text:
    ADOPTION OF GEMMA.
    18-P-71
    Appeals Court of Massachusetts.
    Entered: November 8, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   A former foster mother (foster mother) appeals from orders by a judge of the Juvenile Court denying her second motion to intervene in care and protection proceedings involving the child, Gemma, and her motion for access to impounded case materials. The foster mother also appeals from an order of a single justice of this court denying a stay of the termination of the biological mother's parental rights. We affirm the orders.

Background. We summarize the facts of the case, relying on the factual findings by the Juvenile Court judge and the undisputed facts appearing in the record. Gemma was born in October, 2013. The next day, a Juvenile Court judge granted emergency custody of Gemma to the Department of Children and Families (DCF). DCF initially placed Gemma in the same foster home as her biological sister, but moved Gemma to the foster mother's home on November 18, 2013. After a hearing on the merits on October 30, 2014, both of Gemma's parents were found to be unfit and DCF was granted custody of the child. While the father's parental rights were terminated after the hearing, the mother's rights were not.

Some two years later, although Gemma still resided with the foster mother, the foster mother's behavior as a foster parent was becoming a source of concern. On October 14, 2016, Gemma filed a motion in the Juvenile Court seeking a finding that DCF had abused its discretion in keeping her foster placement separate from a foster home where two of her biological brothers were placed. In the motion, Gemma's counsel alleged that "multiple [ G. L. c. 119, § 51A, reports] have been filed on [Gemma's] current foster home, including allegations of physical abuse on [Gemma]." The judge held a hearing on the matter at which the foster mother testified. On November 1, 2016, the judge allowed the motion, in part, and found that DCF had abused its discretion.

Aware that this finding put Gemma's placement with her in serious jeopardy, the foster mother filed her first motion to intervene in the care and protection proceedings on November 10, 2016. She argued in the motion that Gemma would suffer "measurable harm" if their relationship was "disrupted" and also claimed to fill the role of Gemma's de facto parent. The judge denied the motion without prejudice on December 20, 2016.

Gemma then filed a motion on December 30, 2016, requesting an immediate transfer from the foster mother's home. The judge allowed the motion on January 3, 2017, relying on a DCF area clinic review team's determination that "removal of the child from the present foster home and placement in a home with two of her siblings was in the child's best interest." The judge's order required DCF to begin transitioning Gemma to her brothers' foster home immediately. The foster mother attempted to stay the removal order, but her motions were denied both in the Juvenile Court and by a single justice of this court. Gemma was relocated to her new foster home on February 6, 2017.

On April 11, 2017, Gemma's biological mother stipulated to the termination of her parental rights and entered into a postadoption contact agreement with DCF. Gemma's new foster parents were listed as the adoptive parents. Once the foster mother became aware of this development, she filed another motion to intervene on April 24, 2017. This second motion to intervene, which is the subject of this appeal, asserted a failure of an opportunity to be meaningfully heard, in violation of her due process rights under the Massachusetts Declaration of Rights, and a right to a fair hearing prior to the termination of the biological mother's parental rights. The foster mother argued that a positive result at the fair hearing could cause DCF to recommend her as Gemma's adoptive parent to the judge, which was an assertion supported by an earlier statement DCF made to this court. A full hearing on the second motion to intervene occurred on September 7 and 12, 2017. The judge denied the motion. In her order dated October 31, 2017, the judge concluded that the foster mother had "not presented her own 'direct, substantial, significantly protectable interest in the litigation,' " and that the foster mother's intervention "would only serve [the foster mother]'s interest and not those of the child." The foster mother filed a notice of appeal two days later.

In preparation for the appeal, the foster mother filed a motion with the Juvenile Court requesting "all transcripts and pleadings from October 1, 2016, through the present date [December 22, 2017,] in [Gemma]'s [c]are & [p]rotection case." The judge denied the motion on January 8, 2018, as "overly broad" and "request[ing] confidential, impounded information that [the foster mother] is not entitled to as a matter of law."

The foster mother also petitioned a single justice of this court for a stay of the termination of the mother's parental rights. The single justice denied the motion for a failure "to demonstrate ... a reasonable likelihood of success on appeal" on December 22, 2017. The foster mother filed a notice of appeal from the order of the single justice.

In January, 2018, the foster mother filed a motion with this court to docket, consolidate, and expedite the three issues now before us on appeal: the order denying the second motion to intervene, the order denying a request for transcripts, and the order of the single justice denying a stay of the termination of parental rights. The portion of the motion seeking to consolidate the appeals was allowed.

Discussion. 1. Motion to intervene. The foster mother appeals from the order denying her second motion to intervene in the underlying care and protection proceedings. "Whether the prospective intervener has met 'the requirements for intervention [as of right] is a question of law,' and therefore we review the ruling de novo." Beacon Residential Mgmt., LP v. R.P., 477 Mass. 749, 753 (2017), quoting Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 217 (2011). The judge, however "has discretion in determining whether an intervening party has demonstrated facts that entitled him or her to intervention as of right, and we accordingly review the judge's factual findings for clear error." Guardianship of B.V.G., 474 Mass. 315, 320 (2016), quoting Fremont Inv. & Loan, supra.

The Massachusetts Rules of Civil Procedure do not apply to proceedings in the Juvenile Court, but they serve as a "cogent standard." Care & Protection of Zelda, 26 Mass. App. Ct. 869, 871 (1989). See Adoption of Rory, 80 Mass. App. Ct. 454, 455 n.3 (2011) (rules of civil procedure apply by analogy in proceedings to dispense with consent to adoption). Under Mass. R. Civ. P. 24 (a), 365 Mass. 769 (1974), anyone "shall" be permitted to intervene if the moving party "(1) make[s] timely application; (2) claim[s] an interest relating to the property or transaction which is subject to the action; and (3) [is] so situated that the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect that interest." Peabody Fed'n of Teachers, Local 1289, AFT, AFL-CIO v. School Comm. of Peabody, 28 Mass. App. Ct. 410, 412-413 (1990). "[T]he trial court judge enjoys a full range of reasonable discretion in evaluating whether the requirements for intervention have been satisfied." Id. at 413. Postjudgment motions to intervene, like this one, are "seldom timely" but may be allowed "in limited circumstances of strong justification." Id.

Because we conclude that the foster mother has failed to present an interest in this case sufficient to satisfy Mass. R. Civ. P. 24 (a) (2), we need not consider whether, in fact, the motion was timely. On appeal, the foster mother raises three separate bases for intervention: a right to notice and to be heard grounded in various Federal and Massachusetts statutes and regulations, a right to a preremoval hearing, and a liberty interest in the caretaking relationship with Gemma. None is sufficient.

While a foster parent generally has a right to notice and to be heard in certain Juvenile Court proceedings, these rights are oriented toward assisting the judge in determining the best interests of the child. See Adoption of Sherry, 435 Mass. 331, 338 (2001) ("Because foster parents often possess the most detailed and the most current information available, the Legislature had good reason to permit them to be heard. The best interests of the child are served by ensuring that judges have all the relevant information about the child at their disposal ..."). However, the statutes and regulations upon which the foster mother relies are followed by an explicit statement that the right to notice and to be heard should not be construed to allow a foster parent to join proceedings as a party. See 42 U.S.C. § 675(5)(G) (2012) ("this subparagraph shall not be construed to require that any foster parent, preadoptive parent, or relative providing care for the child be made a party to such a proceeding solely on the basis of such notice and right to be heard"); G. L. c. 119, § 29D ("Nothing in this provision shall be construed to provide that such foster parent, pre-adoptive parent or relative shall be made a party to the proceeding"). Moreover, consistent with the spirit of Adoption of Sherry, supra, the foster mother was heard at different stages of the proceedings in the Juvenile Court. Indeed, there is no evidence that the judge failed to consider the foster mother's perspective in determining Gemma's best interests. See Care & Protection of Zelda, 26 Mass. App. Ct. at 874 ("the judge shall prescribe what place the applicants [seeking to intervene] ... will have in the proceeding and what steps they may take").

Likewise, given the judge's authority to decide what is in the best interests of the child, the fact that the foster mother was heard after Gemma was removed by DCF under 110 Code Mass. Regs. § 7.116(2)(c) (2009), rather than prior to removal, cannot justify intervention. The judge, in moving toward a determination of the best interests of the child, has an interest in expediency and efficiency. See Care & Protection of Zelda, supra at 872 ("Indeed, the importance of a spare and speedy course of procedure in care and protection matters has been explained too often to require further statement here"). Regardless of the status of any administrative hearing, a Juvenile Court judge has the authority to act if the child's well-being is at stake. Here, the judge found that DCF abused its discretion by not placing Gemma with her siblings and found sufficient evidence to justify an order for expedited removal. Moreover, even if a preremoval hearing had been scheduled, the result of that hearing would not constrain the judge's decision-making authority. See Adoption of Hugo, 428 Mass. 219, 226 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999) (judge has obligation to consider DCF's proposed plan but must make determination based on child's best interests). The foster mother's own interest in a preremoval hearing fails to justify intervention.

Third, and finally, the foster mother does not have a liberty interest regarding the caretaking of the child that would justify intervention in this proceeding. See Care & Protection of Zelda, 26 Mass. App. Ct. at 874-875 ("a liberty interest will not be recognized in the foster parents when the biological parents are demanding custody for themselves; indeed [barring an exceptional case] a liberty interest will be denied even when the biological parents are out of the case"). As a "claimed interest derive[d] from a knowingly assumed contractual relation with the State," the scope of any foster parent's potential liberty interest would be informed by the "expectations and entitlements of the parties." Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 845-846 (1977). While we are sympathetic to the bond that may form between a child and a foster parent, Massachusetts law is clear that foster parentage is a limited status created by contract. See Kerins v. Lima, 425 Mass. 108, 112 n.6 (1997) (foster parents are "temporary contract service providers with a defined set of rights and responsibilities that clearly differs from those of a child's parents"). That status does not give rise to a liberty interest. See Care & Protection of Zelda, supra. Because the foster mother has failed to state an interest sufficient to warrant intervention under Mass. R. Civ. P. 24 (a) (2), the judge's denial of the foster mother's second motion to intervene was not error.

2. Request for transcripts and pleadings. Next we turn to the Juvenile Court judge's denial of the foster mother's request for impounded transcripts and pleadings from the underlying care and protection proceeding. "The records from [a] care and protection proceeding, including the transcripts and exhibits from a trial to terminate parental rights, are impounded, pursuant to G. L. c. 119, § 38, and Juvenile Court Standing Order 1-84, Mass. Ann. Laws Court Rules, Standing Orders of the Juvenile Court, at 1107 (LexisNexis 2016)." Care & Protection of M.C., 479 Mass. 246, 247 (2018). However, records and reports of the Juvenile Court may be released with permission from the court. See id. at 253, citing Standing Order 1-84. Here, the judge found the foster mother's motion "overly broad" and without "a basis upon which the Court would provide the material requested to a non-party." We agree. The foster mother's request for "all" documents from the start of the abuse of discretion hearing indeed was overbroad and unwarranted. Rather than tailoring her request, the foster mother chose to appeal from the order directly. Since the foster mother was a nonparty, the judge was well within her discretion to deny the foster mother such broad access absent a valid justification for doing so. See Care & Protection of Sharlene, 445 Mass. 756, 771-773 (2006). There was no abuse of discretion.

3. Single justice order. Lastly, the foster mother appeals from the single justice's order vacating a temporary stay of the termination of parental rights. Orders by a single justice are reviewed for an abuse of discretion. Petricca Constr. Co. v. Commonwealth, 37 Mass. App. Ct. 392, 394-395 (1994). To justify a stay, there must be a "reasonable likelihood of success on appeal." Commonwealth v. Allen, 378 Mass. 489, 498 (1979). The single justice's order denied the foster mother's appeal for a failure "to demonstrate ... a reasonable likelihood of success on appeal." The foster mother, as a nonparty, had no standing to appeal the termination decree at the time of the single justice's order, and as discussed above intervention was unlikely to be successful. Again, there was no abuse of discretion.

Orders entered in Juvenile Court denying second motion to intervene and motion for transcripts and pleadings affirmed.

Order of single justice denying motion to stay affirmed.

      The Juvenile Court judge inaccurately stated that DCF received emergency custody of Gemma on December 30, 2013, but nothing turns on this discrepancy.

      According to an affidavit submitted by Gemma's counsel, there had "been many complaints and issues internally with this foster home." As early as May 30, 2014, DCF case notes show that the foster mother would refer to Gemma by a name different from her given name. At least three DCF workers tried to correct the foster mother's behavior, including a DCF supervisor in January, 2016. During one visit, Gemma told her biological mother that her name was the one used by the foster mother, and the foster mother requested that Gemma's long term daycare placement refer to her by the other name. The foster mother continued to refer to Gemma by the other name at the time of the abuse of discretion hearing on November 1, 2016.

      The statement came from a footnote in DCF's opposition to the petition requesting a stay of Gemma's removal from the foster mother's home:
      "Here it is important to note that [the foster mother] has requested a fair hearing from [DCF] and that hearing has been scheduled for February 28, 2017. Her right to a hearing is not moot because, were she to prevail [DCF] would change its decision regarding the child's placement and, in turn, present [the foster mother] to the trial court as a proposed adoptive plan at the termination of parental rights trial. However, as always, the ultimate decision on any adoption petition rests with the trial court, which may reject [DCF's] proposed plan if it is found not to be in the child's best interest."

      The foster mother cites to 42 U.S.C. § 675(5)(G) (2012) ; G. L. c. 119, § 29D ; 110 Code Mass. Regs. § 7.112(2)(f), (i) (2009); 110 Code Mass. Regs. § 7.116(2)(c) (2009); 110 Code Mass. Regs. § 7.200(6)(c) (2009); 110 Code Mass. Regs. § 10.06(5) (2014); and 110 Code Mass. Regs. § 10.09(3) (2014).

      The foster mother testified in the abuse of discretion hearing, and her counsel was at least "briefly allowed to be heard" in the remedy hearing.

      For example, 110 Code Mass. Regs. § 7.116(2)(c) (2009) lists numerous situations where a foster parent would not be entitled to a preremoval hearing, including when the area or regional director determines "that the foster child's physical, mental, or emotional well-being would be endangered by leaving the child in the foster/pre-adoptive home."

      Under 110 Code Mass. Regs. § 7.111(1) (2009), each foster parent enters into a written agreement with DCF that recognizes "that foster care is a temporary arrangement which envisions the eventual reunification of the child with his/her birth family and the obligation of the foster/pre-adoptive parent to support that reunification." The foster parent must renew this agreement on an annual basis. Id. at § 7.111.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Lazaro FERNANDEZ.
    18-P-472
    Appeals Court of Massachusetts.
    Entered: November 7, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 2009, a Superior Court jury convicted the defendant of raping a fourteen year old girl. That conviction was affirmed on direct appeal in a memorandum and order issued pursuant to our rule 1:28. See Commonwealth v. Fernandez, 83 Mass. App. Ct. 1107 (2013) (Fernandez I ). In 2013, the defendant filed a pro se motion that, inter alia, requested that deoxyribonucleic (DNA) testing be performed pursuant to G. L. c. 278A, §§ 1 - 18 (first DNA motion). The trial judge denied that motion based on his conclusion that "[t]he defendant has not shown, and the court cannot discern, how DNA testing would have an impact on this case." We affirmed that order in another unpublished memorandum and order. See Commonwealth v. Fernandez, 86 Mass. App. Ct. 1123 (2014) (Fernandez II ). Again representing himself, the defendant subsequently filed what he styled as a "renewed" motion for DNA testing (second DNA motion). A different Superior Court judge denied that motion, explaining in detail why the motion failed to meet the statutory prerequisite of showing that the requested testing had "the potential to result in evidence that is material to the moving party's identification as the perpetrator of the crime in the underlying case." See G. L. c. 278A, § 3 (b ). Before us now is the defendant's appeal from the denial of his second DNA motion. We affirm.

Background. The victim was the daughter of the defendant's friend's girl friend. The defendant's conviction was based on testimony that "[a]fter the victim refused his request for oral sex, [the defendant] ... lowered the victim's pants and licked her vagina." Fernandez I. The victim reported the crime to the police four days later, and two days after that, she provided police the clothes she had worn on the day in question. No saliva was found on the clothing, a fact that the jury heard. Sperm residue was found on the girl's underpants, a fact that -- at the request of the Commonwealth -- the jury did not hear because of the rape shield statute. The defendant presented an alibi defense that the Commonwealth argued (with apparent success) was fabricated. The defendant also sought to undermine the credibility of the victim in various respects.

Discussion. We begin by examining whether the second DNA motion raises issues not addressed by the first. With respect to the DNA testing issues, there are two nominal differences between the motions, which we address in turn. The first such difference has to do with what material the defendant was requesting be tested. The first DNA motion specifically requested DNA testing of the victim's underpants, while the second motion referred more generally to "the rape kit obtained in the underlying prosecution." However, there is nothing in the record to suggest that any rape kit as such ever was collected, and the Commonwealth's counsel represents that one was not. In his reply brief, the defendant makes no assertion to the contrary. Rather, he simply tries to recast his motion as one seeking "DNA testing of the 'evidence' whatever the evidence is or whatever the biological material is called by counsel for [the Commonwealth]." Because the only biological material referenced in the record was the traces of sperm cells found on the victim's underwear, the second DNA motion in effect seeks DNA testing of the very same material as the first.

The second nominal difference between the first DNA motion and the second has to do with the type of DNA testing that the defendant requested. The first DNA motion requested "DNA testing" without further specification. The second DNA motion specifically requested that "Y-STR DNA" testing be done, as opposed to the CODIS testing that the defendant claimed previously had been done and on which the motion claimed the Commonwealth had "relied" at trial. However, as the Commonwealth's brief points out, the Commonwealth did not rely on any DNA testing at trial; indeed, apparently no DNA testing of the victim's clothing ever was done. In any event, the arguments that the defendant now puts forward in support of his second DNA motion do not turn on the type of DNA testing at issue. Instead, the defendant makes the same arguments he made in support of his first DNA motion (namely, that DNA testing will show that the victim was having sexual intercourse with a third party and that this in turn will show that she is lying or that she somehow had reason to fabricate her claims against the defendant).

In sum, while there are nominal differences between the first DNA motion and the second, those motions in substance are the same. We already have ruled on the issues the defendant seeks to raise, and the defendant therefore is estopped from raising them again. See Commonwealth v. Williams, 431 Mass. 71, 74-75 (2000).

Order dated November 29, 2017, denying motion for DNA testing affirmed.

      The defendant also raised certain issues unrelated to DNA testing. Those issues are no longer in dispute.

      The Commonwealth asserts that, strictly speaking, both motion judges should have "dismissed" the motions instead of "denying" them. Nothing ultimately turns on this.

      Fernandez I upheld the judge's exclusion of that evidence.

      See Commonwealth v. Jones, 472 Mass. 707, 711 (2015) (describing what rape kit is).

      A close reading of the defendant's papers suggests that he inaccurately assumed that because the victim's underpants were tested for saliva and sperm, then that testing must have been DNA testing.

      Were we to reach these issues again, we would agree with the reasoning of Fernandez II, as well as the thoughtful explanation provided by the judge who denied the second DNA motion.


text:
    COMMONWEALTH v. Philip CONSOLO.
    18-P-92
    Appeals Court of Massachusetts.
    Entered: November 7, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Philip Consolo, appeals from an order revoking his probation and imposing a one-year sentence in the house of correction.

Background. On January 13, 2016, the defendant admitted to sufficient facts on charges of assault and battery by means of a dangerous weapon and assault and battery. The plea judge continued the cases without findings for eighteen months. At the plea hearing, however, the defendant signed a probation order requiring him to obey all local, State, and Federal laws and to refrain from abusing the victim (J.D.), and stating other conditions.

While still on probation, the defendant was charged with assault and battery on a family or household member, strangulation, and violation of an abuse prevention order. The victim in all three cases was J.D. The charges stemmed from an incident between the defendant and J.D. in a motor vehicle. As a result of the new charges, a notice of probation violation issued. Following a hearing, the revocation judge (who was not the plea judge) determined that the defendant was in violation of the terms of his probation, finding by a preponderance of the evidence that the defendant committed the new charges. The revocation judge revoked the defendant's probation and imposed a one-year sentence in the house of correction. Approximately one month after the hearing, the defendant pleaded guilty to the new charges.

Discussion. The defendant argues that defense counsel should have withdrawn so she could testify at the hearing regarding a conversation she had with the testifying police officer, and that her failure to do so constituted ineffective assistance of counsel. The defendant asserts that even though he subsequently pleaded guilty to the new charges, his claim is not moot because the ineffectiveness may have affected the dispositional phase of the probation hearing. See Commonwealth v. Milot, 462 Mass. 197, 201 (2012). We are not persuaded. As the Milot court noted, simply because "the disposition of the probation matter potentially could [have] change[d] is not enough to alter the nature of the ... claim of error, which goes to the fact-finding step of the probation violation proceeding." Id. at 202. Because the error the defendant raises related entirely to whether he committed the new charges, i.e., the fact-finding step of the proceeding, his claim is indeed moot.

Even if the claim is not moot, the defendant did not receive ineffective assistance at the hearing. To sustain this claim, a defendant must show that the behavior of counsel fell below that of an "ordinary fallible lawyer" and that such failing "likely deprived the defendant of an otherwise available, substantial ground of [defense]." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant also must show that "better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). The defendant did not assert the ineffective assistance claim through the preferred method, i.e., in a motion for a new probation violation hearing. See Commonwealth v. Zinser, 446 Mass. 807, 811 (2006) ; Commonwealth v. Bowen, 92 Mass. App. Ct. 793, 799 (2018). Nor did he submit an affidavit from counsel. Instead, he raises the issue for the first time on appeal. Typically, ineffective assistance claims should only be brought on direct appeal "when the factual basis of the claim appears indisputably on the trial record." Zinser, supra. This is not such a case.

Defense counsel's strategy at the hearing was to thoroughly cross-examine the police officer who, the defendant claims, admitted to defense counsel outside of the hearing that the marks on J.D.'s neck were not consistent with marks "normal[ly]" seen from strangulation. In fact, defense counsel's cross-examination effectively elicited the exact information to which she could have testified. Therefore, even if we concluded that defense counsel should have withdrawn because she indisputably was a necessary witness, a conclusion we do not reach, the defendant cannot show that better work might have accomplished something material for the defense.

We also note that the revocation judge credited the police officer's statement in its entirety, which included testimony that J.D. told him that the defendant "grabbed [her] around the throat and -- caus[ed] her not to be able to breathe very well for approximately three seconds." The police officer also testified that J.D. was nervous and upset and that she had "a red mark on her upper chest/lower neck," observations he made himself. The revocation judge was entitled to credit this testimony. See Commonwealth v. Durling, 407 Mass. 108, 118 (1990) (reliable hearsay can be basis for probation revocation).

Order revoking probation and imposing sentence affirmed.


text:
    COMMONWEALTH v. Robert M. LEVASSEUR.
    18-P-226
    Appeals Court of Massachusetts.
    Entered: November 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury-waived trial in the District Court, the defendant was convicted of assault and battery on a family or household member, in violation of G. L. c. 265, § 13M (a ). After filing an appeal from the conviction, he filed two postconviction motions, one requesting a new trial and the other requesting discovery and expert funds. This court stayed appellate proceedings, and the motions were acted on by the trial judge, who denied them. Before us is the defendant's consolidated appeal from his conviction and the two orders denying the postconviction motions.

Background. The jury could have found the following facts. At approximately 10 P.M. , on February 2, 2016, Brockton police Sergeant David Farrell and Officer Lucas Pedro were dispatched to the victim's home to investigate a report of an altercation between the defendant and the victim's son. The victim, who had been sleeping in her bedroom, woke up when the police arrived. When she joined the defendant and the police in the living room, the defendant said, "I didn't hit you," to which the victim responded, "[Y]ou didn't hit me tonight but what about last night?" When asked about the incident by Sergeant Farrell, the victim was not forthcoming, refusing to provide any additional information. In addition, she refused to show Sergeant Farrell her injuries and did not show him any photographs of those injuries.

The defendant was arrested on the basis of the victim's allegations. While en route to the police station, the defendant said to Officer Pedro, "You're arresting me now, that was last night?"

On the day of trial, the victim gave the prosecutor two photographs depicting the injuries she claimed to have sustained on February 1, 2016. She stated that she had taken the photographs with her cellular telephone (cell phone) on the night of February 1. One photograph showed scratches on the victim's face, and the other showed a bruise on her arm. Before trial commenced, the prosecutor informed the judge of her intent to introduce the photographs. Defense counsel objected, but did not request a continuance; the objection was overruled. After the victim authenticated the photographs, they were admitted in evidence, over renewed objection by defense counsel. As noted, the judge found the defendant guilty and subsequently denied his two postconviction motions.

Discussion. 1. The defendant's direct appeal. The defendant argues that the late disclosure of the photographs deprived him of his right to a fair trial. We disagree.

To be sure, it is regrettable that the photographs were not produced earlier by the victim. However, there is nothing in the record that demonstrates the defendant's strategy was altered as a result of receiving notice of the photographs on the day of trial. The defendant's strategy focused on undermining the victim's credibility. To this end, defense counsel ably cross-examined the victim about her motive to fabricate the incident by suggesting that she made up the allegations to deflect attention from her son to the defendant. Defense counsel also effectively challenged the victim's claim that two friends had seen the injuries by emphasizing the fact that neither friend testified at trial or was present in court. He also appropriately argued that the victim's refusal to show her injuries or any photographs of her injuries to Sergeant Farrell on the night the defendant was arrested further demonstrated that she was not credible. In sum, even if defense counsel had to make some adjustments as a result of receiving the photographs on the day of trial, the defendant has failed to establish that he was prejudiced by the late disclosure. See Commonwealth v. Stote, 433 Mass. 19, 22-23 (2000).

Moreover, as the Commonwealth notes in its brief, it is significant that the defendant did not request a continuance to investigate the matter. See Commonwealth v. Emerson, 430 Mass. 378, 382 (1999). See also Commonwealth v. Nolin, 448 Mass. 207, 223-225 (2007) (any adverse consequences from delayed disclosure of evidence sufficiently mitigated by grant of continuance to conduct further investigation). Under the circumstances presented here, however, it was unclear that further investigation would undercover exculpatory evidence. The defendant therefore was not deprived of his rights to a fair trial.

2. Motion for postconviction discovery and expert funds. The victim testified that she took the photographs of her injuries with her cell phone, but the photographs provided to the prosecutor and defendant, and admitted in evidence, were in print form. Represented by new counsel, the defendant filed a postconviction motion for discovery seeking "the digital files connected to the photographs." He further requested access to the victim's cell phone, current home and former work computers, and "cloud storage account" in order to examine the electronically stored data (metadata) attached to the digital image of each photograph. The defendant argues that access to the victim's cell phone is critical because the metadata attached to the digital images would provide the date and time the photographs were taken, and if, as the defendant alleges, the photographs were not taken on February 1, 2016, then it would be clear that the victim was not truthful. Access to the computers and the "cloud storage account" also is important, the defendant contends, because it is likely the victim downloaded the photographs onto one of her computers. In support of his motion, the defendant submitted an affidavit from a computer and cell phone "digital forensic examiner," who described the various modes of extracting metadata from cell phones. The motion was denied by the trial judge in a margin endorsement.

The defendant has the burden of making "a sufficient showing that the discovery is reasonably likely to uncover evidence that might warrant granting a new trial." Commonwealth v. Daniels, 445 Mass. 392, 407 (2005). That burden was not met here. To begin with, it is unknown whether the victim preserved the digital images of the photographs or whether the cell phone is still in the victim's possession. Nor is there a reasonable basis for concluding that the photographs were downloaded to a computer or stored elsewhere. Lastly, as stated above, the defendant was able to effectively challenge the victim's credibility at trial. The judge did not abuse her discretion in denying the motion.

3. Motion for new trial. The sole ground relied upon by the defendant in support of his motion for new trial is that he was prejudiced by the late disclosure of the photographs. The decision whether to grant a new trial is within the sound discretion of the motion judge and will be reviewed only to determine whether there has been a significant error of law or other abuse of discretion. Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Having already determined that the defendant failed to show that he was prejudiced from the late disclosure of the photographs, the judge did not abuse her discretion in denying the motion.

Judgment affirmed.

Orders denying motions for postconviction relief of new trial and for postconviction discovery and expert funds affirmed.

      The Commonwealth contends that the defendant's statement amounts to a confession to the crime. The defendant disagrees with this characterization. We recognize that the statement is somewhat ambiguous, but we need not resolve the matter as our analysis does not rely on the statement.

      The defendant claims that the hard drive of the computer he formerly shared with the victim had been damaged and therefore requested funds to hire an expert to repair the hard drive so that its data can be retrieved.


text:
    COMMONWEALTH v. Eugene C. BERTINI.
    18-P-234
    Appeals Court of Massachusetts.
    Entered: November 7, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 2015, the defendant pleaded guilty to seven indictments that charged him with armed robbery of cash from Gregory Alterio (indictment one), armed robbery of cash from Eric Alterio (indictment two), armed robbery of a neck chain from Eric Alterio (indictment three), armed assault with intent to rob against Gregory Alterio (indictment four), assault and battery by means of a dangerous weapon against Gregory Alterio (indictment five), assault by means of a dangerous weapon against Eric Alterio (indictment six), and larceny in an amount over two hundred and fifty dollars from a gas station (indictment seven). In 2016, the defendant moved to "vacate [his] convictions" on indictments two, four, five, six, and seven based on his claim that those convictions were duplicative. The Commonwealth agreed that the convictions on indictments one and four were duplicative, but otherwise opposed the motion. The motion judge found that the convictions on indictments one and four were duplicative and vacated the conviction on indictment four, determined that there was insufficient evidence to support the conviction on indictment two and dismissed that conviction, but otherwise denied the motion. The defendant appeals from so much of the order as denies his motion. We affirm.

The defendant first claims that his convictions on indictment five, assault and battery by means of a dangerous weapon against Gregory Alterio, and indictment seven, larceny over two hundred and fifty dollars from the gas station, must be dismissed because they are duplicative of his conviction on indictment one, armed robbery of cash from Gregory Alterio. He also claims that his conviction on indictment six, assault by means of a dangerous weapon against Eric Alterio, must be vacated because it is duplicative of his conviction on indictment three, armed robbery of a neck chain from Eric Alterio. We disagree.

In support of his claim, the defendant asks that we apply a conduct-based approach that has been rejected by the Supreme Judicial Court in all cases except those involving cognate offenses. In Commonwealth v. Vick, 454 Mass. 418, 431 (2009), the court held that the traditional, elements-based rule from Commonwealth v. Morey, 108 Mass. 433, 434 (1871), "remains the standard for determining whether multiple convictions stemming from one criminal transaction are duplicative." See Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 126 (2010) ("the siren song of the conduct-based approach has been silenced").

Relative to indictments five and one, as the judge determined based on Commonwealth v. Wolinski, 431 Mass. 228, 238-239 (2000), a conviction of assault and battery by means of a dangerous weapon is not duplicative of a conviction of armed robbery because each crime requires proof of a fact that the other does not. "For the former an assault and battery by means of a dangerous weapon must have occurred, but there need not be any larceny; for the latter an assault with a dangerous weapon and larceny must have occurred, but there need not be any battery." Id. at 239. The offenses are not duplicative.

Also, contrary to the defendant's claim, the judge properly determined that the defendant's conviction on indictment six, assault by means of a dangerous weapon against Eric Alterio, is not duplicative of his conviction on indictment three, armed robbery of the same victim. In Commonwealth v. Anderson, 461 Mass. 616, 633 (2012), the court expressly held that "a conviction of armed robbery is not duplicative of a conviction of assault by means of a dangerous weapon." The crimes simply have different elements. See Commonwealth v. Muller, 461 Mass. 1009, 1010 (2012).

Finally, the defendant claims that his conviction on indictment seven of larceny is duplicative of his conviction on indictment one of armed robbery. We disagree. While the defendant is correct that larceny is a lesser included offense of armed robbery, the judge properly concluded that the defendant's convictions of larceny against the local gas station and the armed robbery against Gregory Alterio are not duplicative because the crimes involved different victims. See Commonwealth v. Levia, 385 Mass. 345, 351 (1982). The "appropriate 'unit of prosecution' for larceny is the taking at a single time and place without regard to the number of items taken; the appropriate 'unit of prosecution' for armed robbery is the person assaulted and robbed" (quotation omitted). Commonwealth v. Donovan, 395 Mass. 20, 31 (1985).

Accordingly, so much of the order as denies the motion to vacate convictions is affirmed.

So ordered.

Affirmed

      The judge resentenced the defendant in accordance with her decision.


text:
    Janet MACK v. DEVONFIELD INN, LLC.
    18-P-508
    Appeals Court of Massachusetts.
    Entered: November 7, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury returned a verdict in favor of the defendant, Devonfield Inn, LLC (Inn), on a claim for negligence brought by the plaintiff, Janet Mack, after Mack injured her wrist when she fell at the Inn. On appeal, Mack contends, as she did below, that there was error in the jury instructions. We affirm.

Our review of this matter is hampered by the deficiencies in the record before us. Mack has included a transcript that contains only the jury charge conference, the jury charge, and the verdict. See Mass. R. A. P. 8 (a), as amended, 378 Mass. 932 (1979) (composition of record on appeal shall include transcript of proceedings). With this in mind, "we review [the] objections to [the] jury instructions to determine if there was any error, and, if so, whether the error affected the substantial rights of the objecting party." Dos Santos v. Coleta, 465 Mass. 148, 153-154 (2013), quoting Hopkins v. Medeiros, 48 Mass. App. Ct. 600, 611 (2000).

Here, the jury instructions were not a model of clarity. However, given Mack's failure to include a complete transcript of the trial, she is unable to meet her burden to demonstrate prejudicial error.

Judgment affirmed.


text:
    ADOPTION OF IMAN.
    18-P-628
    Appeals Court of Massachusetts.
    Entered: November 7, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   In an earlier proceeding, a Juvenile Court judge -- with the mother's consent -- found Iman (born in May of 2015) in need of care and protection and transferred permanent custody to the Department of Children and Families (DCF). The plan at that time was that Iman would be placed with the mother's sister, who would become her permanent guardian. After that placement fell through, DCF's plan changed to adoption by recruitment. Following an evidentiary review and redetermination hearing on October 19, 2017, the judge issued a decree that, inter alia, found Iman in continued need of care and protection, found the mother unfit, kept permanent custody with DCF, and terminated the mother's parental rights. We affirm.

"While a decision of unfitness must be supported by clear and convincing evidence, a judge's findings will be disturbed only if they are clearly erroneous" (citation omitted). Adoption of Paula, 420 Mass. 716, 729 (1995). The judge made careful and detailed factual findings, none of which the mother has demonstrated is clearly erroneous. Those findings set forth the profound challenges that the mother faced as a parent. For example, the mother suffered from mental illness and had a history of drug and alcohol addiction. She in fact relapsed on alcohol just a few months prior to the evidentiary hearing (to the point that she was placed in protective custody).

The mother also was involved in a romantic relationship with a man who physically abused her over an extended period. After DCF pressed her to terminate that relationship, she tried to hide her continued involvement with the man, and the judge found that at the time of trial the only thing that had kept the two from living together was the man's serving a jail sentence for assaulting the mother. The mother herself has a criminal history that includes multiple convictions for both assault and battery and assault and battery on a police officer, resisting arrest, and "use without authority"; at the time of trial she was incarcerated on a charge of assault and battery on a pregnant person.

The mother also did not fully comply with her service plan. She agreed to have a neuropsychological evaluation done, but she did not allow DCF to have input into that evaluation and much of it was based on her own self-reporting. The mother remains unemployed, and despite her making at least some effort to secure suitable housing, she has been unable to do so.

The mother argues that the judge did not give her due credit for strides she had made toward complying with her service plan tasks, and unfairly held against her certain behavior that was of little consequence. We conclude that such criticisms of the judge's findings go to matters of tone and emphasis, rather than to the judge's failure to engage with "troublesome facts." Compare Adoption of a Minor (No. 2), 367 Mass. 684, 688 (1975). None of the mother's arguments undermine the substantive force of the judge's findings, which provide ample clear and convincing support for his ultimate conclusions that the mother was unfit to parent Iman, and that such unfitness was likely to continue for the foreseeable future.

Termination of parental rights. As we have recognized, "[u]nfitness does not mandate a decree of termination." Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). But at the same time, it is unfair to leave children in limbo indefinitely. See Adoption of Nancy, 443 Mass. 512, 517 (2005) ("it is only fair to the children to say, at some point, 'enough' "). With the passage of time, it becomes increasingly important that children obtain a stable, safe, and nurturing home environment. Iman has been placed in a preadoptive home that includes four other children, including Iman's biological sister with whom she shares a room. All of Iman's needs are being met in that placement. In the end, "[w]hile courts protect the rights of parents, 'the parents' rights are secondary to the child's best interests and ... the proper focus of termination proceedings is the welfare of the child.' " Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting Adoption of Gregory, 434 Mass. 117, 121 (2001). With this overarching standard in mind, we discern no error in the judge's decision to terminate the mother's rights.

Posttermination and postadoption visitation. The mother argues that the judge erred by not ordering posttermination and postadoption visits between her and Iman. Although the mother generally "was appropriate" at past scheduled visits, she was observed to engage in some unsafe behavior and "always needed supervision." Moreover, there was no evidence that a significant bond had developed between the mother and Iman (who, having been placed in a foster home directly from the hospital following her birth, has never lived with the mother). Indeed, the judge specifically found that during two observed visits, Iman "would deny [the mother's] affection and would not allow [the mother] to hug or kiss her." We discern neither error in the judge's determination that continued visitation was not in Iman's best interests at this time, nor any abuse of discretion in his decision to leave visitation issues to DCF and Iman's future adoptive parents. See Adoption of Ilona, supra at 64-66. Compare Adoption of Rico, 453 Mass. 749, 755-757 (2009).

Decree affirmed.

      The judge also terminated the parental rights of the mother's estranged husband, who disclaimed paternity but took no steps to remove himself from this case. No appeal was taken.

      In challenging factual findings numbered 38, 40, 42, and 44, the mother references required service plan tasks that she did perform, and that the judge acknowledged, but she did not address the specific tasks noted by the judge that the mother failed to complete, such as the lack of secure and stable housing; failure to sign all required releases (with no limitations); failure to complete a substance abuse evaluation; and submitting paperwork to the foster care review panel, rather than DCF (as required), relating to her engagement in services.

      The mother identified the man as Iman's biological father, although his paternity has not been adjudicated.

      The mother claims to have made extensive efforts to locate new housing. The extent to which the judge credited such claims is not clear. Compare conclusion of law 9 ("Mother has struggled to obtain safe housing") with conclusion of law 30 (viii) ("Mother has not taken her ... housing needs ... seriously"). Regardless of the precise extent of the mother's efforts, the fact remains that she has been unable to provide a safe and stable home environment for Iman.

      The mother also argues that the judge inappropriately held against the mother her insistence that she have a lawyer present at DCF meetings or visits to her house. Although the judge did reference the mother's position on this issue, we do not interpret these references as indicating that he held this against the mother. In any event, there was overwhelming evidence of the mother's unfitness (rendering any error harmless).

      As we previously have stated:
      "We pause to note that the mother has shown evident affection toward [Iman], and none of the judge's findings negate this. Despite the moral overtones of the statutory term 'unfit,' the judge's decision was not a moral judgment or a determination that the mother ... do[es] not love the child. The inquiry instead is whether the parent['s] deficiencies or limitations 'place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.' "
      Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017), quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).

      In addition, the preadoptive family has allowed regular visitation with two other biological sisters.

      For example, during a supervised visit, the mother "could not keep up with [Iman] and [a DCF social worker] had to run around [the mother] to get [Iman] to keep her from running out of the doorway into a parking lot."


text:
    M. Therese BURDO & another v. ZONING BOARD OF APPEALS OF CHELMSFORD & Others.
    17-P-970
    Appeals Court of Massachusetts.
    Entered: November 15, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Robert T. Miragliuolo.

      Terrance Murphy and Valerie Murphy.

   The defendants, Terrance and Valerie Murphy (the Murphys), appeal from an amended judgment of the Land Court which annulled a variance that had been issued to them by the Zoning Board of Appeals of Chelmsford (board). They claim that the judge erred by finding, without evidentiary support, that the plaintiffs have standing and that the two lots at issue merged for zoning purposes. We affirm.

Background. On August 30, 2012, the board granted the Murphys a variance from the town of Chelmsford's zoning bylaw's setback requirement in connection with the proposed construction of a home on a vacant lot at 181 Proctor Road, which is adjacent to a house at 183 Proctor Road, also owned by the Murphys. The plaintiffs, M. Therese Burdo and Robert T. Miragliuolo, filed an action in the Land Court challenging the issuance of the variance. The Murphys filed a motion to dismiss for lack of standing that was denied. Thereafter all parties agreed that a remand to the board was necessary. A Land Court judge issued a remand order with specific instructions. Following the remand, the board reissued the variance and found that (1) no relief from the rear yard setback was required, (2) the vacant lot was exempt from the contiguous upland requirements, and (3) the lots had not merged. The plaintiffs filed a complaint after remand in the Land Court challenging the board's decision.

After the trial following the remand, the judge found that the plaintiffs were aggrieved by the variance, as a result they had standing, and the two lots had merged for zoning purposes. Nonetheless, the judge affirmed the board's issuance of the variance; however, he again remanded the case to the board to consider whether to grant a variance from the contiguous upland requirement for both lots. The plaintiffs filed a motion for reconsideration arguing that, based on the judge's conclusion that the two lots had merged, a variance could not issue to allow construction of a second home. The judge allowed the motion, and issued an amended judgment annulling the variance. This appeal followed.

1. Standing. Standing is a question of fact for the trial judge, which we will only reverse if the finding is clearly erroneous. Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 119 (2011). Here, the judge found that the plaintiffs had standing based on plausible claims of injury to three interests: privacy, stability of the property, and reducing risk of fire. "[I]t is the trial judge who, by virtue of his firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence." Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570, 575 (2016), quoting New England Canteen Serv. v. Ashley, 372 Mass. 671, 675 (1977).

a. Privacy and density. A town regulates density, in part, by dictating the distance a building must be set back from the lot line. 81 Spooner Rd., LLC v. Brookline, 452 Mass. 109, 110 (2008). The loss of privacy resulting from the reduction of a side-yard setback requirement is an injury to a private interest protected by zoning bylaws. See Dwyer v. Gallo, 73 Mass. App. Ct. 292, 297-298 (2008). Here, the judge found that the plaintiffs would suffer a loss of privacy as a result of reduction of the side-yard setback, as evidenced by photographs, maps, and numerous plot, subdivision, and wetlands plans. In addition, the judge took a view of the site. There was ample record evidence to support the judge's findings. Contrary to the Murphys' claim, expert testimony is not required on the question of the loss of privacy. Compare Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81, 91 n.13 (2007).

b. Stability of property. The judge found that the project required the construction of a six-foot retaining wall located within two feet of the common property line. He further found that construction of the wall would require an excavation of fifteen to twenty feet from the face of the wall, constituting a trespass on the plaintiffs' property. Damage to real property is a cognizable zoning interest. Paulding v. Bruins, 18 Mass. App. Ct. 707, 709 (1984). Moreover, the construction would materially alter the plaintiffs' property because eight to ten mature trees would be removed which, in conjunction with the excavation, raised questions about the stability of the plaintiffs' property. See Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 481 (2012), quoting M. Bobrowski, Massachusetts Land Use and Planning Law § 12.07 [C] (3d ed. 2011) (setback regulations serve multiple purposes, such as "to secure safety from fire ... and other dangers" and "to prevent overcrowding of land"). The judge's findings are more than supported by the record.

c. Fire risk. Preventing the risk of the spread of fire is an interest protected by zoning. See St. 1975, c. 808, § 2A. Here, the judge found that the variance would require the removal of trees and that the excavation would affect the root system of many others. The judge credited the testimony of the plaintiffs' expert that dead and dying trees located ten feet from the proposed home would increase the risk of fire spreading. In addition, the judge found that the Murphys' proposed driveway lacked sufficient width for fire trucks. Not only was the judge in the best position to assess the evidence, but he also had the additional advantage of having viewed the site firsthand. We see no reason to disturb his findings.

2. Merger. The Murphys claim that their lots are not adjoining because they are "substantially separated by wetlands, including a stream" and because the lots have always maintained separate identities. The judge found that there is no barrier that prevents these adjacent lots from being adjoining. Cf. Heavey v. Board of Appeals of Chatham, 58 Mass. App. Ct. 401, 405 (2003) (two parcels bisected by a body of water were not adjoining for merger purposes). Indeed, the judge found that combining the two lots would bring them into greater compliance with the contiguous upland requirement. Additionally, the fact that the lots were purchased separately and have since been assessed separately by the town does not preclude merger based on the principle of maintaining separate identities. To the contrary, "when adjacent nonconforming lots come into common ownership, they are normally merged and treated as a single lot for zoning purposes," Hoffman v. Board of Zoning Appeal of Cambridge, 74 Mass. App. Ct. 804, 811 (2009), so as to "minimize nonconformities with the dimensional requirements of the zoning by-law or ordinance." Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct. 521, 522 (1987). While assessment history can be useful information in determining a plot's status for zoning purposes, it "[a]t best ... serve[s] only as 'some indication of the status of the property' " (citation omitted). Heald v. Zoning Bd. of Appeals of Greenfield, 7 Mass. App. Ct. 286, 291 (1979).

In addition, the lots merged as a matter of law. The Murphys own the vacant lot and the house lot by one deed. The existing house on one of the lots is zoned "RB" (single residence). In this zone, the property must contain at least 40,000 square feet of lot area. The bylaw provides that "[a]t least eighty [percent] of the lot area ... shall be contiguous land other than ... wetland." See bylaw § 195-108. As a result, buildable lots must have at least 32,000 contiguous square feet of uplands. By stipulation, the parties agreed that neither lot has the requisite 32,000 contiguous square feet of uplands. There was no error.

3. The variance. Because the two lots merged, the judge correctly found that the board exceeded its authority in granting the variance. Once the lots merged, they could not be separated. Asack v. Board of Appeals of Westwood, 47 Mass. App. Ct. 733, 736 (1999). When a landowner has already built one house on her land, there can be no hardship under G. L. c. 40A, § 10, based on the owner's desire to build a second structure. See Bruzzese v. Board of Appeals of Hingham, 343 Mass. 421, 423-424 (1962).

Amended judgment affirmed.

      The board did not participate in the trial after remand or this appeal.

      The bylaws require a twenty-five foot setback. The proposed construction would result in a ten-foot setback.


text:
    COMMONWEALTH v. Lance S. ALFORD.
    17-P-1163
    Appeals Court of Massachusetts.
    Entered: November 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was convicted by a jury of an assault and battery. On appeal he contends that the judge erred in denying his request for a defense of property instruction. We affirm.

A defendant may successfully assert a defense of property defense if "(1) the defendant used only nondeadly force, and (2) the force used was 'appropriate in kind and suitable in degree, to accomplish the purpose.' " Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 248-249 (1999), quoting Commonwealth v. Goodwin, 57 Mass. 154, 158 (1849). The defendant must present evidence that he was defending his property in order to raise such a defense. See Commonwealth v. Brown, 479 Mass. 163, 169 n.4 (2018) ; Haddock, supra at 248 & n.2.

Here, the trial centered on diametrically opposed versions of events. The question before us is whether, on the defendant's version of the facts, he was entitled to the instruction. See Brown, supra. Cf. Commonwealth v. Ortega, 480 Mass. 603, 610 (2018) ("we consider the evidence, from any source, and resolve all reasonable inferences in favor of the defendant").

The evidence was as follows. The Commonwealth claimed that the defendant had severely beaten a woman in his car after spending an evening together. The woman testified that after accepting a ride home from the defendant, she decided that she wanted to get out of the car. She opened the door of the moving car. The defendant grabbed her, pulled her back in the car, and refused to let her get out. He continued to drive while at the same time beating her about the head. He also slammed her face against the dashboard. There was evidence that there was blood on the interior of the car, the woman's face was swollen and bruised, and that some of her teeth were missing or broken. She also testified that while being treated for her injuries at the hospital, the defendant called and offered her money not to cooperate with the police.

The defendant maintained that the woman had stolen valuable jewelry from his mother, and that when he asked her about it, she panicked and tried to jump out of the car. The defendant testified that he had learned shortly before giving her a ride in the car he was driving that she had stolen jewelry from his mother. He started to question her about the missing jewelry, at which point she tried to jump out of the moving car. The defendant testified that he reached over to grab her to prevent her from "jumping" out of the moving car, while at the same time trying to brake to stop the car. In the confusion, the car stopped abruptly, she hit her head against the dashboard, and she suffered injuries.

The defendant was not entitled to a defense of property instruction because his testimony did not support it. In his opening statement, defense counsel told the jury that the evidence would show that the woman attempted to flee from a moving car after she had been confronted about her theft. At trial the defendant testified that he grabbed her to prevent injury, not for purposes of retrieving the allegedly stolen property. In his closing argument, defense counsel reiterated this theme, arguing that after the defendant "confronted" her about the theft, "[s]he panicked and tried to jump out of a moving vehicle, injured herself, and this case came from that incident." The defendant's evidence offered an alternative version of events which, if believed, would have permitted the jury to acquit, but that evidence did not support a claim that the defendant used force to regain stolen property. See Brown, 479 Mass. at 169. Accordingly, he was not entitled to a defense of property instruction. The judge properly denied the request for the instruction.

Judgment affirmed.

      On direct examination, the defendant was asked, "Now, when you held [the woman] after she was blasted back into the car by the passenger side door, what was your intent?" He responded, "First, I didn't want her jumping out of the vehicle. Second, I didn't want her on top of me. I didn't want to crash into anybody. There was a lot of things going on. This is instantaneous, it's within, you know, seconds, it's just chaos. Just, just madness." On cross-examination, the following exchange took place. Q.: "As you're confronting her about the stolen jewelry and she starts screaming, screaming, correct?" A.: "No, that's not how it happened." Q.: "Okay." A.: "I asked her about the jewelry. She said no. I said, we're going to have to go back to the house and sort it out. There was no confrontation at that time. When she got blown back in the car, she was screaming and going crazy."


text:
    COMMONWEALTH v. Owen MCCANTS.
    17-P-1243
    Appeals Court of Massachusetts.
    Entered: November 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was convicted of rape and armed robbery in November, 1974. These judgments were affirmed on appeal in Commonwealth v. McCants, 3 Mass. App. Ct. 596 (1975). Approximately forty years later, the defendant filed a motion for a new trial. A judge denied the defendant's motion without a hearing, reasoning that the defendant failed "to present a credible and adequate showing of any serious or substantial issue with these decades-old convictions for sexual and other crimes." We affirm.

Discussion. Standard of review. We review a judge's decision to deny a motion for a new trial "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Ellis, 475 Mass. 459, 476 (2016), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). "The choice of deciding the motion on the basis of affidavits or hearing oral testimony is left largely to the sound discretion of the judge." Fogarty v. Commonwealth, 406 Mass. 103, 110 (1989). The order denying a motion for a new trial should not be reversed unless there is "an abuse of discretion that produces a manifestly unjust result." Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997).

Analysis. The defendant's motion raised numerous claims of error. On appeal, he focuses on those claims related to (1) the ineffective assistance of trial and appellate counsel; (2) the defendant's absence from a pretrial conference; (3) the sufficiency of the evidence; and (4) the prosecutor's opening and closing arguments. In addition, he claims that the motion judge abused her discretion by not holding an evidentiary hearing.

1. Ineffective assistance. The defendant claims that his trial and appellate counsel, in a variety of ways, provided him ineffective assistance. We review claims of ineffective assistance of counsel using the two-prong test outlined in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant bears the burden of establishing that counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer" and that such behavior has "likely deprived [him] of an otherwise available, substantial ground of defence." Commonwealth v. Pike, 53 Mass. App. Ct. 757, 760 (2002), quoting Saferian, 366 Mass. at 96.

Here, the defendant has failed to meet his burden of proof because he did not file an affidavit from his trial or appellate counsel explaining their strategies. Without such statements, we cannot conclude that either counsel's numerous alleged failures were "manifestly unreasonable" tactical decisions. Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978) ("A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was 'manifestly unreasonable' when made"). Accordingly, "because there is no affidavit from trial [or appellate] counsel, the defendant's assertions about what counsel did not do is speculative and need not be considered." Commonwealth v. Rice, 441 Mass. 291, 304 (2004).

2. Waived arguments. The remaining arguments raised by the defendant concern his absence from a pretrial conference, the judge's failure to rule on a motion for a required finding of not guilty, and the prosecutor's opening and closing arguments. We note that "the trial judge correctly observed that these claims ... could have been raised through [direct appeal] and were not." Fogarty, 406 Mass. at 107. Therefore, they are waived. See Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501 (2001). Even if these claims were not waived, they are without merit, and thus there is no risk that justice miscarried. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002) (standard of review for unpreserved errors is substantial risk of miscarriage of justice).

First, the defendant argues that he was unlawfully absent from the May 2, 1974, pretrial conference. However, the portion of Mass. R. Crim. P. 11 (a), as appearing in 442 Mass. 1509 (2004), requiring the defendant's presence at a pretrial conference, did not exist at the time of the defendant's convictions. In any event, even under the modern rule, "[a] defendant need not be present ... at any proceeding where evidence is not to be taken." Mass. R. Crim. P. 18 (a) (3), 378 Mass. 888 (1979). Moreover, even accepting the defendant's contention that he was denied a right to attend a pretrial conference, he has failed to raise any substantial issue as there is no affidavit from trial counsel to support this claim.

Additionally, based on the limited record before us, it is unclear whether trial counsel ever filed a motion for a required finding of not guilty. In the defendant's brief, he frames his request for a required finding of not guilty as a request for a jury instruction made by trial counsel. We are not presented with any motion, or record thereof, that was filed by trial counsel. Therefore, the defendant's argument that the trial judge failed to rule on any such motion is without merit. Even if we consider the defendant's challenge to the sufficiency of the evidence, the defendant fares no better. The defendant's argument, insofar as we understand it, rests on the assertion that the Commonwealth's identification evidence did not outweigh the evidence presented by the defendant's alibi witnesses. As the weight and credibility of the evidence are factors solely within the province of the jury, the defendant's argument fails. See Commonwealth v. Dubois, 451 Mass. 20, 28 (2008) ("The weight and credibility of the evidence is the province of the jury").

Likewise, the defendant's claim that the prosecutor's opening and closing statements denied him a fair trial is unsupported. Prosecutors may "argue forcefully for the defendant's conviction." Commonwealth v. Wilson, 427 Mass. 336, 350 (1998). The jury are presumed to understand that a prosecutor is an advocate, id. at 352, and statements that are "[e]nthusiastic rhetoric, strong advocacy, and excusable hyperbole" will not require reversal, id. at 350.

3. Evidentiary hearing. "A judge is required to conduct an evidentiary hearing on a motion for a new trial only if a substantial issue is raised by the motion or affidavits." Commonwealth v. Torres, 469 Mass. 398, 402 (2014). See Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). Here, the defendant's motion simply fails to raise a substantial issue. Accordingly, the judge did not abuse her discretion by denying the defendant's motion without an evidentiary hearing.

Order entered February 7, 2017, denying motion for new trial affirmed.

      In May of that same year, the defendant was convicted of two counts of felony unnatural acts and two counts of armed robbery. We previously affirmed the order denying his motions for new trial in that case. See Commonwealth v. McCants, 92 Mass. App. Ct. 1116 (2017). The present appeal only concerns his November convictions.

      The defendant also raises a claim based on the admission of his "mug shots" at trial. This issue was raised and addressed in his direct appeal. See Commonwealth v. McCants, 3 Mass. App. Ct. at 597-598. " '[A] motion for a new trial may not be used as a vehicle to compel a trial judge to review and reconsider questions of law' on which a defendant has had his day in an appellate court." Fogarty, 406 Mass. at 107, quoting Commonwealth v. McLaughlin, 364 Mass. 211, 229 (1973). Accordingly, we need not address this issue.


text:
    Sharon STOTSKY-HILMAN v. Nancy FREED & Another.
    18-P-63
    Appeals Court of Massachusetts.
    Entered: November 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Prince Lobel Tye LLP.

   The plaintiff, Sharon Stotsky-Hilman, appeals from a summary judgment dismissing her complaint for breach of contract against her former attorney, Nancy Freed, and Freed's law firm, Prince Lobel Tye LLP (collectively, defendants). The plaintiff claims that a Superior Court judge (motion judge) erred when he concluded that (1) her claim was barred by the statute of limitations, and (2) the defendants are entitled to judgment as a matter of law even if the claim was not time-barred. We affirm.

Background. The following material facts are undisputed. In October, 2007, the plaintiff's former husband filed for divorce. In March, 2008, the plaintiff met with Freed to discuss Freed representing her in the divorce. Freed provided the plaintiff with a written fee agreement that Freed had signed on behalf of the law firm. She verbally represented that the defendants would provide all necessary legal services in the divorce action at a cost of $25,000 to $100,000. Four days later, on March 17, 2008, the plaintiff signed the written fee agreement and returned it to the defendants along with a retainer of $25,000. In pertinent part, the fee agreement provided that (1) it represented the entire agreement between the parties, (2) the plaintiff had carefully read the agreement, understood its contents, and agreed to be bound by its terms, (3) the plaintiff was aware of her right to consult with another attorney prior to signing the agreement, and (4) the agreement could be amended only by a written instrument signed by both parties. The agreement set forth the hourly billing rates charged by partners, associates, law clerks and paralegals, but did not specify a total amount the defendants would charge the plaintiff for their services.

The defendants began work on the plaintiff's divorce after receiving the $25,000 retainer, and they billed the plaintiff on a monthly basis. Between March, 2008, and March, 2010, the plaintiff made fourteen separate payments to the defendants totaling $255,396.88. These payments included a total of $100,000 paid in six installments between March, 2008, and December, 2008, an additional $150,000 paid in seven installments between March, 2009, and December, 2009, and $5,396.88 on March 15, 2010. In March, 2010, the plaintiff terminated her relationship with the defendants and retained another attorney to represent her in the divorce.

On March 16, 2016, the plaintiff filed a complaint alleging, among other things, that the defendants did not conduct discovery, did not engage in settlement negotiations, and billed excessively for legal services. As to her claim for breach of contract, which was the only stated cause of action, the plaintiff alleged that she and Freed had agreed that the plaintiff would pay "somewhere between $25,000 and $100,000 in fees to complete the entire divorce." According to the plaintiff, Freed's oral representation that the cost would not exceed $100,000 constituted a contract that the defendants breached by charging her more.

On August 11, 2016, the defendants filed a motion to dismiss the complaint asserting that it was barred by the three-year statute of limitations applicable to claims for legal malpractice. A judge other than the motion judge allowed the motion with respect to allegations sounding in legal malpractice, reasoning that they were time-barred, but denied the motion as to "paragraphs of the complaint which arguably state claims for breach of contract." Thereafter, the defendants moved for summary judgment on the remainder of the plaintiff's complaint. The motion judge concluded that the "true nature of the contract claim is one of malpractice," which was therefore time-barred by the three-year statute of limitations applicable to tort actions. See G. L. c. 260, § 2A. Alternatively, he reasoned that even if the complaint alleged a breach of contract claim it was time-barred because it accrued more than six years before the plaintiff filed the action. See G. L. c. 260, § 2. Finally, the judge opined that the defendants were entitled to summary judgment on the merits inasmuch as the fee agreement was unambiguous and contained no cap on the legal fees.

Discussion. "We review the allowance of a motion for summary judgment de novo to determine whether the moving party has established that, viewing the evidence in the light most favorable to the opposing party, 'there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " Scarlett v. Boston, 93 Mass. App. Ct. 593, 596-597 (2018), quoting Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016).

Like the judge who considered the motion to dismiss, we interpret the plaintiff's complaint as one alleging both legal malpractice and breach of contract. The only claim before us however, is breach of contract, as the plaintiff did not appeal the order of September 14, 2016, which dismissed so much of the complaint as alleged legal malpractice. Accordingly, we focus on the breach of contract claim. The plaintiff alleges that she and the defendants entered into an agreement, supported by $25,000 in consideration, whereby the defendants would provide legal services for no more than $100,000. The plaintiff performed her part of the contract by paying for those legal services. Viewing the evidence in the light most favorable to the plaintiff, the defendants breached the agreement when they charged her more than $100,000, and the plaintiff suffered harm as a result.

An action for breach of contract must be commenced within six years after the cause of action accrues. See G. L. c. 260, § 2. The cause of action "accrues at the time of the breach." International Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc., 29 Mass. App. Ct. 215, 221 (1990). Here, it is undisputed that the plaintiff paid the defendants $100,000 between March, 2008, and December, 2008. She then paid $150,000 more in seven installments between March, 2009, and December, 2009. Thus, as of March, 2009, when she paid the first installment exceeding $100,000, the plaintiff knew that the defendants were in breach of the alleged oral contract. Any breach of contract action would therefore have to be filed by March of 2015. Because it is undisputed that the plaintiff's complaint was not filed until March 16, 2016, we discern no error in the motion judge's conclusion that it was not timely.

Finally, we are not persuaded by the plaintiff's argument that the statute of limitations was tolled by the continuing representation doctrine. That doctrine tolls the statute of limitations in legal malpractice actions, not in actions for breach of contract. See Murphy v. Smith, 411 Mass. 133, 137 (1991). Moreover, the continuing representation doctrine has no application where, as in this case, "the client actually knows that [s]he has suffered appreciable harm as a result of [her] attorney's conduct." Lyons v. Nutt, 436 Mass. 244, 250 (2002).

Judgment affirmed.

      The plaintiff would fare no better if we reached the merits. The fee agreement is unambiguous. Even if Freed orally represented to the plaintiff before the fee agreement was signed that her costs would not exceed $100,000, that representation cannot alter the plain terms of the agreement. See Balles v. Babcock Power Inc., 476 Mass. 565, 571 (2017) ("when the language of a contract is clear, it alone determines the contract's meaning"); EventMonitor, Inc. v. Leness, 473 Mass. 540, 549 (2016) ("A reviewing court considers extrinsic evidence only when a term in a contract is ambiguous").


text:
    COMMONWEALTH v. Francisco MORALES.
    17-P-1165
    Appeals Court of Massachusetts.
    Entered: November 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Francis Morales, appeals from his convictions, by a Superior Court jury, of larceny from a person in violation of G. L. c. 266, § 25 (b ), and conspiracy to commit armed robbery in violation of G. L. c. 274, § 7. On appeal, the defendant contends that the trial judge erred in his instructions to the jury regarding the evaluation of eyewitness identification testimony, and that the evidence supporting his identity as the perpetrator was insufficient to support the convictions. We affirm.

1. Jury instructions. The defendant contends, for the first time on appeal, that the jury instructions on eyewitness identification, requested by the defendant and given by the judge, gave insufficient guidance to the jury to evaluate the victim's identification testimony. Where, as here, "the defendant did not object to the jury instruction[s] at trial, we review his claim[s] to determine first whether there was error, and if so, we then inquire whether the error created a substantial risk of a miscarriage of justice." Commonwealth v. Marinho, 464 Mass. 115, 122 (2013).

The trial judge accepted the defendant's proposed instructions, with modifications to which the defendant agreed, and instructed the jury in accordance with Commonwealth v. Crayton, 470 Mass. 228 (2014). See Model Jury Instructions on Eyewitness Identification, 473 Mass. 1051, 1057-1058 (2015). The defendant points out that the victim's eyewitness identification of the defendant at trial was inconsistent with his previous statements to the police, and contends that the model instructions were inadequate to guide the jury's deliberations.

Where, as here, "the reliability of a positive eyewitness identification is an important issue at trial," the trial judge properly "instruct[ed] the jury regarding the evaluation of eyewitness identification testimony, including the possibility of a good faith error in identification." Commonwealth v. Franklin, 465 Mass. 895, 910 (2013). The instruction informed the jury of the factors they should consider. The trial judge appropriately instructed the jury to consider the credibility of each witness who made an identification and to consider whether the witness could have been mistaken in the identification. See id. The judge cautioned the jury that a witness's degree of certainty is not in itself, a measure of its accuracy, see Commonwealth v. Gomes, 470 Mass. 352, 369-372 (2015), and directed the jury to consider whether the witness "ever failed" to identify the defendant or made any identifications inconsistent with the witness's testimony at trial. See id. at 388.

The defendant further contends that the trial judge should have supplemented the instructions with a specific (although undefined) "earwitness" instruction. The instructions regarding identification adequately conveyed to the jury all of the factors needed to evaluate the credibility of each witness and the accuracy of any eyewitness or "earwitness" identifications. "The factors provided for the jury's consideration in assessing eyewitness testimony -- including the capacity and opportunity of the witness for observation, the timing of the identification, conditions at the scene, past contact between the witness and the defendant, and any failed or inconsistent identifications -- are applicable to assessing 'earwitness' testimony as well." Commonwealth v. Cruz, 445 Mass. 589, 596 (2005). The judge here instructed the jury that they could consider "what the witness claims to have seen or heard or felt with his or her own senses." There was no error.

2. Sufficiency of the evidence. The defendant claims error in the trial judge's denial of his motions for a required finding of not guilty because, he contends, the identification evidence was inherently contradictory and unreliable. We ask whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (quotation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). Commonwealth v. Williams, 54 Mass. App. Ct. 236, 245 (2002).

The defendant's contentions run to the weight of the evidence and the credibility of the witnesses, assessments which fall within the province of the jury. See Commonwealth v. Sylvia, 456 Mass. 182, 190-191 (2010) ; Cruz, 445 Mass. at 596. The defendant was known to the victim, who had had previous contact and conversations with the defendant. He described the defendant as having a unique voice. The jury heard the 911 recording of the victim's initial identification of the defendant, and heard the testimony of the responding police officer and investigating detective regarding the victim's eyewitness and "earwitness" identification of the defendant. The voice identification was consistent throughout, and sufficient to support the conviction. See Cruz, 445 Mass. at 593, quoting Commonwealth v. Mezzanotti, 26 Mass. App. Ct. 522, 527 (1988) ("a voice identification may be considered by a jury as long as the witness expresses some basic familiarity with the voice he or she claims to identify").

The victim's initial statements regarding who he saw were made in the immediate aftermath of the assault; the statement at the hospital was made while the victim was medicated. It was for the jury to decide whether the victim was under stress or in a medicated state when he first talked to the police, or whether he simply "improved" his eyewitness identification on retelling. The Commonwealth's evidence was sufficient to prove identity, and the trial judge properly denied the defendant's motions for a required finding of not guilty.

Judgments affirmed.

      The victim first identified the defendant as his assailant to the 911 operator, stating that he did not see his assailant in the dark but recognized his voice. He told the responding police officer and the detective who interviewed him at the hospital later that morning that he did not see his assailant, but recognized his voice as the defendant's. He was acquainted with the defendant and described his voice as a "deep, harsh-y voice," accented, and "[v]ery distinctive." The victim then testified at trial that although he first identified the defendant by his voice in the dark, he was also able to visually identify the defendant by the light of the "[v]ery bright" screen of the "50-inch HD/LED" television that he keeps on "[t]wenty-four hours a day." Defense counsel cross-examined the victim at length about his identification of the defendant and whether it was based on voice or visual recognition. He argued in his closing that the victim's testimony identifying the defendant was essentially mistaken, unreliable, and contradicted by his prior contemporaneous statements to the 911 operator and the police.

      For the same reasons, even if there were an error, which there was not, there is no substantial risk of a miscarriage of justice. See Marinho, 464 Mass. at 122.