text:
    COMMONWEALTH v. Jorge ARIAS.
    16-P-647
    Appeals Court of Massachusetts.
    Entered: February 21, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of assault and battery by means of a dangerous weapon (ABDW) upon a person who is pregnant, and assault and battery upon a person who is pregnant. He asserts several trial errors. We affirm.

Background. The jury could have found the following facts. The victim was in a relationship with the defendant's recently-deceased brother until his death in January, 2009. Shortly after the brother's death, the victim and the defendant began a romantic relationship. Roughly two years later, in March, 2011, the victim learned she was pregnant with the defendant's child. The defendant indicated his desire for the victim to get an abortion, which the victim initially agreed to on the condition that the defendant pay for it. The victim was never given the money, and after the defendant ended the relationship, the victim decided that she was going to have the baby.

On May 25, 2011, roughly one month after the defendant ended the relationship, he knocked on the victim's door. She was five months pregnant at the time. After asking her, "What did I tell you to do with the baby?," the defendant began an assault on the victim that included a kick to her stomach, punches to the stomach, and attempts to choke the victim. The victim testified that the attack was centered around her stomach and stated that the defendant seemed to be attempting to "crush" her stomach. The defendant prevented the victim from escaping the apartment three separate times, grabbing her by the hair, striking her head off the door, and causing her to fall to the floor. While she was on the floor, the defendant pressed his fingers into her stomach and pressed on her back with his knees to the point the victim felt he was trying "to pop [her stomach like] a balloon." There was also evidence presented that the defendant choked the victim with her necklace during the attack.

The victim eventually escaped to the parking lot of her apartment with visible injuries. After initially refusing medical treatment, the victim went to the emergency room thirty to forty minutes later to be evaluated. She was seen by Dr. Daniel Cohen and a nurse, Stephen Oullette. Oullette testified at trial that the victim complained of pain in her neck and abdomen and had scrapes and bruises on her neck and right forearm.

In addition to charges stemming from the assault detailed above, the defendant was indicted for, and acquitted of, witness intimidation. On the morning of a scheduled trial date in the assault case, the victim was dropped off at the rear of the courthouse by a taxi. While waiting for the door to be unlocked, she heard the defendant speak to her in Spanish from a transport van, "telling [her] to leave, not to be here, not to do that to him, that he's young and ... he doesn't want to spend his time in jail, so to please leave."

The defendant contends a series of errors occurred at trial, as follows: (1) the judge abused her discretion in failing to give a missing witness instruction for two potential witnesses and declining to give a specific unanimity instruction; (2) the judge erred in failing to redact a portion of the victim's medical records that indicated that she had a contusion on her abdomen; (3) the joinder of the assault charges and witness intimidation charge was error; (4) the Commonwealth's late disclosure of a witness and evidence was a constitutional violation; and (5) his ABDW and simple assault and battery convictions were duplicative.

Discussion. 1. Jury instructions. At trial, the defendant requested that the judge give a missing witness instruction and a specific unanimity instruction. Each request was denied. First, the defendant sought a missing witness jury instruction to explain the absence of testimony from both Dr. Cohen, who treated the victim at the hospital, and Sergeant Jose Martinez, who was first to arrive to the scene of the crime and who was the supervising officer during the shift the assault occurred. The judge denied the request after determining that only duplicative evidence would have been introduced through those two witnesses and there was nothing to suggest that the witnesses were not available to each party. The defendant further pursued a specific unanimity instruction, which the judge denied, instead giving a general unanimity instruction.

We review the judge's refusal to give the requested jury instructions for abuse of discretion, which occurs when a judge makes " 'a clear error of judgment in weighing' the factors relevant to the decision ..., such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (citation omitted). See Commonwealth v. Williams, 475 Mass. 705, 721 (2016).

a. Missing witness. A missing witness instruction is appropriate "[w]here a party has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case, [and] the party would naturally offer that person as a witness. If, then, without explanation, he does not do so, the jury may, if they think reasonable in the circumstances, infer that person, had he been called, would have given testimony unfavorable to the party." Commonwealth v. Figueroa, 413 Mass. 193, 199 (1992), quoting from Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134 (1986). "There is no basis for any such inference when it appears that the testimony would be unimportant-merely corroborative of, or merely cumulative upon, the testimony of one or more witnesses who have been called." Schatvet, supra. "Because the inference, when it is made, can have a seriously adverse effect on the noncalling party, ... it should be invited only in clear cases, and with caution." Figueroa, supra, quoting from Schatvet, supra.

In rejecting the defense's request for missing witness instructions for both Dr. Cohen and Sergeant Martinez, the judge reasoned "that there is no showing that the witness[es] w[ere] not available to each party. I find that any evidence that would have been given or expected to be given would have been cumulative in nature. And it would not have had distinct importance to the case." We conclude that the judge's decision was warranted, and well within the "range of reasonable alternatives." L.L., supra. Oullette, who treated the victim in the emergency room as a nurse, testified in Dr. Cohen's place when it proved too difficult to produce the doctor due to unforeseen scheduling conflicts. Dr. Cohen was known to the defense as well as the prosecution, and likely would have provided largely cumulative testimony to that of Oullette. See Commonwealth v. Saletino, 449 Mass. 657, 668 n.17 (2007) (citations omitted) (while not a "hard and fast rule," "where a witness is 'equally available to parties on both sides of a dispute, no inference should be drawn against either side for failing to call the witness' "). Similarly, while Sergeant Martinez outranks Lawrence police Officer Paul Plantamura, who testified at trial, it was Officer Plantamura who wrote the police report and applied for the arrest warrant. There is nothing to suggest that Sergeant Martinez's testimony would have furthered the case, and Officer Plantamura's was more relevant as he was more heavily involved in the investigation. Bearing in mind that judges are to approach missing witness instructions with particular caution, there was no error in the judge's refusal to include such an instruction. See Figueroa, supra.

b. Specific unanimity. The defendant further asserts that he was entitled to a specific unanimity instruction on his indictment for assault and battery on a pregnant person, one of the two indictments on which he was convicted. "[A] specific unanimity instruction indicates to the jury that they must be unanimous as to which specific act constitutes the offense charged." Commonwealth v. Shea, 467 Mass. 788, 798 (2014), quoting from Commonwealth v. Conefrey, 420 Mass. 508, 512 (1995). "An instruction on specific unanimity is warranted 'when, on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged. There, in order to find the defendant guilty of the charged offense, the jury must all agree as to at least one, specific incident.' " Shea, supra, quoting from Commonwealth v. Santos, 440 Mass. 281, 284-285 (2003). "However, '[w]hen a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required.' " Shea, supra, quoting from Santos, supra at 285.

The defendant contends that he was entitled to a specific unanimity charge because the Commonwealth presented evidence of several individual acts, each of which could have been grounds for the assault and battery conviction. Specifically, the defendant points to evidence of him squeezing and pushing on the victim's stomach, kicking and punching the victim while on the floor, kicking the victim's stomach as she attempted to flee, striking the victim's head off the door, and choking the victim with her necklace. Three of those discrete incidents served as grounds for the three separate ABDW indictments: shod foot, striking the victim's head off the door, and choking the victim with her necklace. As such, the judge was warranted in refusing to offer a specific unanimity instruction for the assault and battery charge as the events were not charged as separate ABDW incidents, but were part of a continuous, spatially and temporally related attack. See Shea, supra. There was no abuse of discretion in the judge's jury instructions.

c. Duplicative convictions. The defendant raises a third issue relating to the judge's jury instructions, asserting error in the judge's failure to instruct the jury that convictions for assault and battery and ABDW must be based on separate and distinct acts. We disagree. The judge denied the defendant's request for the verdict slip on the assault and battery charge to specify that this charge related solely to whether the defendant pushed on the victim's stomach while he was on top of her. As that request did not preserve the issue now challenged, we review for a substantial risk of a miscarriage of justice. See Shea, supra at 790-791. If the judge does not instruct the jury that they must find that "the defendant committed separate and distinct criminal acts to convict on the different charges," a lesser included offense would be vacated "if there is any significant possibility that the jury may have based convictions of greater and lesser included offenses on the same act or series of acts." Commonwealth v. Kelly, 470 Mass. 682, 700 (2015).

Having reviewed the record with a particular focus on the judge's jury instructions, we conclude there was no "significant possibility that the jury may have based" the ABDW and assault and battery convictions "on the same act or series of acts." Kelly, supra. In instructing the jury on the three separate counts of ABDW, the judge clearly stated that the jury "must consider and decide each indictment separately" before instructing on the elements of assault and battery. The jury's understanding that different convictions must be based on separate facts is evidenced by the defendant being convicted only of ABDW, shod foot, while being acquitted of the remaining ABDW charges. That, plus the ample additional evidence to support the assault and battery conviction beyond the shod foot evidence, supports the conclusion that there was no "significant possibility" the convictions stemmed from the same act, and certainly no substantial risk of a miscarriage of justice.

2. Medical records. The defendant further asserts that the judge erred in failing to redact a notation made by Dr. Cohen on the victim's medical records that indicated that the victim had a contusion on her abdomen. As provided in G. L. c. 233, § 79, as appearing in St. 1957, c. 200, "[r]ecords kept by hospitals" shall be admissible "so far as such records relate to the treatment and medical history" of the patient. "Such records are presumed reliable because they are made by medical professionals 'charged with the responsibility of making accurate entries ... relied on in the course of treating patients.' " Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 728 (2016), quoting from Bouchie v. Murray, 376 Mass. 524, 528 (1978). We review the judge's determination that the notation in question was admissible for abuse of discretion. See Commonwealth v. Rosa, 468 Mass. 231, 237 (2014) ; L.L., 470 Mass. at 185 n.27.

The defendant maintains that the questioned notation lacked "the characteristics justifying the presumption of reliability" that justifies the records' admissibility. We disagree. The notation was made on a form filled out by Dr. Cohen titled "[e]mergency [p]hysician [r]ecord," and can be found in a section titled "[c]linical [i]mpression." We are unpersuaded by any argument that this notation was not directly related to the treatment of the victim, and conclude therefore that the judge's admission of the notation was well within the reasonable range of alternatives. See ibid. See also Commonwealth v. Dyer, 77 Mass. App. Ct. 850, 854 (2010).

3. Joinder. The prosecution successfully moved for the defendant's witness intimidation indictment-which arose approximately two months before the start of trial-to be joined with the battery indictments as related offenses. Joinder of related offenses is permitted under Mass.R.Crim.P. 9(a)(1), 378 Mass. 859 (1979), and "[t]he decision whether to join offenses for trial is a matter left to the sound discretion of the judge, ... and will not be reversed unless there has been 'a clear abuse of discretion.' " Commonwealth v. Pillai, 445 Mass. 175, 179-180 (2005), quoting from Commonwealth v. Walker, 442 Mass. 185, 199 (2004). The burden is on the defendant to show prejudice "from a failure to sever." Commonwealth v. Zemtsov, 443 Mass. 36, 43 (2004). "Factors a judge may consider in determining whether offenses are related include factual similarities ... and closeness of time and space." Pillai, supra at 180.

The defendant's indictment for witness intimidation stems from his contact with the victim outside the courthouse on the morning of a previously scheduled trial date for his attacks on the victim. At that time he told the victim to leave and pleaded with her not to testify against him. While the witness intimidation indictment came about two years after the original charges, it was fundamentally connected to the assaults and related directly to the victim's impending testimony at that trial. As such, we discern no abuse of discretion in the judge's decision to join the witness intimidation indictment. See, e.g., Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 617 (2007) (witness intimidation charges stemming from phone calls made to victim nearly two months after assault were joined because "the two offenses are related because they represent a series of events involving the same two individuals and stemming from the[same] incident").

4. Late disclosure. The defendant claims he was prejudiced by the Commonwealth's delayed disclosure of the following: (1) a photocopy of an envelope containing a letter sent by the defendant to the victim; (2) Nurse Ouellette, who had not been mentioned at the pretrial conference and was not on the witness list, as a witness; and (3) alleged promises made by a victim witness advocate to the victim contingent on her testimony.

As a general rule, during the discovery process, the Commonwealth is required to provide the defense with the names of its prospective witnesses and "[m]aterial and relevant police reports, photographs, tangible objects, [and] all intended exhibits," among other things. Mass.R.Crim.P. 14(a)(1)(A)(vii), as amended, 442 Mass. 1518 (2004). In the event of a delayed disclosure, the burden is on the defendant to show that he was prejudiced by the delay itself, "not the likely impact of the nondisclosed evidence." Commonwealth v. Almeida, 452 Mass. 601, 609 (2008), quoting from Commonwealth v. Stote, 433 Mass. 19, 23 (2000). See Commonwealth v. Brien, 67 Mass. App. Ct. 309, 310 (2006). "[Delay] alone does not constitute prejudice." Stote, supra.

The defendant has failed to establish that he was prejudiced by any late disclosure, simply arguing that his defense was "materially hurt in its preparation by having to meet [the] unexpected [evidence]" which "may have contributed to the verdict." Commonwealth v. Eneh, 76 Mass. App. Ct. 672, 678 (2010), quoting from Commonwealth v. Gilbert, 377 Mass. 887, 895 (1979). He makes no persuasive argument as to "how receiving this information earlier would have affected his preparation of the case and did not move for a continuance, thus undermining his assertion that counsel was unable to prepare properly." Commonwealth v. Molina, 454 Mass. 232, 237 (2009).

The envelope had contained a letter allegedly written by the defendant to the victim. The letter was already known to both parties. The defense challenged the envelope's authenticity; however, it provided a return address, which corroborated that the letter was written by the defendant. In response, the judge offered the defendant a continuance and funds to seek a handwriting expert. The defense declined, instead telling the judge that the only remedy sought as it related to the envelope was exclusion, and once the judge admitted the envelope, the defendant entered a joint stipulation regarding its authenticity. See Commonwealth v. Sanchez, 405 Mass. 369, 377 (1989) (defendant is bound by stipulation "unless [a judge] vacates it as improvident or not conducive to justice"). As the defendant declined the judge's offers to alleviate any prejudice that could have stemmed from the late disclosure, and bearing in mind that the authenticity of the envelope was not a determinative issue in this case, we conclude there was no prejudice stemming from the late disclosure. See Stote, supra; Molina, supra.

Similarly, the defendant argues that he was prejudiced by the Commonwealth's failure to disclose Oullette as a witness until the day that he testified. We note that "[a] judge has 'significant discretion in deciding whether ... late-disclosed witnesses should be excluded from testifying' as a remedy for late disclosure. ... The relevant inquiry is whether the defendant has sufficient time to investigate the proposed testimony." Commonwealth v. Carter, 475 Mass. 512, 519 (2016), quoting from Commonwealth v. Nolin, 448 Mass. 207, 225 (2007). At trial, the defendant asserted that Oullette's notes on the medical records were illegible, and therefore the defense was unable to properly prepare for his testimony. In response, the judge granted the defense time to interview Oullette prior to his testimony, and limited his testimony to only those portions of the record that he specifically wrote. We agree with the judge that the defense "should have been noticed" that Oullette was a potential witness. That notwithstanding, we conclude that the judge took measures to alleviate the possible prejudice that stemmed from the late notice, and that there was no abuse of discretion. See Carter, supra.

Judgments affirmed.

      He was acquitted of assault with intent to murder, intimidation of a witness, and two additional counts of assault and battery by means of a deadly weapon upon a pregnant person.

      When the victim first mentioned that she thought she may be pregnant, the defendant said that he did not want her to have a child of his because of her previous relationship with his late brother and the impact that would have on his family.

      The day in question, March 6, 2013, was one of many days the trial was scheduled to begin before being continued.

      Dr. Cohen was available on the original trial date, but the case was delayed because there was no available session. After an additional week delay, he informed the Commonwealth that he would no longer be available if the trial did not happen that week. Before ultimately allowing Oullette to testify despite his not being listed as a potential witness, the judge noted that in her experience, doctors "can be incredibly difficult to schedule."

      The defendant was convicted of the ABDW, shod foot charge and acquitted of the other two ABDW charges.

      Beneath "clinical impression" in the victim's medical records, Dr. Cohen circled "contusion" and noted next to it "abd" to indicate abdomen.

      Rule 9(a )(1) provides: "Two or more offenses are related offenses if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan."

      While we need not reach the issue of prejudice, we note that the defendant did not meet his burden of showing that he was prejudiced by the joinder. Notably, he was acquitted of the witness intimidation charge, and this conversation would have been admissible as consciousness of guilt evidence regardless. See Pagels, supra at 617. As such, the defendant would be unable to establish "that the prejudice from joinder was 'so compelling that it prevented him from obtaining a fair trial.' " Commonwealth v. Vital, 83 Mass. App. Ct. 669, 675 (2013), quoting from Walker, supra at 200.

      The defendant claims that the victim had an immigration case pending at the time of the defendant's trial and was advised by her attorney that copies of the police reports relating to her assault would benefit her in that matter. The defendant alleges that the victim sought those records and was informed by a victim witness advocate that she could only receive them if she testified against the defendant. As there is insufficient evidence on this record to suggest any such agreement existed in the first place, the argument lacks merit and need not be discussed further. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

      The letter, translated from Spanish, was essentially a string of apologies to the victim.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Luis A. TORRES.
    17-P-131
    Appeals Court of Massachusetts.
    Entered: February 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a second jury trial, the defendant, Luis A. Torres, was convicted of one count of violating an abuse prevention order. G. L. c. 209A, § 7. In this consolidated appeal, he argues that the trial judge abused his discretion in denying his motion for a mistrial, which the defendant had sought after the Commonwealth's sole witness made two improper references to the defendant's previous incarceration. We affirm.

Background. We summarize the relevant facts as the jury could have found them. In March, 2013, the defendant's former girl friend applied for and received an abuse prevention order (order) against the defendant, which prohibited the defendant from contacting her and required him to stay away from her residence. While the order was still in effect, the defendant came to his former girl friend's apartment, knocked on her door, and waited outside. After she answered the door, she told the defendant to leave, and he complied. The defense was that the former girl friend had fabricated the story in an attempt to exact revenge against the defendant because of his engagement to another woman.

During her testimony, the former girl friend twice referenced inadmissible evidence of the defendant's prior incarceration. First, during her direct examination, in response to the Commonwealth's question asking how long she had lived with the defendant, she answered, "[F]or about a year. Then he went to jail." Second, on cross-examination, after trial counsel's vigorous questioning regarding her description of the defendant to the police when she reported the violation of the order and in response to the question, "[Y]ou didn't tell [the police] what he looked like?" she stated, "I showed him-I have-on the wall right now, I have a picture of his old inmate ID of what he looks like." Immediately following each of these statements, the judge sustained trial counsel's objections and struck the portion of the responses regarding the defendant's incarceration. Each time, he provided a curative instruction directing the jury to disregard the statements. At trial counsel's request, he further instructed the jury to disregard these comments in the final jury charge. At the close of evidence, the defendant moved for a mistrial based on these two statements. The motion was denied, and the jury returned a guilty verdict. This consolidated appeal followed.

Discussion. The trial judge did not abuse his discretion in denying the defendant's motion for a mistrial. See Commonwealth v. Cunneen, 389 Mass. 216, 223-224 (1983). The determination whether to grant a mistrial based on the jury's exposure to improper evidence is within the discretion of the trial judge. Commonwealth v. Garrey, 436 Mass. 422, 435 (2002). "A mistrial 'ought to be [declared] with the greatest caution, under urgent circumstances, and for very plain and obvious causes.' " Commonwealth v. Riberio, 49 Mass. App. Ct. 7, 11 (2000), quoting from Commonwealth v. Horrigan, 41 Mass. App. Ct. 337, 340 (1996). On appeal, we will not disturb the trial judge's decision unless it "falls outside the range of reasonable alternatives." Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015), quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

"Where a party seeks a mistrial in response to the jury's exposure to inadmissible evidence, the judge may rely on curative instructions to correct any error and to remedy any prejudice." Garrey, 436 Mass. at 435. Because "jurors are presumed to have followed the judge's instructions to disregard the evidence," Commonwealth v. Durand, 475 Mass. 657, 669 (2016), we cannot say that the trial judge abused his discretion in concluding that the corrective instructions, which he promptly gave following the witness's improper testimony, were sufficient to remedy any prejudice to the defendant. See, e.g., Commonwealth v. Amirault, 404 Mass. 221, 231-232 (1989) ; Durand, 475 Mass. at 666-669.

Judgment affirmed.

Order denying motion for new trial affirmed.

      In the first trial on the same charge, the judge declared a mistrial after the jury returned deadlocked.

      In his motion for new trial, the defendant additionally argued that the Commonwealth's witness changed her testimony without fair notice, and that the Commonwealth committed discovery violations. Because his brief raises only the trial judge's alleged error in denying his motion for mistrial, we do not pass upon his other assertions of error. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) ("The appellate court need not pass upon questions or issues not argued in the brief").

      After the first comment, the judge stated, "Reference to where the Defendant went is stricken from the record. You are not to-you are to disregard it and to pay no attention to it, Jurors." After the second comment, he stated, "The jury is instructed to pay no attention to what type of identification it is that this gentleman's picture was on. That is not relevant to this case at all. I want you to disregard it, please." In his final instructions to the jury, he stated:
      "You also heard testimony that suggested that Mr. Torres may have been incarcerated. That comment was improper and I struck it from the record. You are to completely disregard that testimony, as I have stricken it from the record. Thus, you may not use it in any way during your deliberations. You must strike it from your minds."

      The defendant also argues that the prosecutor improperly appealed to the jurors' sympathy during closing argument when he referenced the fact that the former girl friend cried during her testimony. Because trial counsel had pointed to the former girl friend's crying in his closing to support his argument that she was still emotionally invested in the relationship, the Commonwealth's response to this attack on the witness's credibility was permissible. Commonwealth v. Monzon, 51 Mass. App. Ct. 245, 253-254 (2001).


text:
    Mohammad ESKANDRI v. Vickie DILLS.
    17-P-54
    Appeals Court of Massachusetts.
    Entered: February 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff (tenant) entered into a one-year lease agreement with the defendant (landlord) and paid a $1,600 security deposit. Within thirty days after the tenant vacated the property, the landlord sent him a letter with an itemized list of alleged damages to the property. Because the amount of the alleged damages exceeded $1,600, the landlord did not return any portion of the security deposit to the tenant.

The tenant then filed suit under the Massachusetts security deposit statute, G. L. c. 186, § 15B, claiming that he was entitled to the return of his deposit, treble damages, and attorney's fees because the landlord did not sign her letter "under pains and penalties of perjury" as required by G. L. c. 186, § 15B(4)(iii), second sentence. The landlord counterclaimed for $3,910 in damages. On the tenant's motion for summary judgment, the judge concluded that, because the letter was not sworn to under pains and penalties of perjury, the landlord forfeited her right to retain the deposit and her right to bring counterclaims and was liable to the tenant for treble damages and attorney's fees. The judge thus ordered the dismissal of the landlord's counterclaims without prejudice and entry of judgment for the tenant in the amount of $4,800 plus attorney's fees, interest, and costs. The landlord appealed.

After briefing but before oral argument in this appeal, the Supreme Judicial Court decided Phillips v. Equity Residential Mgmt., L.L.C., 478 Mass. 251 (2017). As the parties agree, Phillips controls the issues before us. Specifically, under Phillips, the defect in the landlord's letter resulted in forfeiture of her rights to retain the security deposit and to bring counterclaims, see id. at 256, 258 n.16, but did not give rise to liability for treble damages and attorney's fees, see id. at 258, 261.

Accordingly, so much of the judgment dismissing the landlord's counterclaims is affirmed. So much of the judgment that awards the tenant treble damages and attorney's fees is vacated, and the matter is remanded for recalculation of the tenant's damages plus any applicable interest and costs.

So ordered.

Affirmed in part; vacated in part.


text:
    ADOPTION OF BONNIE.
    17-P-700
    Appeals Court of Massachusetts.
    Entered: February 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   After a trial, a judge of the Juvenile Court found that the child was in need of care and protection. She also found that a man whom we will call the child's putative father was unfit to assume parental responsibility for the child and that her interests were best served by terminating the putative father's parental rights. The judge committed the child to the Department of Children and Families (DCF), finding that DCF's proposed plan for adoption by the child's foster parents served the child's best interests; the judge also declined to order any posttermination visitation between the child and her putative father, leaving the question of possible visits to the prospective adoptive parents.

The putative father now appeals, arguing that the judge erred in terminating parental rights he did not possess because he did not have standing as a putative father. He also claims that, even if he had standing, there was insufficient evidence to establish his unfitness, and he has suffered legal harm as a result of the judge's decision. We agree with his first contention that, as he has not been determined to be the child's father, the Juvenile Court had no jurisdiction to hear this case and terminate parental rights he did not possess. We therefore vacate the decree.

Background. At the time of the child's birth, in February, 2015, the mother was married to a man other than the putative father. The mother's husband is listed as the father on the child's birth certificate, although the child bears the last name of the putative father. However, during the time that this matter was pending, the putative father never established his paternity of the child.

On February 13, 2015, DCF filed with the Juvenile Court a petition for care and protection of the child against the mother and putative father after the child was born prematurely, and tested positive for opioids. In January, 2016, DCF successfully amended its petition to add the legal father, the mother's husband; at that time, the judge declined to grant DCF's request to strike the putative father from the petition. Before the trial, the legal father stipulated for judgment without acknowledging paternity. In addition, also before trial, the mother stipulated to her unfitness, surrendered her parental rights, and entered into an open adoption agreement with DCF.

On October 13, 2016, the trial proceeded only as to the putative father. Although he was present at the start of the trial, he became argumentative, and, after the judge recessed to give him time to speak with his lawyer, he refused to remain in the court room and participate in the trial. At the end of the trial, despite the fact that the putative father had no legal rights to the child, the judge found him to be unfit and "order[ed] the issuance of a decree dispensing with the need for [the putative father's] consent to, or right to any notice of, any adoption, custody, guardianship or any other disposition of the subject child, pursuant to G. L. c. 119, § 26 and G. L. c. 210, § 3."

Discussion. "[A] man is presumed to be the father of a child and must be joined as a party [in any care and protection action] if: (1) he is or has been married to the mother and the child was born during the marriage, or within three hundred days after the marriage was terminated by death, annulment or divorce." G. L. c. 209C, § 6(a )(1), inserted by St. 1986, c. 310, § 16. Where, as here, the mother was married to another person at the time of the child's birth, in order for the putative father to have standing to assert parental rights, he is required to show by clear and convincing evidence that there was a "substantial parent-child relationship," or that he had not yet formed one due to action (or inaction) by the mother. C.C. v. A.B., 406 Mass. 679, 689-690 (1990). The putative father has done neither here.

The putative father makes no argument that the mother thwarted his efforts to have a relationship with the child. In addition, although DCF offered him services as if he were the child's legal father, he failed to maintain contact with DCF, failed to attend scheduled visits with the child, and has taken no responsibility for the child whatsoever. In fact, he has been incarcerated during most of the child's life (including at the time of trial). As noted, there has been no adjudication of paternity, and, given these facts, there would be no basis for one. As a result, the putative father lacks standing to assert legal rights to the child in this case. See Matter of J.S.V., 402 Mass. 571, 575 (1988) ("As a matter of due process, an unmarried, putative father has no absolute due process right to notice, and opportunity to be heard, before the child may be adopted"). Therefore, the court lacked jurisdiction to hear this case and to terminate parental rights the putative father did not possess. For that reason, we vacate the decree.

So ordered.

Vacated.

      On the birth certificate, the child's last name is spelled slightly differently than that of the putative father.

      Because we reach this conclusion, we find it unnecessary to address the putative father's other arguments.


text:
    K.O. v. J.S.
    17-P-583
    Appeals Court of Massachusetts.
    Entered: February 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a hearing, a judge of the District Court declined to issue an abuse prevention order pursuant to G. L. c. 209A. The plaintiff, K.O., citing Callahan v. Callahan, 85 Mass. App. Ct. 369 (2014), appeals, arguing that the judge failed to apply the proper standard of proof, as outlined in that decision. We affirm.

Background. On January 27, 2017, the plaintiff applied for an ex parte abuse prevention order (order). The judge did not issue the order, but scheduled a hearing after notice. Three days later, both parties appeared, with counsel, before a different judge.

The plaintiff testified that both parties are natives of a western State, and had met while working the previous summer in the same office in Washington, D.C. They began a short dating relationship that lasted between June 11 and June 17, 2016, and ended in "[e]arly June." The plaintiff told the judge that she was seeking a restraining order against the defendant because she was "afraid of him due to actions that took place during the relationship." The plaintiff acknowledged that she has had no contact with the defendant since the relationship ended in June, 2016. However, she explained that she believed that the defendant would be transferring to the college she was attending in the Boston area. She also believed that she and the defendant would be living in the same city again during the upcoming summer, and would likely be in contact then.

In the plaintiff's supporting affidavit, she alleges two incidents of abuse that she says occurred at her apartment during the parties' relationship. Specifically, on one occasion, during sexual intercourse, the defendant bit her lip, producing a black and purple bruise, and also "forced his fingers inside of [her], not stopping when [she] cried out in pain." The plaintiff also testified that, three days later, again during intercourse, the defendant pulled her hair, forcing her head back, and placed his other hand on her throat, "choking" her. She "was unable to speak, but clawed at [the defendant]'s hand and arm trying to make him stop." In response, the defendant removed his hand from her hair and put it "around" her neck together with the hand already there. After this, the plaintiff asked the defendant to leave her apartment, and he did.

The day after the second incident, the plaintiff told the defendant that they "needed to talk before anything else happened"; during a telephone conversation that day the defendant ended the relationship. The plaintiff testified that the incidents have caused her to suffer from anxiety, making her "afraid of human contact in such a nature. And it's just kind of followed [her] since." She also testified that, after their meeting, she tried to avoid the defendant at work. She stated that she was then seeking a restraining order because she was still afraid of the defendant.

The defendant also testified, and confirmed that the relationship had lasted a little more than a week; he stated that the parties had "sex on a couple of occasions." He denied that he had caused the plaintiff any physical harm, and stated that he had made certain that, prior to having sexual relations, "consent was very clear." He stated that, had there been "[a]ny sort of indication that [he] received from her, pain, [he] would-you know, [he] would have absolutely backed off," and that he received no "verbal dis-consent or anything that would have-would have expressed that she was in pain or discomfort." The defendant stated that, each time after the parties had sexual relations, the plaintiff's "attitude towards [him] didn't change at all." He also offered in evidence text messages from the plaintiff dated June 19, 2016, three days after the second incident, the day that the plaintiff and the defendant met in person.

The defendant testified that he had agreed to meet the plaintiff on June 19, 2016, to explain why he ended the relationship; he told her that he was "going through some emotional things at the time and [he] didn't want to enter into any sort of relationship or dating relationship where one of us would be emotionally vulnerable or the other one of us would be emotionally vacant. And so [he] wanted to call it off as soon as possible. And so [they] met." According to the defendant, the plaintiff would not accept his explanation, and instead tried to dissuade him from ending the relationship. When the conversation became "cyclical" he "excused himself after [the parties] agreed that there was nothing else that either party had to contribute to the conversation." The defendant also testified that he did not intend to transfer to the plaintiff's school.

After hearing the testimony and reviewing the evidence, the judge found that the plaintiff's "fear [was] not a reasonable fear based on the circumstances after the incidents" and, as a result, declined to issue the restraining order. In the judge's view, the circumstances in Callahan, supra, differed from those here; specifically, the judge stated that, in this case "[t]here were incidents that occurred. I'm inferring that the incidents, if not consensual, when [the plaintiff] asked [the defendant] to leave he left, that [the plaintiff] sought him out after that for a conversation, an explanation." The judge concluded that she understood that the plaintiff was "more than uncomfortable and not wanting to see [the defendant] again, and that [she's] afraid that [she] may see him and probably will see him in Washington again, but I'm finding that that is not a basis for me to-and it's not to extend a restraining order, it's for me to allow an initial restraining order." The plaintiff timely appealed.

Discussion. "Whether seeking an initial abuse prevention order under G. L. c. 209A or a later extension, the burden is on the plaintiff to establish facts justifying issuance, or continuance, by a preponderance of the evidence." Callahan v. Callahan, 85 Mass. App. Ct. at 372, citing Iamele v. Asselin, 444 Mass. 734, 736 (2005). In doing so, the plaintiff must prove "that the defendant has caused or attempted to cause physical harm, committed a sexual assault, or placed the plaintiff in reasonable fear of imminent serious physical harm." MacDonald v. Caruso, 467 Mass. 382, 386 (2014). See G. L. c. 209A, § 3. "In acting on an original G. L. c. 209A application ..., a judge has wide discretion, and can properly take into account the entire history of the parties' relationship ...." Smith v. Jones, 75 Mass. App. Ct. 540, 544 (2009) (citation omitted).

The plaintiff argues that the judge should have found that the defendant caused her physical harm or forced her to have sexual intercourse, and that this "abuse" warranted the issuance of an abuse protection order under G. L. c. 209A, §§ 1 and 3. Relying on Callahan, the plaintiff argues that the judge misapplied the standard in declining to issue the requested order; she claims that she was seeking the order under subsections (a ) and (c ) of the "abuse" definition, not under subsection (b ), requiring her to prove that the defendant had "plac[ed her] in fear of imminent serious physical harm." G. L. c. 209A, § 1.

It is true that, in Callahan, we held that a plaintiff may be granted an extension of an existing abuse prevention order based on past abuse; "a judge may reasonably conclude [in extending an existing order] that there is a continued need for the order because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent because the perpetrator is incarcerated." Callahan, supra at 374, citing Vittone v. Clairmont, 64 Mass. App. Ct. 479, 489 (2005).

However, the Callahan facts are distinguishable from those in this case. In Callahan, the plaintiff was seeking an extension of an expiring order which had been issued based on a judge's previous finding that the plaintiff suffered physical abuse at the hands of her then husband. Id. at 375. Here, in contrast, the judge did not find the plaintiff's allegations of abuse credible, noting that she "sought [the defendant] out" after the alleged incidents occurred "for a conversation, explanation." The judge's endorsement on the (not issued) abuse prevention order stated, "After lengthy hearing the R.O. Denied-The contact was consen[s]ual-the Plaintiff reached out to [the defendant] after incident; the plaintiff states she is afraid but that is insufficient basis to allow R.O." At oral argument, the plaintiff claimed that the judge's endorsement was ambiguous. She argued that, in writing "contact was consensual" the judge was referring to the contact made by the plaintiff after the incidents. We disagree. Fairly read, we are satisfied that the judge found that the sexual contact during the alleged incidents was consensual.

As a result, we discern no error. Because the judge's findings of fact are based on credibility assessments and inferences drawn therefrom, findings that are uniquely within her province, we will not disturb them on appeal. Commonwealth v. Boucher, 438 Mass. 274, 275-276 (2002). See Mass.R.Civ.P. 52(a), as amended by 423 Mass. 1402 (1996).

Order denying abuse prevention order affirmed.

      On the plaintiff's redirect examination, she confirmed that she had consented to some of the "activities," but that she clearly expressed to the defendant when she did not consent.

      The plaintiff testified that she met with the defendant on June 19, 2016, because she "wanted to know why what happened had happened," but she felt he never offered her an explanation; she agreed to "meet in a public place" because she "was afraid for [her] safety at that point, but [she] thought [she] deserved an explanation."

      The judge acknowledged that she understood the plaintiff's argument that the impact of the initial harm is what is relevant under Callahan.


text:
    COMMONWEALTH v. Edwin J. DOBSON.
    15-P-1024
    Appeals Court of Massachusetts.
    Entered: February 20, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On November 25, 2016, a panel of this court issued a memorandum and order pursuant to our rule 1:28, reversing an order of the District Court that had allowed the defendant's motion to suppress. Commonwealth v. Dobson, 90 Mass. App. Ct. 1117 (2016) (Dobson No. 1 ). The defendant applied for further appellate review and, on November 6, 2017, the Supreme Judicial Court remanded the matter to this court "for any reconsideration that may be warranted in light of [that] court's decision in Commonwealth v. Leslie, 477 Mass. 48 (2017)." After careful consideration, we conclude that the result is the same, although, having in mind the discussion of curtilage in Leslie, we do so for slightly different reasons.

The facts offered at the hearing on the motion to suppress are summarized in some detail in our earlier opinion. Dobson No. 1, supra. Briefly, there was evidence that a Sheffield police officer observed the defendant backing his car out of a private driveway. The defendant's car left the driveway as it was backing up, and backed across the front yard of the property, hitting and knocking over a large cement pillar. The defendant then drove over the sidewalk attempting to drive out onto Main Street, a public way. The officer followed the defendant and saw him enter a driveway four or five houses down on the same street. The officer followed into the driveway and spoke to the defendant, who was confrontational. The defendant eventually was arrested for operating a motor vehicle while under the influence of alcohol (OUI).

"In allowing the defendant's motion to suppress, the judge concluded that [the officer] did not have reasonable suspicion to follow the defendant into his driveway. He based that conclusion on the fact that the driving behavior that caught the officer's attention had occurred on private property and not on a public way or a 'place to which the public has a right of access as invitees or licensees. The driveway to a private residence [where the defendant had knocked over the pillar] is none of these.' For this reason, the judge concluded that there had been 'no civil motor vehicle infraction or criminal motor vehicle offense.' " Dobson No. 1, supra. The judge also concluded that "the driveway [area where the defendant was seized and arrested] is part of the curtilage of [his] home."

We disagreed on both points. First, after the judge decided the motion, but before our memorandum and order was issued, the Supreme Judicial Court issued its decision in Commonwealth v. LeBlanc, 475 Mass. 820, 822-823 (2016), making it clear that the element of "public way" was not necessary to prove a violation of the crime of leaving the scene of an accident after causing property damage. See G. L. c. 90, § 24(2)(a ). For that reason, we "[were] satisfied that [the officer] had reasonable suspicion to stop the defendant after observing him backing over [the grass in] a nearby yard, hitting and knocking over a cement pillar, and then driving over the sidewalk in order to pull onto Main Street." Dobson No. 1, supra. "Based on that suspicion, [the officer] was warranted in following and briefly detaining the defendant 'in order to "investigate the circumstances that provoke[d] suspicion." ' Commonwealth v. Butterfield, 44 Mass. App. Ct. 926, 928 (1998), quoting from Berkemer v. McCarty, 468 U.S. 420, 439 (1984). [The officer's] observations while questioning the defendant about the property damage he had witnessed gave [the officer] probable cause to believe that the defendant was impaired from alcohol, prompting the field sobriety tests. See Butterfield, supra." Dobson No. 1, supra.

"Because the parties had argued the motion to suppress largely on the issue whether the defendant's driveway was part of the curtilage of his residence, the judge also addressed that issue, so that we would have the benefit of his findings. In so doing, the judge found that the defendant had pulled his car to the end of the long driveway; the driveway was bordered by 'a tall stockade (privacy type) fence,' with a 'tree line' along the fence, separating the defendant's property from that of his next door neighbor on the driveway side of the house. The front door to the house faces the street and is not directly accessible from the driveway; the front door would be used by the general public. The back door is accessed from the end of the driveway, and '[i]t would appear that occupants or regular visitors would access the home from the rear door/driveway area.' Based on these facts, the judge found that the driveway area in which the defendant was 'seized' was part of the curtilage of the home, observing that 'the [defendant's] driveway area is more like the area contemplated in U[nited States ] v. Dunn, 480 U.S. 294 (1987), and Comm[onwealth] v. McCarthy, 428 Mass. 871 (1999) (proximate to a single family home, enclosed by a privacy fence, reasonably shielded from the view of neighbors or the public).' " Ibid.

Discussion. The issue on remand is whether, at the time the defendant encountered the officer in his driveway, he was within the curtilage of his property, thus affording him protection under the Fourth Amendment to the United States Constitution. " 'In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error....' Commonwealth v. Fernandez, 458 Mass. 137, 142 (2010), quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004). 'However, "[w]e review independently the application of constitutional principles to the facts found." ' [ Commonwealth v.] Warren, 475 Mass. [530, 534 (2016) ], quoting Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). Where, as here, the issue is whether a search occurred within the curtilage of a home, 'we undertake our independent review cognizant that there is no "finely tuned formula" that demarcates the curtilage in a given case.' Fernandez, supra, quoting United States v. Dunn, 480 U.S. [at] 301." Leslie, 477 Mass. at 53.

"In determining whether a particular parking area is within the curtilage of a residence, we consider four factors: '(1) the proximity of the area to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observations by people passing by.' " Fernandez, supra at 143, quoting from McCarthy, supra at 874. See Dunn, 480 U.S. at 301.

"A driveway is only a semiprivate area" and, thus, "may be private according to common law concepts of property, [but] it need not be for purposes of the Fourth Amendment." Butterfield, supra at 928, quoting from Commonwealth v. Simmons, 392 Mass. 45, 48-49, cert. denied, 469 U.S. 861 (1984). The Butterfield court went on to discuss the issue in terms of whether the defendant had a reasonable expectation of privacy in his driveway. However, in Leslie, the court, quoting from Dunn and Fernandez, analyzed the Dunn factors somewhat differently, saying, "these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration-whether the area in question is so intimately tied to the home itself that it should be placed under the home's umbrella of Fourth Amendment protection" (emphasis supplied). Leslie, supra at 55 (quotation omitted).

Following that formula in applying the Dunn factors, we conclude that the facts of the present case are distinguishable from those in Leslie and compel a different result. For example, in this case, "the photographs admitted in evidence show that, after parking, the defendant's car would have been clearly visible from the street; although a stockade fence and trees bordered the driveway along the side of it, there was 'no fence at all ... closer to the street [in front of the driveway].' In front of the house, the photographs admitted in evidence show a low picket fence, coming to the height of the bottom of the front porch of the house. As a result, neighbors and passersby had a full view of the property, at least from the street running in front of it. The walkway leading to the back door (on which the defendant testified he was standing when confronted by [the officer] is a pathway that, as the judge determined, a regular visitor would access to reach the back door." Dobson No. 1, supra.

We apply the Dunn factors specifically to the present case as follows.

Proximity. In Leslie, "[t]he porch was physically connected to the home itself, and as the Court in [ Florida v.] Jardines, [569 U.S. 1 (2013),] noted, '[t]he front porch is the classic exemplar of an area adjacent to the home and "to which the activity of home life extends." ' Jardines, [569 U.S. at 7 ], quoting Oliver [v. United States ], 466 U.S. [170,] 182 n.12 [1984]. Although [in that case] the sawed-off shotgun was found under the porch area, the side yard was very close in proximity to the porch and, by extension, the house. This factor weighs in favor of a determination that the porch and side yard were part of the home's curtilage." Leslie, supra at 55-56. In the present case, the driveway ran alongside the house. It was not far away, but it could not reasonably be said to be an area "to which the activity of home life extends." Ibid. Lacy Price, the codefendant in Leslie, was the resident of the home and was receiving his guests on the porch. There is no indication here that the defendant's driveway was used for anything other than parking his car and the cars of anyone visiting his house. This factor is neutral.

Enclosure. In Leslie, "[t]he front yard was enclosed with a chain link fence and the left border of the front yard was enclosed with a large wooden fence about five to six feet away from the porch where the sawed-off shotgun was recovered. Additionally, the chain link fence enclosed both the house and the porch area, allowing the inference that the porch and side yard 'should be treated as an adjunct to the house.' Dunn, 480 U.S. at 302." Leslie, supra at 56. Here, the yard was partially fenced, but the view of the driveway was wide open. This factor is also neutral.

Nature of use. In Leslie, the record reflected "that the defendants were using the porch as an extension of Price's home. Price waited for his guests on the porch as they arrived, and the five men were on the porch and in the front yard for the entirety of the visit. Price used the porch area as an extension of his living room, to greet and entertain guests." Ibid. Again, there is no indication in the present case that the defendant was using his driveway in any such manner. This factor favors a determination that the driveway was not part of the curtilage of the defendant's home.

Steps taken to protect from observation. In Leslie, "steps were clearly taken to obscure the view of the side yard and the area under the porch where the sawed-off shotgun was found. A large blue recycling bin was placed in front of the area, which obstructed the view from the street. Additionally, the large wooden fence obscured the view of the area from the left side of the yard where the sawed-off shotgun was found. Although Detective Griffin testified that the fence in the front yard did not obstruct his view completely, his testimony established that he could not see what Leslie was manipulating under the porch because his view from the street was obscured." Ibid. Here, while the driveway is bounded on one side by the house and on the other by a fence, there were no apparent efforts to conceal the driveway, the defendant's car, or his person in the driveway from anyone on the street. This factor also favors a determination that the driveway was not part of the curtilage to the defendant's home.

Apart from the Dunn factors, this case is significantly different from both Leslie and Jardines, for at least two other reasons. In Leslie, the court, citing Jardines, "explained [that] a police officer, like any other citizen, has an implied license to walk up the path to the front door of a home and knock on the front door. That license, however, is limited in scope, purpose, and duration.... Here, Detective Griffin and the other officers were entitled to open the front gate, walk up the path and onto the porch, and engage Price and his guests in conversation. In veering off the path and venturing into the side yard of the home for the purpose of conducting a search for the weapon, Detective Griffin engaged in the precise conduct that Jardines found offensive to the Fourth Amendment. See [Jardines, supra at 9] ('the background social norms that invite a visitor to the front door do not invite him there to conduct a search'). Just as the police officers in Jardines exceeded the scope of their license when they used a drug-sniffing dog to search the front porch, here Detective Griffin had neither express nor implied license to search the side yard and porch area. See id. at [10] ('their behavior objectively reveals a purpose to conduct a search, which is not what anyone would think he had license to do')." Id. at 57. The officer in the present case did no more than pull into the driveway and attempt to engage the defendant in conversation-at least until the defendant confronted him and, in so doing, gave the officer probable cause to arrest him for OUI. In particular, the officer did nothing comparable to looking under the porch-or bringing a drug dog to sniff for drugs.

Another important distinction is that, in Leslie, the court did not consider the issue whether the officers had probable cause and exigent circumstances for their search because the Commonwealth had not argued that issue below. Id. at 58. In the present case, the Commonwealth argued in its memorandum in opposition to the defendant's motion to suppress that, at the time that the officer entered the defendant's driveway, he had probable cause to arrest him for leaving the scene of an accident after causing property damage and negligent operation of a motor vehicle.

Specifically, the officer here observed the defendant driving erratically, apparently damaging property, and then driving away. The officer did not know the defendant's name or know that the driveway the defendant entered was his own. It was reasonable, therefore, for the officer to pull into the driveway behind the defendant in order to identify him and to conduct a threshold inquiry. Soon after he began the threshold inquiry, the defendant's impairment became obvious and the officer then also had probable cause to believe that the defendant, whom he had seen driving, was under the influence of alcohol.

As the Commonwealth argues, these facts are very similar to those in Butterfield, 44 Mass. App. Ct. at 928 ("The record indicates that Officer Miller parked his cruiser on the roadway and proceeded into the defendant's driveway. Officer Miller asked the defendant, who was on the walkway and within ten to fifteen feet of the back door, to return to the driveway. The defendant refused but answered Officer Miller's questions. Officer Miller walked toward him to continue the questioning until he was within a couple feet of the defendant. During part of the questioning, the defendant was leaning against his house"). There, "[w]e conclude[d] that Officer Miller did not intrude upon a legitimate expectation of privacy by entering the defendant's driveway." Id. at 929.

Finally, the language in the various cases that have analyzed the scope of what an officer may do in "hot pursuit" of someone fleeing is useful here. The cases are not precisely on point because there is no evidence here that this defendant knew that the officer was following him. Nonetheless, some of the same considerations should apply. In Commonwealth v. Jewett, 471 Mass. 624 (2015), the arresting officer had probable cause to arrest the defendant for reckless operation of a motor vehicle, a "jailable" offense. Id. at 629. The court "conclude[d] that hot pursuit of an individual suspected of committing a jailable misdemeanor such as in this case is permissible." Id. at 633. This was so, even though the officer pursued the defendant into his home. As the court explained, "[e]stablishing a bright-line rule prohibiting the warrantless entry of a home when the underlying offense is of lesser magnitude than a felony would send an unacceptable message to the defendant who 'drinks and drives that a hot pursuit or an arrest set in motion can be thwarted by beating police to one's door.' [ State v.] Paul, [548 N.W.2d 260,] 267 [ (Minn. 1996) ]. We decline to adopt such a rule, which runs directly counter to sound public policy. 'Law enforcement is not a child's game of prisoners base, or a contest, with apprehension and conviction depending upon whether the officer or defendant is the fleetest of foot.' State v. Ricci, 144 N.H. 241, 245 (1999), quoting State v. Blake, 468 N.E.2d 548, 553 (Ind. Ct. App. 1984). Moreover, such a categorical distinction would arbitrarily permit perpetrators of serious misdemeanors 'to avoid punishment merely because of how the legislature had labelled an infraction.' Paul, 548 N.W.2d at 267. Rather, limiting the hot pursuit exception to felonies and jailable misdemeanors appropriately balances the constitutional protections of both the Fourth Amendment and art. 14 [of the Massachusetts Declaration of Rights] with society's interest in apprehending individuals suspected of serious crimes." Jewett, supra at 634. See Commonwealth v. Martin, 91 Mass. App. Ct. 733, 738-742 (2017).

We are persuaded that the same analysis is applicable here. That is, a police officer who observes a person commit a jailable offense, whether felony or misdemeanor, should be permitted to follow that person, at least into his driveway, in order to identify the individual and make further inquiries.

The order allowing the defendant's motion to suppress is reversed.

So ordered.

Reversed.

      In pertinent part, the statute provides, "Whoever ..., without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property ... shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both." G. L. c. 90, § 24(2)(a ).

      We also noted that, "[b]ased on the facts found by the judge, and considering the defendant's erratic driving, which was not contested, [the officer] reasonably could have suspected the defendant of more than one crime; in addition to leaving the scene of an accident after causing property damage, the defendant could have been suspected of wanton destruction of personal property, as the Commonwealth argued in its motion to reconsider, or operating a motor vehicle while under the influence of alcohol." Dobson No. 1, supra.

      "In Dunn, the United States Supreme Court concluded 'that the [defendant's] barn and the area around it lay outside the curtilage of the house' (emphasis added). Dunn, supra at 296. In McCarthy, the court 'conclu[ded] that the visitor's parking space [in the defendant's apartment parking lot] is not within the curtilage of the defendant's apartment.' McCarthy, supra at 875." Dobson No. 1, supra.


text:
    Shannon EWING v. Patty DAVENPORT-MELLO & others.
    17-P-429
    Appeals Court of Massachusetts.
    Entered: February 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      In her individual and official capacities.

      Paul Caratozzola, Linda M. Farag, and Massachusetts Partnership for Correctional Healthcare (MPCH), all in their individual and official capacities.

   The plaintiff, who at all relevant times was an inmate in the custody of the Massachusetts Department of Correction, filed this action under 42 U.S.C. §§ 1983, 1985, and 1988 alleging that the defendants violated, and conspired to violate, his civil rights by acting with deliberate indifference to his medical needs. A Superior Court judge dismissed the complaint under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), for failure to state a claim upon which relief can be granted. The plaintiff appeals.

The complaint alleges the following facts, which we accept as true. See Goodwin v. Lee Pub. Schs., 475 Mass. 280, 284 (2016). On October 10, 2015, the plaintiff was denied his "Medically approved" "diabetic Snack when he tried to obtain his meal." That same day he "contacted the C/O [correction officer] who was assigned to cover the Inmate Dining Hall" and " '[J]eremy' the Nurse," asking "about the Plaintiff not being able to receive [sic ] his diabetic snack in the A.M. as he always did in the Morning for three (3) Years." Although "[t]he Nurse said he would look into the matter," the plaintiff did not receive a reply. The plaintiff then filed a grievance, which was denied "as Non-Grievable" by MPCH unit director Paul Caratozzola. The plaintiff appealed the denial to MPCH grievance coordinator Linda Farag. When Farag did not respond for several weeks, the plaintiff wrote a letter to MPCH nursing director Patty Davenport-Mello, asking "for her assistance in the plaintiff receiving [sic ] a response to his filed Grievance." Several days later, the plaintiff received "the appealed [sic ] Grievance from ... Farag and ... Davenport-Mello['s] letter the Plaintiff wrote to her."

Were we to construe these allegations as challenging a one-time denial of the plaintiff's diabetic snack on October 10, 2015, we would agree with the judge that they do not " 'plausibly suggest[ ]' ... an entitlement to relief" under 42 U.S.C. § 1983. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). To prove deliberate indifference, the plaintiff would have to show that the defendants' conduct constituted "an unnecessary and wanton infliction of pain," "repugnant to the conscience of mankind." Estelle v. Gamble, 429 U.S. 97, 105-106 (1976). See Langton v. Commissioner of Correction, 34 Mass. App. Ct. 564, 572-573 (1993) ; Torraco v. Maloney, 923 F.2d 231, 235 (1st Cir. 1991) ; DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir. 1991). The plaintiff would have no plausible claim that the defendants acted with culpability rising to this level if the basis of his complaint is that he was denied his diabetic snack on a single occasion on October 10, 2015, and the defendants denied his subsequent grievance.

Even under the tightened pleading standards of Iannacchino, however, we must construe complaints liberally and in a manner that "do[es] substantial justice." Mass.R.Civ.P. 8(f), 365 Mass. 749 (1974). Cf. Cannonball Fund, Ltd. v. Dutchess Capital Mgmt., LLC, 84 Mass. App. Ct. 75, 99 (2013). A liberal reading of this complaint permits an inference that the plaintiff is alleging that the officials charged with his medical care are depriving him of necessary treatment on an ongoing basis. Indeed, in their motion to dismiss, the defendants asserted that it was unclear from the complaint whether "the diabetic snack was only denied on October 10, 2015, or if the alleged denial of this diabetic snack is ongoing." Although the defendants argued that, either way, the plaintiff cannot establish that his diabetic snack is a serious medical need, their argument does not apply the correct pleading standard. To withstand a motion to dismiss, a complaint "does not need detailed factual allegations," but only allegations that "raise a right to relief above the speculative level." Iannacchino, 451 Mass. at 636, quoting from Bell Atl. Corp., 550 U.S. at 555. Contrary to the defendants' assertions, therefore, the plaintiff was not required to allege that he was "medically diagnosed with diabetes" or that "a physician had previously prescribed him a diabetic snack." It was sufficient at the pleadings stage that he alleged that the diabetic snack was "Medically approved." Thus, we conclude that the plaintiff has set forth sufficient allegations to state a claim under § 1983.

The claim under § 1985 stands on different footing, however. The complaint does not allege facts plausibly suggesting the existence of a conspiracy fueled by some "class-based, invidiously discriminatory animus." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268 (1993) (quotation omitted). Knowlton v. Shaw, 704 F.3d 1, 12 (1st Cir. 2013). The § 1985 claim was therefore properly dismissed.

Accordingly, so much of the judgment as dismissed the claim under 42 U.S.C. § 1985 is affirmed. In all other respects, the judgment is reversed.

So ordered.

Judgment reversed.

      The defendants could have moved for a more definite statement under Mass.R.Civ.P. 12(e), 365 Mass. 754 (1974), but did not do so.

      Although the defendants are correct that there is no respondeat superior liability under § 1983, MPCH could still be held liable for any unconstitutional acts of the individual defendants if those acts "may fairly be said to represent official policy." Monell v. Department of Social Servs. of the City of N.Y., 436 U.S. 658, 694 (1978). Blackburn v. Snow, 771 F.2d 556, 571 (1st Cir. 1985).

      Our memorandum and order pursuant to rule 1:28 previously issued in this case has been vacated, and this decision has been substituted.


text:
    Lawrence SULLIVAN v. SUPERINTENDENT, DEPARTMENT OF STATE POLICE & another.
    16-P-1650
    Appeals Court of Massachusetts.
    Entered: February 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Executive Office of Public Safety and Security.

   The defendant superintendent (colonel ) of the Department of State Police (department) appeals after a Superior Court judge allowed the motion of the plaintiff, Trooper Lawrence Sullivan, for judgment on the pleadings. Concluding that "no substantial evidence" existed to support an order approved by the colonel that denied Sullivan's application for line-of-duty injury benefits (ILD), the judge decreed that "Sullivan shall be entitled to 424 hours of [ILD] time and not have it deducted as sick time." We affirm, albeit on a different ground. See Gabbidon v. King, 414 Mass. 685, 686 (1993) ("[O]n appeal, we may consider any ground apparent on the record that supports the result reached in the lower court").

Background. While Sullivan was on duty on October 14, 2014, his clipboard slid off of the passenger seat of his cruiser. From the driver's seat, he reached around the computer mounted on the console, to the passenger side floor. Immediately, he felt a sharp pain in his back. Following departmental rules, Sullivan notified his commanding officer and sought medical care from his personal physician. His doctor diagnosed "sciatica with pain down the right leg," prescribed medication for pain and inflammation, and recommended rest, to be followed by physical therapy.

Sullivan promptly submitted a claim for ILD. His commanding officer and the State police surgeon, Brian Morris, initially recommended approval of ILD and payment of Sullivan's medical expenses. After Morris's first examination of Sullivan, on October 27, 2014, Morris noted, "If he continues to have pain radiating into his right leg, an MRI [magnetic resonance imaging examination] may be needed for evaluation." After a follow-up examination on December 9, 2014, Morris reported that Sullivan had "injured his lower back while reaching for a clipboard on the floor of the passenger side of his cruiser" and was "making good progress." Morris recommended "that [Sullivan] be approved for up to [six] more weeks of physical therapy."

Meanwhile, on November 17, 2014, Sullivan underwent an MRI of his lumbar spine. At some point, presumably after the follow-up examination, Morris received Sullivan's MRI results. On January 13, 2015, just three days before Sullivan returned to work on full-duty status, the department's board on claims (board) convened to review Sullivan's ILD request. The board disapproved Sullivan's claim based on Morris's review of Sullivan's MRI results. Reversing his earlier recommendations, Morris now concluded that Sullivan's pain was not the result of a work-related back injury, but rather the result of Sullivan's preexisting back conditions, which included degenerative disc disease, degenerative joint disease, and a cyst. The board determined that the department was not responsible for Sullivan's medical expenses and that the 424 hours of ILD he had used while recuperating would be reclassified as sick leave.

Sullivan appealed the board's decision to the colonel under G. L. c. 22C, § 43, which provides any person aggrieved by an order of the department, or of a division or officer thereof, with a right of appeal to the colonel. Major James A. Jones, II, conducted the § 43 hearing as the colonel's designee. Sullivan, represented by counsel, testified and offered letters from his personal physician and his chiropractor to the effect that while Sullivan's act of bending and twisting in an awkward manner was not the original cause of his degenerative back conditions, it did exacerbate his preexisting injury, cause "presenting symptom[s]" of severe pain and swelling, and possibly cause new injury or further damage to the preexisting injury. Jones recommended sustaining the board's decision; the colonel accepted the recommendation and denied Sullivan's § 43 appeal.

Sullivan next filed a complaint seeking judicial review of the colonel's decision in the Superior Court, as provided by § 43. Acting on cross motions for judgment on the pleadings, the judge ordered judgment for Sullivan. Rejecting the department's determination that Sullivan's injury merely caused him to suffer "symptoms" of a preexisting injury, the judge concluded that "sciatica is not a symptom; ... it is an injury and it is compensable."

Discussion. Sullivan obtained judicial review of the colonel's decision under § 43, which provides in pertinent part, "Any person aggrieved by an order approved by the colonel may appeal to the superior court .... The superior court shall have jurisdiction in equity upon such appeal to annul such order if found to exceed the authority of the department." G. L. c. 22C, § 43, inserted by St. 1991, c. 412, § 22. The department contends that this language permits a Superior Court judge to disturb such an order "only if the Colonel's decision was arbitrary or capricious or otherwise unlawful," and that the judge erred by applying the substantial evidence standard of G. L. c. 30A, § 14. We need not address whether the c. 30A standard applies, however, because we conclude that the board's decision, approved by the colonel, was arbitrary and capricious.

Under the deferential standard of § 43, "[t]he decision of the board can be disturbed only if it is based on 'a legally untenable ground' ... or is 'unreasonable, whimsical, capricious, or arbitrary.' " Forsyth Sch. for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211, 218 (1989), quoting from Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277 (1969). We have described an arbitrary and capricious decision as "lack[ing] any rational explanation that reasonable persons might support." Hercules Chem. Co. v. Department of Envtl. Protection, 76 Mass. App. Ct. 639, 643 (2010), quoting from Cambridge v. Civil Serv. Commn., 43 Mass. App. Ct. 300, 303 (1997). But even a reasoned decision can be arbitrary and capricious. When an agency acts on reasons that "are related ... to an ad hoc agenda, then that agency has acted arbitrarily because the basis for action is not uniform, and, it follows, is not predictable." Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. 565, 568 (1996). "An agency should strive to act on bases that are uniform and predictable," and when it does not, it "courts scrutiny under the arbitrary and capricious standard." Hercules Chem. Co., supra.

In its brief, the department defends its decision to reject Sullivan's claim on the ground that it has a "policy" that "symptoms of a preexisting condition-if that condition was not caused by a physical injury sustained [while] actually performing police service-cannot support a claim for [ILD] benefits." As evidence of its policy, the department points to art. 8 of its rules and regulations, which establishes the board to "hear cases of claims relating to injuries incurred ... while actually performing police services." See G. L. c. 22C, § 16, inserted by St. 1991, c. 412, § 22 (authorizing colonel to allocate department's appropriated funds to pay "the reasonable hospital, medical and surgical expenses incurred by any trainee or officer of the department when temporarily or permanently disabled by reason of injuries sustained while in the course of his employment").

This language, limiting ILD benefits to injuries "incurred" or "sustained" in the line of duty, could be interpreted at the board's whim either to allow or to disallow claims such as Sullivan's, where an employee is injured on the job, but the injury causes the employee to suffer new disability from or require medical attention for a preexisting, but dormant condition. Such injuries are compensable under the workers' compensation statute, provided that the occupational injury is a major cause of the current disability. See Castillo v. Cavicchio Greenhouses, Inc., 66 Mass. App. Ct. 218, 220-221 (2006) (to qualify for workers' compensation benefits under G. L. c. 152, § 1 [7A], employee's industrial injury must be "a major cause," not just "a but-for" cause of disability from preexisting injury); Goodwin's Case, 82 Mass. App. Ct. 642, 647 (2012) (to be compensable, industrial injury must be "a" major cause, but need not be "the" major cause of disability from preexisting condition).

We need not decide whether the colonel possesses the authority to establish a policy limiting ILD to physical disabilities caused exclusively by an injury sustained in the line of duty. The department apparently has a policy, explicitly stated in art. 8, limiting ILD to "physical injuries," thus excluding coverage for mental or emotional disabilities caused by on-duty trauma. But whereas the language of art. 8 and a number of unpublished court decisions included in the record demonstrate that the exclusion of mental or emotional disabilities is the department's settled policy, nothing in the record supports the department's assertion that it has a settled policy with respect to physical disabilities like Sullivan's.

As already noted, the language of art. 8 in this regard is ambiguous. Ambiguity also exists in the department's General Order ADM-11B, entitled "Injury Reporting and Leave," which sets forth procedures for requests, review, and approval of ILD. Under these regulations, "members who have a recurrence of a previous injury," also referred to as "recurrent injuries," are initially placed on sick leave, but they may, in unspecified circumstances, be "officially approved and placed on ILD status." These procedures appear to give the board unfettered discretion with respect to the treatment of recurring injuries, inviting scrutiny for arbitrary and capricious review. See Firearms Records Bureau v. Simkin, 466 Mass. 168, 182 (2013) (absent regulations governing subject matter, individual determinations "become more susceptible to attack on the ground that they are arbitrary and capricious").

Because the department's resolution of Sullivan's claim appears to be the result of ad hoc reasoning, its action was arbitrary and capricious. Accordingly, the judge did not err in allowing Sullivan's motion for judgment on the pleadings.

Judgment affirmed.

      The colonel is the executive and administrative head of the Department of State Police. See G. L. c. 22C, §§ 1, 3.

      Morris's complete findings were as follows: "Lawrence Sullivan is the 53-year-old trooper who alleges a back injury while reaching across his cruiser console to retrieve paperwork on the passenger side floor. ... At the L4-L5 level, he has degenerative disc disease, degenerative joint disease, and a cyst. This pathology is causing his low back pain and right-sided sciatica. The degenerative changes and cyst would not be caused by bending to pick up papers; rather, these would be preexisting conditions mostly due to everyday wear and tear. For this reason, the [board] should consider denying his claim for a work-related back injury."

      The judge opined that sciatica "is a medical diagnosis; it is an extremely painful condition, characterized by often unremitting pain, and further described by the patient as if an electrical cattle prod is inserted and twisted into a particular nerve ending. The [d]epartment simply misses the point, and anyone who has had such a condition well appreciates the severity and disabling nature of such excruciating pain."

      Such disabilities are covered by workers' compensation. See G. L. c. 152, § 1(7A).


text:
    COMMONWEALTH v. Joel A. AGOSTO.
    17-P-501
    Appeals Court of Massachusetts.
    Entered: February 22, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On September 12, 2016, the defendant pleaded guilty to assault and battery by means of a dangerous weapon, witness intimidation, and two counts each of breaking and entering a building during the day with the intent to commit a felony, assault and battery on a family or household member, and violation of an abuse prevention order. He was sentenced to two and one-half years in a house of correction with six months to serve, the balance suspended for two years. His conditions of probation required him to, among other things, complete a certified batterer's intervention program (CBIP).

On November 29, 2016, a notice of probation violation issued alleging that the defendant (1) failed to attend a CBIP class; (2) failed to pay probation fees; and (3) committed a new criminal offense, namely, by failing to stay away from his mother-in-law. After a hearing, the judge found the defendant violated his probation. In his disposition, the judge added that the defendant failed to stay away from his wife as an additional ground for violation that was not included in the notice of probation violation. The judge imposed the balance of the suspended sentence. The defendant appeals, alleging that the judge erred in making each of his four findings. We affirm in part, vacate in part, and remand for resentencing.

Revocation of probation. The defendant claims that the judge abused his discretion in finding that he violated his probation based on the three grounds contained within the notice of probation violation. "A determination whether a violation of probation has occurred lies within the discretion of the hearing judge." Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014), citing Commonwealth v. Durling, 407 Mass. 108, 111-112 (1990). We determine that neither an error of law, nor an abuse of discretion occurred.

First, the defendant claims that a single missed CBIP class cannot constitute a violation of probation. We disagree. The notice of probation violation alleged that the defendant failed to attend one CBIP class on November 23, 2016. The defendant, through his attorney, stipulated to this fact during the final probation violation hearing. A probation officer testified that the defendant "was terminated from the certified batterer's program," i.e., he did not complete it. Furthermore, the judge stated that he knew "exactly where [he] was coming from when [he] gave this probation, and [he] wanted full compliance, strict compliance." Therefore, the judge's finding that the defendant "failed to attend or complete" the CBIP program was not in error (emphasis supplied). See Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976) ("Any conduct by a person on probation which constitutes a violation of any of the conditions of his probation may form the basis for the revocation of that probation").

Second, the defendant claims error in the judge's finding that he failed to pay required probation fees, without specification as to which payments were missed. We disagree. As indicated in the notice of probation violation and as the probation officer testified at the probation violation hearing, the defendant owed ninety dollars for a victim witness fee and arrears of $130 for probation supervision fees. The defendant had advance written notice of, and an opportunity to dispute, the specific payments at issue and presented no evidence to contest them. See Durling, supra at 113. Instead, the defendant, through his attorney, stipulated to the missed payments during the hearing. The judge, in his probation violation finding and disposition, checked the box next to "[f]ailed to make the following payments," followed by a line that was left blank. Even without reference to the specific payments, missing any payments would have been sufficient to constitute a violation for which the defendant could have had his sentence reinstated. See id. at 112.

Finally, the defendant challenges the finding that the defendant committed a new crime, i.e., violating an active G. L. c. 209A order, because the judge improperly relied on hearsay evidence contained in Somerville police Officer Kim's testimony. The claim is without merit. Here, the judge indicated that he found this evidence sufficiently reliable because it was provided by a disinterested witness-Kim-and was provided in circumstances that support the veracity of the source. Compare Commonwealth v. Ortiz, 58 Mass. App. Ct. 904, 905 (2003).

The defendant does not dispute that Kim was disinterested. See Commonwealth v. Henderson, 82 Mass. App. Ct. 674, 678-679 (2012). Instead, the defendant claims that the statements were unreliable because they were provided by the victim who, he argues, was not disinterested. The victim's statements, however, were not the sole evidence supporting the violation of probation finding. Kim testified to his firsthand knowledge of responding to the victim's 911 call and his independent corroboration of the victim's report by confirming that the c. 209A order was active at the time. He was also subject to the defendant's cross-examination. The judge explained on the record that he found Kim to be credible. See Commonwealth v. Hartfield, 474 Mass. 474, 484 n.8 (2016). In these circumstances, a preponderance of the evidence established that the defendant had committed a new crime. Compare Ortiz, supra at 905-906.

Stay away. In addition to the three probation violations, discussed supra, that we determine were established and justified revoking the defendant's probation, the judge also noted a fourth: the defendant's failure to stay away from his wife. Because the defendant never received notice of this alleged violation and there was no evidence introduced to support it, the judge erred in making this finding. The Commonwealth agrees.

Conclusion. So much of the order revoking probation that finds the defendant violated his probation due to failing to stay away from his wife is vacated, and in all other respects the order is affirmed. The sentence is vacated and the matter is remanded for resentencing in accordance with this memorandum and order.

So ordered.

Vacated in part and remanded; affirmed in part.

      The defendant was ordered to stay away from both his mother-in-law and his wife.

      At the hearing, the defendant argued and elicited testimony from the probation officer that he was at a "supervised meeting" at the Department of Children and Families. No evidence was introduced supporting this. It was within the judge's discretion to assess the credibility of and weigh the defendant's admission.

      This was because the defendant missed four total classes. The judge only considered the November 23 class for purposes of the violation.

      The defendant also claims that the Commonwealth was required to introduce the terms and conditions of probation in order to satisfy its burden. We disagree. The defendant cites no authority in support of his claim and, rather, asserts that the requirement "logically follows" because there must be proof of what condition the defendant violated. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In any event, the conditions that the defendant were alleged to have violated were provided to the defendant in the notice of probation violation. Moreover, the judge was free to take judicial notice of the docket, which contained the necessary information. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002). Finally, the judge who conducted the probation violation hearing was the original sentencing judge, and he was aware of the conditions he imposed. See Rubera, supra at 180.

      The defendant also appears to claim that his probation revocation was in error based on Bearden v. Georgia, 461 U.S. 660 (1983), and Commonwealth v. Henry, 475 Mass. 117 (2016). First, Henry is not applicable here because (1) the missed payments at issue were probation fees, not restitution payments, which involve different considerations, and (2) the judge was not "initially setting the ... amount" owed. Henry, supra at 122. Second, unlike in Bearden, the defendant was not "incarcerated solely because of inability to pay a fine." Commonwealth v. Gomes, 407 Mass. 206, 212 (1990), quoting from Santiago v. United States, 889 F.2d 371, 373 (1st Cir. 1989). Rather, his original sentence was reinstated for three independent probation violations.

      In light of this disposition, we express no opinion as to whether a different sentence should be imposed.