The defendant first argues that there was insufficient evidence of recklessness. This argument fails. To prove recklessness, the Commonwealth must show 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.' " Commonwealth v. Welch, 16 Mass. App. Ct. 271, 275 (1983) (citations omitted). A jury clearly could infer recklessness from Prophete's testimony that the defendant continued to drive after pushing her out of the car. The jury also were not required to infer that his conduct was intentional; a rational juror could have concluded that the defendant did not know that Prophete was under the car, but disregarded the substantial probability that she was.

The defendant further argues that there was insufficient evidence that Prophete was injured by contact with the motor vehicle. To satisfy the injury prong, "the Commonwealth must prove an injury that interfered with the health or comfort of the victim. It need not have been permanent, but it must have been more than transient and trifling." Commonwealth v. Burno, 396 Mass. 622, 627 (1986). Prophete's abrasions, contusions, and impaired gait are serious enough to satisfy the injury prong. And, while the jury certainly could have inferred that the medical records show that the defendant did not run her over with the SUV, the evidence did not mandate such an inference.

2. Lack of a sua sponte self-defense instruction. The defendant did not request a self-defense instruction, and the judge did not give one sua sponte. The defendant now argues, citing our decision in Commonwealth v. Galvin, 56 Mass. App. Ct. 698, 701 (2002), that the judge's failure to do so created a substantial risk of a miscarriage of justice. In Galvin, we held that the judge was obligated to instruct sua sponte on self-defense "[b]ecause there was an evidentiary basis for a self-defense instruction." Ibid. However, Galvin must be read against the backdrop of our decision in Commonwealth v. Hakkila, 42 Mass. App. Ct. 129, 130-131 (1997), which was discussed in Commonwealth v. Norris, 462 Mass. 131, 143-144 & n.12 (2012), that this obligation arises only when the defendant relies on a self-defense theory at trial.

The defendant did allude to self-defense with respect to the struggle over the keys, but the verdict slips show that he was not convicted for this conduct. Instead, the assault and battery conviction was for pushing Prophete out of the SUV. The defendant testified that Prophete fell out of the car on her own, and defense counsel reiterated these points in closing. And the record did not support a self-defense instruction for the ABDW charge, nor did the defendant rely on such a theory. Thus, the defendant did not rely on a self-defense theory with respect to the conduct for which he was convicted, and the judge's failure to give a sua sponte self-defense instruction did not result in a substantial risk of a miscarriage of justice.

3. Exclusion of questions regarding prior dismissal of the case. The defense theory of the case was that Prophete was lying about the incident to gain an advantage in the divorce proceedings and obtain sole custody of the child. Defense counsel was allowed to ask Prophete whether she had filed for divorce based on cruel and abusive treatment related to the incident, and whether she thought that the criminal proceedings against the defendant would help her in her divorce action, but not about why she had the case dismissed and then refiled. The defendant argues that this decision violated his constitutional right to cross-examine a witness on her potential bias or prejudice. See Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 186 (2013).

Defense counsel's only proffered reasons for asking about the dismissed case were that he "would ... have questions about if the divorce was still pending on the date when it was dismissed and the date she refiled it," and that "her success in her divorce case could depend on what happens here." With respect to the former, the divorce documents show that Prophete filed her divorce action about one year before invoking her privileges, and she testified that the divorce was still pending. If defense counsel had hoped to demonstrate that Prophete had the case refiled only after deciding to divorce the defendant, he would have failed. With respect to the latter, the judge's decision to exclude testimony about the dismissal and refiling of the case did not prevent defense counsel from asking, as he did, whether Prophete would use the criminal proceedings in her divorce action. The defendant's right to cross-examine Prophete on her bias and prejudice was not violated.

4. The prosecutor's failure timely to disclose exculpatory evidence. Under Brady v. Maryland, 373 U.S. 83 (1963), the prosecution team has a duty timely to disclose exculpatory evidence in its possession to the defense. See Commonwealth v. Wilson, 381 Mass. 90, 114 (1980). The prosecution team includes victim-witness advocates. See Commonwealth v. Bing Sial Liang, 434 Mass. 131, 135-136 (2001). Good faith on the part of the prosecution team does not excuse failure to disclose exculpatory evidence. See Brady, 373 U.S. at 87.

The defendant bears the burden of proving that the nondisclosure of exculpatory evidence was prejudicial. Where, as here, the defendant specifically requested the undisclosed evidence, "a standard of prejudice more favorable to the defendant is justified," and "a defendant need only demonstrate that a substantial basis exists for claiming prejudice from the nondisclosure." Commonwealth v. Tucceri, 412 Mass. 401, 407, 412 (1992). We will uphold a conviction only if "we can be confident that, even if the prosecution had supplied the [evidence] to the defendant[ ] in timely fashion, the [evidence] would not have influenced the jury." Commonwealth v. Daye, 411 Mass. 719, 729 (1992).

Here, the defendant argues that the photos were exculpatory, and their nondisclosure prejudicial, because the fact that they appeared to depict all of Prophete's injuries, but did not include one focused on her right leg, corroborates his testimony that he did not run over her leg with the SUV and impeaches Prophete's credibility. In addition, the right leg is somewhat visible in a photo that focuses on the left arm, and does not appear injured. The Commonwealth argues, and the motion judge ruled, that the photos are merely cumulative of the medical records, and that their nondisclosure was neither exculpatory nor prejudicial.

The photos are not cumulative of the medical records, and are exculpatory of the ABDW conviction. The medical records are replete with technical terminology, some of which the Commonwealth felt it necessary to define in its brief. Seeing no swelling in a leg allegedly run over by an SUV is more powerful than reading that "there is really no significant edema." Moreover, the defendant could have used the photos to ask the jury to question why, if Prophete's right leg had been run over by an SUV, a set of photos of her injuries did not include one focusing on her right leg. Thus, the defendant has met his burden to show that the photos were exculpatory of his ABDW conviction and that he was prejudiced by their nondisclosure. However, the photos do not rebut any of Prophete's claims related to the assault and battery conviction, and are sufficiently attenuated from her credibility with respect to that claim, that the defendant has failed to demonstrate prejudice with respect to it.

The Commonwealth also argues that, as the motion judge found, the prosecution team never had a duty to disclose the photos because they were not in its custody or control until after the close of the evidence. This is incorrect. The e-mail chain demonstrates that the victim-witness advocate possessed the photos by 8:30 A.M. on the second day of trial. Since victim-witness advocates are part of the prosecution team, see Bing Sial Liang, 434 Mass. at 135-136, the duty to disclose the photos arose at that point at the latest. Finally, the prosecutor states in his affidavit, which the motion judge credited, that the victim-witness advocate told him in person, before the start of the second day of trial, that the cousin had the photos, but that he did not understand this to mean that the victim-witness advocate also had them. Even so, a good faith communications breakdown within the prosecution team does not excuse a Brady violation. "If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor." United States v. Agurs, 427 U.S. 97, 110 (1976).

Conclusion. The portion of the order denying the motion for new trial on the conviction of ABDW is reversed; in all remaining respects, the order is affirmed.

The judgment on the lesser included offense of assault and battery is affirmed. On the count charging ABDW, the judgment is vacated and the verdict is set aside.

So ordered.

      While it is conceivable that striking Prophete's head against the steering wheel also could have supported the ABDW conviction, the verdict slips, the prosecutor's closing argument, and the judge's instructions indicate that this was advanced as a theory of assault and battery on a pregnant person and the lesser included offense of assault and battery, not ABDW. Any other injury caused by the defendant moving the vehicle with Prophete hanging out an open door might also have supported an ABDW conviction, but the Commonwealth's sole theory of the ABDW case advanced to the jury was that the defendant ran over Prophete's leg.


text:
    COMMONWEALTH v. David S. DURLING.
    17-P-1089
    Appeals Court of Massachusetts.
    Entered: July 12, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury-waived trial in the District Court, the defendant, David S. Durling, was found guilty of operating a motor vehicle while under the influence of intoxicating liquor, fourth offense, in violation of G. L. c. 90, § 24(1)(a )(1), and negligent operation of a motor vehicle, in violation of G. L. c. 90, § 24(2)(a ). He appeals from his convictions and from the denial of his motion for new trial based on ineffective assistance of counsel. The defendant maintains that the judge failed to apply the correct legal standard in determining whether the defendant was deprived of an otherwise available, substantial ground of defense. We affirm.

Background. Hearing on motion for new trial. The motion judge, who was also the trial judge, held an evidentiary hearing on April 12, 2017. Attorney Peter Russell testified that, in June, 2014, the Commonwealth provided him with discovery materials, including the booking sheet, police report, witness statement, 911 tape, and the booking video. The pretrial conference report, which Attorney Russell signed, states that the Commonwealth turned over all discovery materials as required under Mass.R.Crim.P. 14, as appearing in 442 Mass. 1518 (2004). In September, 2014, the defendant obtained new counsel, Attorney Nicolas Gordon. Attorney Russell called Attorney Gordon and asked if he wanted a copy of the discovery materials mailed to him, to which Attorney Gordon responded, "Oh, thanks, but no thanks, I'll get it myself." The defendant provided Attorney Gordon with the police report and the complaint. Attorney Gordon did not seek any additional discovery materials from the defendant, and failed to make any effort to obtain discovery materials from the Commonwealth or anyone else.

Attorney Gordon testified that not seeking discovery materials from the Commonwealth was a trial tactic because he thought he would be able to get the booking video excluded if it was not provided to him. He stated that he believed this would be the "best case scenario" for the defendant, and that such tactic had been successful in some of his previous cases. Attorney Gordon also testified that the "second best scenario" would be that the booking video was not excluded but that the judge would "permit [him] to view it prior to it being played during trial so [he] could analyze it, digest it, [and] think about how to deal with any salient issues that appeared in the video." He also stated that he "anticipated that if [the video were not excluded, he would] see it a second time during trial, just to have another full opportunity to sit and view it and digest it again."

After the evidentiary hearing, the judge denied the defendant's motion for new trial. The judge concluded that "while [Attorney Gordon's] decision not to seek production of the defendant's booking video was not sound strategy under the circumstances, ... [such strategy] did not deprive the defendant of a 'substantial ground of defence.' " On appeal the defendant challenges the judge's ultimate conclusion. The defendant agrees with the judge that Attorney Gordon's performance fell below that of an ordinary, fallible attorney because he failed to obtain and review discovery materials, but maintains that the judge erred in determining that review of such materials prior to trial would not have provided Attorney Gordon with additional avenues of defense.

Discussion. "We review a judge's denial of a motion for a new trial for 'a significant error of law or other abuse of discretion,' granting 'special deference to the rulings of a motion judge who was also the trial judge.' " Commonwealth v. Alcide, 472 Mass. 150, 158 (2015), quoting from Commonwealth v. Forte, 469 Mass. 469, 488 (2014). A defendant asserting a claim of ineffective assistance of counsel must show that his counsel's conduct fell " 'below that which might be expected from an ordinary fallible lawyer' and prejudice[d] the defendant by depriving him 'of an otherwise available, substantial ground of defence.' " Commonwealth v. Lavoie, 464 Mass. 83, 89 (2013), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "Where, as here, the claim is that defense counsel committed a tactical error, the defendant must demonstrate that defense counsel's tactical judgment was manifestly unreasonable." Commonwealth v. Hudson, 446 Mass. 709, 715 (2006), quoting from Commonwealth v. Finstein, 426 Mass. 200, 203 (1997).

Here, we agree with the judge that Attorney Gordon's tactical decision was not sound strategy under the circumstances; however, this does not necessarily satisfy the first prong of Saferian. Nonetheless, we emphasize that Attorney Gordon's decision to not alert the court or the Commonwealth that he not only declined Attorney Russell's offer to send him the discovery materials but that he was also waiting on the Commonwealth to send him the discovery materials was an unethical tactic. Contriving a cat-and-mouse game with the Commonwealth in hopes of reaching a "gotcha" moment once trial commenced does not meet the ordinary expectations we hold for an officer of the court, and counsel should have anticipated that the trial judge would not reward such chicanery. See Commonwealth v. Frith, 458 Mass. 434, 444-445 (2010) ("While the failure to comply with [ Mass.R.Crim.P. 14 ] rests squarely on the shoulders of the Commonwealth," defense counsel's "game of 'gotcha' with respect to the unproduced police report," which counsel knew existed and did not alert the court or the Commonwealth prior to trial that a copy had not been disclosed to him, "fell far short of exemplary").

We also see no abuse of discretion with regards to the judge's determination that while Attorney Gordon's conduct was "not sound strategy[,] ... it did not deprive the defendant of a 'substantial ground of defence.' Saferian, 366 Mass. at 96." The defendant asserts that had Attorney Gordon obtained and reviewed the discovery materials prior to trial, he would have: (1) explored whether the police officer misheard the defendant saying "he's had a few" for "we've had a few," and utilized such argument with the fact that the defendant denied consuming alcohol at his booking; and (2) investigated whether the medication the defendant admitted to taking mimicked the effects of alcohol. The motion judge found, and we agree, that arguing that the defendant denied consuming alcohol stands in direct "counterpoint to the arresting officer's observation of 'an overwhelming odor of alcoholic beverage' emanating from the defendant after his arrest and before booking." The judge in this jury-waived trial was within her discretion to credit the officer's testimony over the defendant's self-serving statements. In addition, as the motion judge properly acknowledged, the Commonwealth need not prove that the defendant's impairment was based solely on alcohol in order to convict him of operating under the influence; such a conviction may be based on the consumption of both alcohol and medication which "tended to magnify the effect of the liquor or concurred in causing the defendant's diminished capacity to operate safely." Commonwealth v. Stathopoulos, 401 Mass. 453, 456 n.4 (1988). Where the judge credited the police officer's testimony that the defendant smelled strongly of alcohol, the argument that the defendant was on medication would not have provided him any benefit.

Judgments affirmed.

Order denying motion for new trial affirmed.

      The defendant was also found responsible for one count of a civil motor vehicle infraction for a marked lanes violation, pursuant to G. L. c. 89, § 4A.

      Attorney Russell was the defendant's court-appointed attorney.


text:
    Nataly MINKINA v. Laurie A. FRANKL & others.
    17-P-1330
    Appeals Court of Massachusetts.
    Entered: July 12, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Jonathan J. Margolis; and Rodgers, Powers & Schwartz, LLP.

   The plaintiff, Nataly Minkina, appeals from an April 24, 2017, Superior Court order denying her motion for relief from a judgment after rescript, pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). We affirm.

Background. This case has a long history, including multiple prior appeals to this court. The plaintiff originally sued the defendants (Frankl; Margolis; and Rodgers, Powers & Schwartz, LLP) for alleged legal malpractice that occurred during the defendants' representation of the plaintiff in an employment discrimination action. See Minkina v. Frankl, 86 Mass. App. Ct. 282, 283, 286 (2014) (Minkina I ). The claims were dismissed on the defendants' motion for summary judgment, in April of 2013. See Minkina I, supra at 287-288. On September 11, 2013, the judge subsequently awarded attorney's fees to the defendants, pursuant to G. L. c. 231, § 6F. See Minkina v. Frankl, 88 Mass. App. Ct. 1116 (2015) (decision pursuant to rule 1:28) (Minkina II ).

On appeal, this court affirmed the summary judgment dismissing the complaint against the defendants. Minkina I, supra at 287-293. The attorney's fees award was separately appealed, and was affirmed by a single justice and subsequently by a full panel of this court. Minkina II, supra.

After this court affirmed the attorney's fees award, the defendants on April 27, 2016, filed a motion for judgment after rescript regarding the fees and costs, which the Superior Court judge allowed, entering judgment after rescript on May 17, 2016. An execution on the judgment entered on July 7, 2016.

Roughly six months later, on January 18, 2017, the plaintiff filed the motion for relief from the judgment after rescript, pursuant to Mass.R.Civ.P. 60(b), that is the subject of this appeal. On April 24, 2017, the motion judge denied the rule 60(b) motion. He stated that the motion was untimely, and that the arguments raised in the motion either had already been made, or should have been made, in connection with the two motions (for summary judgment and for fees) that were decided in 2013. The plaintiff appeals.

Discussion. a. Plaintiff's motion for relief from judgment. An appellate court will not reverse a motion judge's decision on a motion for relief from judgment, pursuant to Mass.R.Civ.P. 60(b), unless there is a "showing of a clear abuse of discretion." Stephens v. Global NAPs, 70 Mass. App. Ct. 676, 684-685 (2007).

In this present appeal, the plaintiff argues that the original award of attorney's fees in 2013 was improper under G. L. c. 231, § 6F, because the fees were not actually "incurred" by the defendant; that there were uncontroverted facts that establish that her original malpractice action was not frivolous; and that the defendants obtained a favorable decision on their motion for summary judgment by making misrepresentations regarding Minkina's motives in filing a motion to amend. As the motion judge stated, these arguments are directed at the order granting summary judgment, and the fee award order, that were entered in 2013. And as noted above, both the order granting summary judgment and the fee award order were previously appealed to this court.

There accordingly was no abuse of discretion in denying the plaintiff's motion, substantially for the reasons stated by the motion judge. First, the plaintiff's rule 60(b) motion was untimely, because the arguments it raised were directed at the summary judgment and fee award orders entered in 2013, over three years earlier. Rule 60(b) requires that motions be made "within a reasonable time" after the judgment or order, and it was well within the court's discretion to determine the motion untimely here. Additionally, the arguments in the plaintiff's rule 60(b) motion either had already been raised or could have been raised earlier in the litigation, and should have been raised, if at all, in prior appeals to this court. For example, the plaintiff's argument that the defendants did not "incur" expenses within the meaning of § 6F should have been argued, if at all, in opposition to the original motion for fees, and then been the subject of the appeal to the single justice under G. L. c. 231, § 6G. Minkina II, supra. Additionally, the plaintiff's argument that billing records of the defendants show that the defendants misled the Superior Court judge into denying the plaintiff's motion to amend her complaint is just a rehash of an argument that the plaintiff raised in her appeal from the 2013 summary judgment. There was no error in denying the rule 60(b) motion.

b. Defendants' motion for relief from vexatious and improper conduct. On May 16, 2017, after the plaintiff filed her present notice of appeal, the defendants filed in the Superior Court a "motion for relief from Plaintiff's vexatious and improper conduct," purportedly under Mass.R.Civ.P. 59, 365 Mass. 827 (1974), and rule 60. On appeal, the defendants ask this court to deem the plaintiff a vexatious litigant, pursuant to their motion below. The motion for relief is not properly before this court, however, as there has been no action by the trial court on the defendants' motion, let alone any appeal from an order on the motion.

c. Plaintiff's motion for recusal. After the present notice of appeal was filed, the plaintiff filed in the Superior Court a motion for recusal and disqualification of the motion judge. The motion judge denied the motion. The plaintiff sought review of the denial by a single justice of this court, attempting to utilize a petition under G. L. c. 231, § 118. On August 17, 2017, the single justice dismissed the order on procedural grounds, stating, "[T]he plaintiff may raise her arguments for recusal in her appeal to the panel." The plaintiff did not, however, notice an appeal to this court.

The plaintiff has argued in this appeal that the Superior Court judge wrongfully denied her recusal motion. The denial of the recusal motion is not properly before us on this appeal, however, as this appeal is from the denial of the plaintiff's rule 60(b) motion.

Even if we were to reach the merits of the recusal motion, the plaintiff would fare no better. The record reveals no evidence of bias or prejudice towards the plaintiff on the part of the judge. Moreover, the judge consulted his own emotions and conscience, and determined that he was free of bias and prejudice in this case. He also evaluated if his impartiality could reasonably be questioned, and determined that it could not. We discern no error or abuse of discretion. See Lena v. Commonwealth, 369 Mass. 571, 575 (1976) (judge is to consult "his own emotions and conscience" to determine if free of prejudice); Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 546 nn.5 & 6 (1998) (judge must objectively evaluate whether impartiality might be questioned).

The order entered April 24, 2017, denying the plaintiff's motion for relief from judgment after rescript is affirmed. The defendants are awarded costs of appeal.

So ordered.

Affirmed.

      Though the plaintiff's notice of appeal states that she is appealing from a judgment, the date she specifies is the date of the order denying her motion for relief from judgment.

      Although we need not reach the merits of the plaintiff's "incurred" argument, we note that the plaintiff's argument runs contrary to the reasoning of the Supreme Judicial Court decision in Polay v. McMahon, 468 Mass. 379, 389 (2014).

      This court invited the defendants to address in their appellate brief whether "the appeal is premature and the notice of appeal filed by the [plaintiff] after entry of judgment is a nullity due to [the defendants'] filing of its postjudgment motions"; the defendants did not address the issue. In any event, the defendant's postjudgment motion was not filed within ten days of the judgment after rescript, and in fact was filed in the Superior Court after Minkina filed her notice of appeal. It does not impact the current appeal. See Mass.R.A.P. 4(a), 365 Mass. 733 (1974).

      The plaintiff apparently interpreted the single justice's order to mean that the order denying recusal was somehow being consolidated into this appeal. The single justice's order, however, was simply saying that the plaintiff could not appeal the recusal decision to the single justice, and needed to appeal that decision to the full court. The plaintiff did not notice an appeal to the full panel from the recusal order.


text:
    Francis RICARD v. Deborah DUTTON.
    17-P-969
    Appeals Court of Massachusetts.
    Entered: July 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Francis Ricard appeals from a Probate and Family Court judgment, dated January 27, 2017, dismissing his complaint for modification, which requested termination of his alimony obligation pursuant to the Alimony Reform Act of 2011, G. L. c. 208, §§ 48 - 55 (reform act), inserted by St. 2011, c. 124, § 3. Ricard contends that the trial judge committed error in awarding Deborah Dutton (Ricard's former wife) alimony beyond the presumptive durational limit established by the reform act. We affirm.

Facts. Ricard and Dutton were married on October 12, 1986, and were divorced, by a judgment nisi, on March 5, 2003. The divorce judgment incorporated the parties' separation agreement; however, provisions regarding alimony were "merged in the [divorce] judgment."

In October, 2015, Ricard filed a complaint seeking the termination of his alimony obligation based on the running of the durational limit established by G. L. c. 208, § 49. Pursuant to § 49(b )(4), for marriages lasting between fifteen and twenty years, as was the case here, "general term alimony shall continue for not longer than 80 per cent of the number of months of the marriage." Here, the statutory durational limit for spousal alimony was just over 155 months or February, 2016. The parties submitted a joint stipulation of uncontested facts and were the only trial witnesses. Following the trial, the judge made written findings of fact. The judge expressly found that Dutton was unable to provide sufficiently for her own support, due largely to her serious "pre-existing medical situation and disability," a grave circumstance warranting deviation from the presumptive durational limits in the interests of justice. See G. L. c. 208, § 53(e )(1) & (8). The judge found that Dutton suffers from a congenital spinal defect that "continues to substantially hamper her ability to provide for her own needs," and that Dutton lives on a meager income, comprised of modest disability benefits and occasional aid from family, which often left Dutton unable to pay for medical treatment or medication. In short, the judge determined that Dutton had to make do under strained financial circumstances. On the other hand, the judge concluded that Ricard failed to meet his burden of establishing an inability to pay alimony. In the end, the judge determined that Dutton met her burden of demonstrating an ongoing need for alimony, and that the interests of justice warranted a deviation from the presumptive statutory durational limit. For the reasons cited, the judge denied Ricard's request to modify or terminate alimony.

Standard of review. We review a judge's denial of a party's request for modification of alimony for an abuse of discretion. See Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 773 (2014). A complaint for modification of alimony is governed by the reform act, which "changed neither the essential purpose nor the basic definition of alimony: 'the payment of support from a spouse, who has the ability to pay, to a spouse in need of support.' " Van Arsdale v. Van Arsdale, 477 Mass. 218, 219 (2017) (Van Arsdale ), quoting from G. L. c. 208, § 48. The reform act did bring about certain changes to the Commonwealth's alimony laws, notably, the "creation of durational limits-or presumptive termination dates-for alimony obligations arising from marriages lasting fewer than twenty years." Van Arsdale, supra. The presumption that alimony must terminate after a stated period of time "may be overcome, however, by showing that the payment of alimony beyond the relevant durational limit is 'required in the interests of justice.' " Ibid., quoting from G. L. c. 208, § 49(b ). See George v. George, 476 Mass. 65, 69-70 (2016) (George ).

Discussion. The fundamental purpose of alimony has remained constant despite the provisions of the reform act. Awards predating the enactment of the reform act may be modified by a judge, in amount and duration, based upon a party's showing of a material change in circumstances but "for not longer than 80 per cent of the number of months of the marriage" if the duration of the marriage is, as here, between fifteen and twenty years. G. L. c. 208, § 49(b )(4). See Rodman v. Rodman, 470 Mass. 539, 544 (2015) (durational limits of alimony awards are retroactive and applicable to awards predating reform act). A judge may, however, deviate beyond these termination dates if the judge's written findings establish that doing so is warranted in the interests of justice. "The recipient spouse bears the burden of proving by a preponderance of the evidence that deviation beyond the presumptive termination date is 'required in the interests of justice.' G. L. c. 208, § 49(b )." George, supra at 70. A judge is obliged to "evaluate the circumstances of the parties in the here and now; that is, as they exist at the time the deviation is sought, rather than the situation as it existed at the time of divorce." Ibid.

"Although a 'judge has broad discretion when awarding alimony under the [alimony reform act],' the judge must consider all relevant, statutorily specified factors, such as those set forth in G. L. c. 208, §§ 49(d ) and 53(a )." Duff-Kareores v. Kareores, 474 Mass. 528, 535-536 (2016), quoting from Zaleski v. Zaleski, 469 Mass. 230, 235 (2014) (footnote omitted). The statutory factors for modifying an existing alimony order that deviates from durational limits are set forth in G. L. c. 208, § 53(e ). Such factors, bearing on the analysis of need, include the health and age of the parties. Young v. Young, 478 Mass. 1, 7 n.7 (2017).

The judge's written findings demonstrate that he considered the statutory factors in § 53(e ) before ordering a deviation from the legislatively mandated durational limits of alimony. The judge essentially found that Dutton's "chronic illness[ ] or unusual health circumstances" warranted the deviation. The judge's thoughtful written findings reflect a sound understanding of the statutory criteria and are rooted in the evidence admitted at trial. Accordingly, we discern no reasonable basis to disturb the judgment.

Judgment dated January 27, 2017, affirmed.

      At the time he filed his complaint for modification, Ricard was paying $175 per week for alimony.

      The parties acknowledge that application of that presumptive durational limit would bring an end to the alimony award due to the length of their marriage.

      The parties had filed a joint petition for divorce on December 11, 2002.

      General Laws c. 208, § 48, defines the "[l]ength of the marriage" as "the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce." The reform act provides for the circumstance of increasing the length of the marriage if there is "evidence that the parties' economic marital partnership began during their cohabitation period prior to the marriage." Ibid.

      "General term alimony" is defined as the "periodic payment of support to a recipient spouse who is economically dependent." G. L. c. 208, § 48.

      Dutton presently suffers from a degenerative spinal condition that has required multiple medical procedures, the most recent occurring in May, 2016.

      The parties agree that Dutton is presently disabled and unable to work.

      At trial, Ricard confirmed that he does not pay rent to live in the home of his domestic partner, with whom he has resided since August, 2003. Ricard's partner also contributes substantially to the payment of regular household expenses.

      That said, the judge was "empathetic to the plight of both parties" and observed that Ricard's present income was "not so great that the payment of alimony is inconsequential."

      Alimony is support paid by one spouse, who is able to do so, to the other spouse in need. Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986).

      The factors include "(1) advanced age; chronic illness; or unusual health circumstances of either party; (2) tax considerations applicable to the parties; (3) whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse; (4) whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance; (5) sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties['] divorce; (6) significant premarital cohabitation that included economic partnership or marital separation of significant duration, each of which the court may consider in determining the length of the marriage; (7) a party's inability to provide for that party's own support by reason of physical or mental abuse by the payor; (8) a party's inability to provide for that party's own support by reason of that party's deficiency of property, maintenance or employment opportunity; and (9) upon written findings, any other factor that the court deems relevant and material." G. L. c. 208, § 53(e )(1)-(9).

      We do not address Ricard's remaining contentions as "[w]e find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION v. Maximo VALDEZ & others.
    16-P-447
    Appeals Court of Massachusetts.
    Entered: July 11, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Wendy Miguel, Edelyn Valdez, and Janina Rodriguez (which is also spelled Jania in the record).

   Maximo Valdez purchased residential property in 2006, obtaining loans from and granting two mortgages to Lehman Brothers Bank (Lehman). Valdez fell behind on his payments by 2010. Lehman, through its designated nominee, Mortgage Electronic Registration Systems, Inc. (MERS), assigned the first mortgage to Aurora Loan Services, LLC (Aurora), which commenced the foreclosure process in 2010. The foreclosure auction took place in September, 2011; Aurora was the high bidder. Aurora then assigned its bid to the Federal National Mortgage Association (Fannie Mae), which commenced the present summary process action in December, 2011, in the Boston Housing Court against the defendants, Valdez and his family residing in the property (collectively, Valdez).

In May, 2013, while the summary process action was pending, Valdez commenced a separate action in the Superior Court generally asserting that the 2011 foreclosure was invalid. A Superior Court judge allowed Fannie Mae's motion to dismiss, and judgment entered in June, 2014. A panel of this court affirmed in an unpublished memorandum and order issued under our rule 1:28. Valdez v. Federal Natl. Mort. Assn., 89 Mass. App. Ct. 1129 (2016) (Valdez I ).

In December, 2015, more than one year after judgment entered in Valdez I, a Housing Court judge entered judgment in this summary process action awarding possession to Fannie Mae. We affirm, but on grounds different from those upon which the Housing Court judge relied. See American Intl. Ins. Co. v. Robert Seuffer GmbH & Co. KG, 468 Mass. 109, 113 (2014) ("[W]e may consider any grounds that support the motion judge's ruling").

Res judicata, or more generally claim preclusion, bars a party from relitigating claims that were or could have been adjudicated in earlier proceedings. Santos v. U.S. Bank Natl. Assn., 89 Mass. App. Ct. 687, 692 (2016) (Santos ). "This is based on the idea that the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit. The invocation of claim preclusion requires three elements: (1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits. It is the general rule that when two different actions involving the same parties and the same claim are pending at the same time, the final judgment first rendered is entitled to res judicata effect in the second action, regardless of which was commenced first." Ibid. (citation and quotation omitted).

In the present case, the elements of claim preclusion are met, and Valdez's present claims are barred. First, with certain exceptions not material here, the parties in Valdez I are the same as those in the present matter. Second, the claims presented in the two matters arise out of "the same transaction or series of connected transactions." TLT Constr. Corp. v. A. Anthony Tappe & Assocs., 48 Mass. App. Ct. 1, 8 (1999), quoting from Saint Louis v. Baystate Med. Center, Inc., 30 Mass. App. Ct. 393, 399 (1991). In Valdez I, Valdez claimed that the foreclosure was invalid because the mortgagee did not comply with the mortgage's terms and conditions and with the requirements set forth in G. L. c. 244. Likewise, in the present matter Valdez suggests that Fannie Mae's foreclosure title is void, and hence that it failed to demonstrate superior title, because the mortgagee did not comply with the mortgage's terms and conditions and with G. L. c. 244's requirements. Although Valdez did not explicitly raise a claim in Valdez I that the mortgagee did not strictly comply with paragraph 22 of the mortgage, that omission does not change the analysis because the facts upon which Valdez's present claims are based are identical to those at issue in Valdez I; the claims arise from the same transaction, that is, from the 2011 foreclosure and attendant circumstances; and all claims presently asserted actually were or could have been litigated in Valdez I. Valdez does not argue otherwise.

Third, the earlier-entered Valdez I judgment constitutes a final judgment on the merits. See Mestek, Inc. v. United Pac. Ins. Co., 40 Mass. App. Ct. 729, 731 (1996). Accordingly, Valdez's present claims are barred by the Valdez I judgment. See Santos, supra at 692-696.

In this light we need not comment on Valdez's specific claims of error.

Judgment affirmed.

      MERS, Aurora, and Harmon Law Offices PC, all defendants in Valdez I, were not parties to the summary process action.