text:
    ADOPTION OF BEDELIA.
    18-P-272
    Appeals Court of Massachusetts.
    Entered: October 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   The father of Bedelia appeals from a decree of the Juvenile Court terminating his parental rights and ordering up to two supervised visits per year. He contends (1) that the judge abused her discretion by denying his request for a continuance of the trial, (2) that several of the judge's factual findings are clearly erroneous, undermining her ultimate termination decision, and (3) that the judge abused her discretion by terminating the father's parental rights and ordering only two visits per year. We affirm.

Discussion. 1. Denial of continuance. The Department of Children and Families (DCF) initiated care and protection proceedings on June 3, 2015, upon the father's arrest on charges of violence against a household member, his father (paternal grandfather). The father was arraigned on another set of charges and held until June 27, 2015, when he was given a suspended two-year sentence and a term of probation. Within a few months he violated the terms of probation and was imprisoned; he remained incarcerated until February, 2017.

The same judge presided over this case from its inception. She originally scheduled trial for January 11, 2017. On that date the father requested a continuance until April or May, after his release from prison, to give him time to "set himself in a situation where he can take care of [Bedelia]." DCF did not object, but counsel for the child pressed for an earlier date, arguing that "the child needs resolution, legal resolution. She's been in legal limbo for two years." The judge continued the trial to March 23, 2017. On that date, with the father present, the judge allowed the parties' joint request for a continuance until April 25, 2017, with "[n]o further continuances."

The father was not present when trial commenced on April 25, 2017. The father's counsel submitted exhibits and called his first witness, clinical psychologist Dante Spetter. After DCF put on its two witnesses and the judge denied the father's motion for a directed verdict, the father's counsel expressed his desire to call the father as a witness. Because the father was not present and counsel could not explain his absence, counsel asked for a further continuance. The judge denied the motion, noting that the father was present in court when she set the trial date and stated there would be no further continuances.

"The decision on whether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge, and the judge's decision will be upheld absent an abuse of that discretion." Adoption of Gillian, 63 Mass. App. Ct. 398, 409-410 (2005). The father offered no reason or explanation for his absence at trial and made no claim that it was caused by circumstances beyond his control. See Adoption of Talik, 92 Mass. App. Ct. 367, 372-373 (2017) ; Care & Protection of Quinn, 54 Mass. App. Ct. 117, 122 (2002). Moreover, "[o]ther interests, specifically the paramount interests of the children involved, argued against the delay." Care & Protection of Quinn, supra. The father was represented by counsel and had a meaningful opportunity to be heard. Id. He has not shown that the judge abused her discretion.

2. Factual findings. "In determining whether to dispense with parental consent to adoption, a judge must 'evaluate whether the [parent is] able to assume the duties and responsibilities required of a parent and whether dispensing with the need for parental consent will be in the best interests of the child[ ].' " Adoption of Nancy, 443 Mass. 512, 514 (2005), quoting Adoption of Mary, 414 Mass. 705, 710 (1993). See G. L. c. 210, § 3 ; Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). The judge must conduct a two-part analysis: the judge must first determine "parental unfitness by clear and convincing evidence," and "[a]fter ascertaining unfitness, the judge must determine whether ... it would be in the child's best interests to end all legal relations between parent and child." Adoption of Nancy, supra at 515. The two inquiries "are not separate and distinct, but 'reflect different degrees of emphasis on the same factors.' " Id., quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 641 (1975). "We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011).

The judge concluded that the father's persistent problems with substance abuse, criminal activity, domestic violence, and housing rendered him an unfit parent, and that these issues would continue unabated in the future. The father argues that four of the judge's subsidiary findings were clearly erroneous, undermining her ultimate conclusion.

Before terminating parental rights, the judge must "make specific and detailed findings, demonstrating that close attention has been given to the evidence." Adoption of Gregory, 434 Mass. 117, 126 (2001). The judge's subsidiary findings of fact must be supported by a preponderance of the evidence and will not be disturbed unless clearly erroneous. Id. A subsidiary finding is clearly erroneous when there is no evidence to support it, or when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Custody of Eleanor, 414 Mass. 795, 799 (1993), quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977).

a. Housing instability. The facts showed clearly and convincingly that the father was unable to provide stable housing for Bedelia. He removed her from Florida to the paternal grandfather's home in East Boston to shelter her from the mother's violence and other issues, yet he soon allowed the mother to move in with them, against the paternal grandfather's wishes, resulting in a chaotic household. The mother's arrival led to a domestic violence incident between the father and the paternal grandfather. The father's consequent arrest left the child and the mother homeless. After this incident, the father stayed with friends in Lynn and Salem until his imprisonment. Upon his release he went back to live with the paternal grandfather. He cancelled an attempted home visit by DCF on March 21, 2017, because he had to work -- yet on that same day he quit the job he had held for only two weeks. Three days before trial he claimed to have obtained housing in Melrose, a fact that DCF could not verify, largely because the father did not respond to the social worker's attempts to contact him.

The father argues that the judge erred by finding that he "refused" to schedule a home visit. While describing the father's lack of diligence in scheduling home visits as a "refusal" may be an overstatement, the facts, combined with the father's inability to secure employment or income, clearly and convincingly demonstrate the father's inability to provide a stable home for the child, or even for himself.

b. Substance abuse. The father's substance abuse problems, and his inconsistent and unsuccessful attempts to comply with treatment programs, are well documented. The father claims that the judge's findings in this regard are undermined by her erroneous conclusion that he had a "history of rescinding releases," where the record demonstrates only one such rescission. However, the record also shows that he failed to provide documentation of his completion of Alcoholics Anonymous and Narcotics Anonymous programs, with no explanation for his failure to do so, and that the social worker who was assigned to the father since his release from prison was denied information about his treatment at the Medicated Assisted Pathway program because her name was not on the release form. The record supports the judge's determination that the father's substance abuse was a serious shortcoming that repeatedly put the child's welfare at risk.

c. Domestic violence. The record supports the judge's finding that the relationship between the father and the mother was "permeated with domestic violence." An incident of the mother slapping the father in the face prompted him to relocate to Massachusetts with the child, yet he soon allowed the mother to move in with them. This, in turn, led to another instance of domestic violence, between the father and the paternal grandfather. The child witnessed both of these incidents. The facts support the judge's determination that domestic violence was a factor in the parents' relationship, and that the father has not adequately endeavored to address it. See Custody of Vaughn, 422 Mass. 590, 595 (1996) ("[P]hysical force within the family is both intolerable and too readily tolerated, and ... a child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm").

d. Missed visit. Finally, the father takes issue with the judge's characterization of his visits with Bedelia as "inconsistent," where he only missed one scheduled visit, on April 21, 2017. That, however, was a crucial visit, on the eve of trial, and his unexplained failure to attend the visit, coupled with his unexplained absence from trial, indeed demonstrate an inconsistent commitment to his parenting responsibilities. In addition, the father's disciplinary infractions while incarcerated resulted in the postponement or rescheduling of a number of visits.

Based on our careful review of the record and of the judge's detailed and comprehensive findings, we conclude that the termination decision "reflect[s] an even-handed assessment of all the relevant facts." Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 261 (1978). Notwithstanding a few instances of hyperbole, the judge's ultimate conclusion has clear and convincing evidentiary support. See Adoption of Peggy, 436 Mass. 690, 702 (2002) (while "two minor findings may have been incorrect," "[b]ecause they relate only marginally, if at all, to the judge's ultimate conclusion of unfitness, we consider them harmless"); Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003) ("The two clearly erroneous findings, considered singly or in the aggregate, are not central to the ultimate conclusion of unfitness. Even without those findings, that conclusion has clear and convincing evidentiary support").

3. Termination and visitation decisions. The father argues that the judge's decision to terminate his parental rights was premature, as he had only recently been released from imprisonment and was making efforts to comply with his service plan. While "[a] judge may properly be guided by evidence demonstrating reason to believe that a parent will correct a condition or weakness that currently disables the parent from serving his or her child's best interests," Adoption of Carlos, 413 Mass. 339, 350 (1992), the evidence clearly and convincingly supports the judge's conclusion, based on the father's history and his more recent conduct in prison and after his release, that his "shortcomings will continue undiminished in the future."

Nor did the judge abuse her discretion in ordering posttermination visitation two times per year. The judge credited psychologist Spetter's opinion that the child had a "secure attachment" to the father, and noted Spetter's opinion that keeping the father as an ongoing presence in the child's life would "help mitigate risks, if any, associated with [the father's] potential separation." The judge also found a strong bond between the child and her foster parents (who planned to adopt her). The judge appears to have erred in finding that "Dr. Spetter did not form an opinion as to whether [Bedelia] formed a positive attachment to Father or the foster parents first" -- Spetter in fact testified that the father was the child's "[p]rimary as in first" attachment figure. Taking all the evidence into account, the judge concluded that "posttermination and post-adoption visitation with Father is in [Bedelia's] best interest." The judge ordered "up to two visits per year," subject to review based on the adoptive parents' assessments and the child's wishes.

The judge's order demonstrates that she did not, as the father argues, ignore the attachment evidence. Although Spetter testified that two visits would be better than none, and that weekly or biweekly visits would be ideal, the judge was not obligated to adopt his recommendation. A judge must balance the benefit of an order of visitation with the intrusion that such an order imposes on adoptive parents, "who are entitled to the presumption that they will act in their child's best interest." Adoption of Ilona, 459 Mass. at 64-65. "[T]he judge considered the relevant factors and her decision did not 'fall[ ] outside the range of reasonable alternatives.' " Adoption of Garret, 92 Mass. App. Ct. 664, 676-677 (2018), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

"In sum, while we appreciate that the [father] has made commendable efforts and has shown concern and affection for [Bedelia], we conclude that the judge did not abuse [her] discretion or commit a clear error of law in determining that the [father] is unfit, that [his] condition is not temporary, and that termination of [his] rights is in [Bedelia]'s best interests." Adoption of Jacques, 82 Mass. App. Ct. at 609.

Decree affirmed.

      The judge also acted within her discretion in drawing an adverse inference from the father's unexplained absence. See Adoption of Talik, supra at 371-373.

      The judge also wrote that the mother and the father "have a long history of substance abuse, domestic violence, criminality, housing instability and inability to care for their child." While "long history" may not be an accurate descriptor of the parents' domestic violence, it is accurate as to all the other factors referred to in the sentence.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Jose Luis MALDONADO.
    17-P-297
    Appeals Court of Massachusetts.
    Entered: October 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial, the defendant was convicted of two counts of leaving the scene of an accident involving personal injury and one count each of reckless operation of a motor vehicle, operating a motor vehicle under the influence of drugs, possession of a class E substance, and leaving the scene of an accident involving property damage. On appeal, he claims that the trial judge erred in denying his motions for required findings of not guilty because there was insufficient evidence and improperly refused to exclude a juror for cause. We affirm.

1. Sufficient evidence. The defendant claims that there was insufficient evidence to support his motor vehicle convictions as there was insufficient corroboration of his admission to operation of the vehicle. We disagree. In reviewing the sufficiency of the evidence, we consider "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." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). Where the sufficiency of evidence corroborating an admission "is tested by a motion for a required finding of not guilty, the standard of review may be less demanding of the prosecution than the familiar test of ... Latimore." Commonwealth v. Landenburg, 41 Mass. App. Ct. 23, 25 (1996). A defendant cannot be convicted based solely on evidence of his uncorroborated extrajudicial confession. See Commonwealth v. Forde, 392 Mass. 453, 457-458 (1984). However, the standard for that necessary corroboration is low. That is, to corroborate an admission, there must merely "be some evidence besides the confession, that the criminal act was committed by someone, that is, that the crime was real and not imaginary." Id. at 458. Also, "[t]he corroborating evidence need not point to the accused's identity as the doer of the crime." Id.

Here, the Commonwealth presented evidence that after the accident, the defendant, at two different times, stated to police that he had been driving the vehicle that had been in the accident and had left the scene to seek a tow truck. At trial, the defendant claimed that he admitted to operation because he did not think that the police would believe he was not driving his vehicle. In support of his claim, the defendant relies on Commonwealth v. Leonard, 401 Mass. 470 (1988), to argue that there was insufficient corroboration of his extrajudicial admission. However, Leonard is distinguishable. In Leonard, absent the extrajudicial admission of the defendant that he had been driving the vehicle, there was only speculative evidence that a crime had occurred, where there was another potential driver who testified she was the driver (and sober) and the crime charged was operating under the influence of alcohol with no accident or other circumstantial evidence presented. See id. at 472-473.

Here, soon after the accident involving two vehicles that were hit by a third vehicle that had left the scene, police found the defendant's damaged vehicle near the accident scene. An officer then contacted the defendant who admitted that he had been driving and that "he was involved in an accident ... and ... left the scene to get a tow truck." Soon thereafter, police located the defendant walking near the accident scene and he admitted to a second officer that he was driving his vehicle, was involved in an accident, and left to call a tow truck. This was sufficient to corroborate the defendant's admission.

The defendant also argues that the evidence as a whole is insufficient on the charges he operated recklessly, operated under the influence of drugs, or left the scene of an accident. We disagree. In the light most favorable to the Commonwealth, the jury could have found the following. The defendant was the driver of the vehicle that crashed into two parked vehicles as his admission was sufficiently corroborated. The jury were entitled to disbelieve the defendant's testimony that someone else was operating the vehicle at the time of the accident. See Commonwealth v. Platt, 440 Mass. 396, 403 (2003). The accident occurred in good weather on a straight road that was well lit. The defendant left the scene of the accident, which had caused both injury and property damage. Soon after the accident, a drug-recognition trained police officer examined the defendant and found him to be under the influence of a drug other than alcohol. The facts and circumstances of the accident provide sufficient evidence that the defendant operated the vehicle recklessly. The defendant was in possession of a class E substance as there were prescription pills that were not his own in his vehicle he was operating. The Commonwealth presented sufficient evidence to survive the motions for required findings.

Right to impartial jury. The defendant also claims that he was denied his right to an impartial jury because the judge abused his discretion in failing to excuse for cause juror no. 26, a Massachusetts State police officer who had previously worked with the prosecuting Hampden County District Attorney's Office and had testified in criminal matters at that court. We disagree. "Article 12 and the Sixth Amendment, applied to the States through the due process clause of the Fourteenth Amendment, guarantee the right of a criminal defendant to a trial by an impartial jury." Commonwealth v. Long, 419 Mass. 798, 802 (1995). "A trial judge is accorded considerable discretion in the jury selection process and his finding that a juror stands indifferent will not be disturbed except where juror prejudice is manifest." Commonwealth v. Clark, 446 Mass. 620, 629-630 (2006).

Here, juror no. 26 was unequivocal in responding to the trial judge that he could be fair and impartial regarding the case. Juror no. 26 was also unequivocal in asserting that he had no connection to this case or to the parties involved. The defendant nonetheless claims that, even though "[t]here was no display of conscious bias during the voir dire of" juror no. 26, nevertheless, "he may have been more likely to support the government." The possibility of a juror's potential bias is not grounds to support a conclusion that the judge abused his discretion in refusing to excuse a juror for cause. Rather, "[w]here, as here, the judge who had the opportunity to observe the prospective juror, makes a determination that the juror is indifferent after exploring the grounds for a possible claim that the juror was not impartial, we cannot conclude, in the absence of any affirmative evidence to the contrary, that the judge abused his discretion." Commonwealth v. Ascolillo, 405 Mass. 456, 461 (1989), quoting Commonwealth v. Amazeen, 375 Mass. 73, 83 (1978). There was no abuse of discretion.

Judgments affirmed.

      The defendant does not argue that there was insufficient evidence presented that the operator of the vehicle possessed a class E substance.


text:
    Warren C. TYLER v. BOSTON MEDICAL CENTER & others.
    17-P-1440
    Appeals Court of Massachusetts.
    Entered: October 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Sharon Falk, Kalev Freeman, Jeffrey Salerno, Joseph Kahn, Linda Mason, Pieter Noordzij, Glenn Barest, Dina Beaton, and John McMahon.

   The plaintiff, Warren C. Tyler, appeals from the dismissal of his medical malpractice complaint in view of Tyler's failure to post a bond. We affirm.

On appeal, Tyler first argues that a Superior Court judge improperly declined to appoint counsel to represent him. Where, as here, the only interest at stake "is a mere property interest," there is no right to appointed counsel. Genninger v. Genninger, 418 Mass. 732, 735 (1994). No exceptional circumstances warrant deviation from this principle in this case.

Second, Tyler alleges that it was error for a different Superior Court judge to deny his motion to reduce the $6,000 bond required by G. L. c. 231, § 60 B, which resulted in the dismissal of his case. An appeal from an order denying a request for a reduction in bond should be brought to a single justice of this court within seven days of the order's entry. G. L. c. 261, § 27 D. See Perez v. Bay State Ambulance & Hosp. Rental Servs., Inc., 413 Mass 670, 678 (1992). Tyler did not notice an appeal from the order denying his motion to reduce the bond as provided for in G. L. c. 261, § 27 D. Instead, almost two months after the order entered, Tyler filed a petition with the single justice of this court under G. L. c. 231, § 118, first par. A single justice denied Tyler's petition on September 1, 2017. There is no right of appeal from the single justice's order. See McMenimen v. Passatempo, 452 Mass. 178, 189-190 (2008). Therefore, the issue of § 60B's bond requirement is not properly before us.

Judgment affirmed.

      A different single justice properly struck Tyler's notice of appeal.


text:
    COMMONWEALTH v. Scott M. ZAGWYN.
    17-P-462
    Appeals Court of Massachusetts.
    Entered: October 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant, Scott Zagwyn, of operating a vehicle under the influence of alcohol (OUI) and negligent operation of a motor vehicle. The arresting officer testified that, based upon his interactions with and observations of the defendant, the defendant was "too intoxicated to operate [a] vehicle that night." The defendant appeals his conviction, arguing there was insufficient evidence to support his convictions of OUI and negligent operation of a motor vehicle, and the officer's improper testimony created a substantial risk of a miscarriage of justice. Although we agree the officer's testimony was improper, the evidence was sufficient to convict the defendant, and any prejudice the officer's testimony caused was overcome by the other evidence presented and the judge's jury instructions. Accordingly, we affirm.

1. Background. We recite the facts as the jury could have found them in the light most favorable to the Commonwealth. On May 23, 2015, the defendant was staying in Truro and he and three friends went to a bar in Hyannis. The group arrived at 9 P.M. and left the bar around 10:30 P.M. , during which time the defendant claimed he had two beers. The quartet then took a cab to another friend's house, but upon arrival were immediately turned away and returned to the bar where their car was parked. According to the defendant's testimony, the four men, weary of embarking on the one-hour drive back to Truro in their current condition, slept in the car for three and one-half hours.

At approximately 2:40 A.M. the following morning, a Barnstable police officer observed the defendant's vehicle enter a rotary with only one headlight illuminated. The officer followed the vehicle for about one mile before signaling it to pull over. The officer did not observe the vehicle speed or drive erratically. When the officer approached the vehicle, the defendant immediately asked why he had been stopped, and the officer noticed a strong odor of alcohol on the defendant's breath. The defendant's eyes were "glassy and bloodshot" and his speech "thick and slurred." The officer asked the defendant if he drank alcohol that evening, and the defendant admitted to having two drinks. The officer asked the defendant to perform field sobriety tests and whether the defendant's leg brace, or any other ailment, would hinder his performance. The defendant consented and said he was capable of performing the tests. The defendant took three tests, each of which was explained to the defendant and each of which, in the officer's view, the defendant failed. The officer then placed the defendant under arrest and transported him to the police station for booking.

2. Discussion. a. Sufficiency of the evidence. We review the denial of a motion for a required finding of not guilty to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). We consider the evidence, along with any reasonable inferences drawn therefrom, as it stood at the time the Commonwealth rested and the defense filed its motion for a required finding, unless the Commonwealth's proof deteriorated after it rested. Cramer v. Commonwealth, 419 Mass. 106, 112-113 (1994).

The defendant argues the evidence was insufficient to support a jury finding that he was "under the influence of intoxicating liquor" and, in turn, driving negligently. See G. L. c. 90, § 24 (1) (a ) (1) & (2) (a ). First, the defendant did not renew his motion for a required finding and the Commonwealth's case did not deteriorate, so we review the evidence as it appeared when the Commonwealth rested. The defendant claims the Commonwealth's case deteriorated upon his explanation for his poor performance in the sobriety tests, but contradiction is not deterioration and in these circumstances the jury are simply left to decide which testimony is to be believed. See Cramer, 419 Mass. at 113. Second, contrary to the defendant's contention, these convictions do not require additional evidence of erratic driving, belligerence, or lack of cooperation, those factors merely contribute to a finding that the defendant was impaired or drove negligently. See Commonwealth v. Connolly, 394 Mass. 169, 173 (1985) (Commonwealth need not prove actual erratic or unsafe driving, only diminished capacity to drive). Moreover, the jury could have reasonably construed the defendant's interactions with the arresting officer as belligerent and uncooperative.

Here, the evidence was sufficient. The prosecution presented testimony indicating the defendant failed to follow instructions and perform adequately on three field sobriety tests and had bloodshot eyes, slurred speech, and the odor of alcohol emanating from his breathe. The booking officer also described the defendant as "extremely drunk," and in fact a video of the defendant when that officer made that observation was played for the jury. The defendant may have innocent explanations for all of these acts or conditions, but the jury were free to accept or reject those explanations based upon their assessment of the evidence and the reasonable inferences to be drawn therefrom.

b. Opinion testimony. The law is well settled that a police officer, as a lay witness, may not testify to whether or not a defendant was too impaired to operate a motor vehicle. See Commonwealth v. Canty, 466 Mass. 535, 544 (2013) (officer may opine on impairment, but not ability to drive); Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 388-389 (2017) (accord). The defense attorney did not object to the officer's improper testimony, so we review this unpreserved error for a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002). See Commonwealth v. Delong, 72 Mass. App. Ct. 42, 47 (2008) (ineffective assistance of counsel claims based on failure to object reviewed for substantial risk of miscarriage of justice).

The officer's testimony did not create a substantial risk of a miscarriage of justice. Although it is true a conviction may not rest on pure "conjecture and speculation," proof beyond a reasonable doubt "may be primarily or entirely circumstantial." Commonwealth v. Lao, 443 Mass. 770, 779 (2005). As outlined above, the prosecution submitted substantial direct and circumstantial evidence indicating the defendant had imbibed enough to impair his ability to drive. Not only did the defendant admit to having had at least two alcoholic drinks that evening, he acknowledged he was on medication and he was not supposed to mix that medication with alcohol, and he appeared unstable to the arresting and booking officers. Additionally, the judge instructed the jurors multiple times that they were free to credit or discredit any testimony they heard, and ultimately it was up to them to use their own common sense and experience when considering "any believable evidence about the defendant's alleged consumption of alcohol, his appearance, his condition, and behavior at the time." See Canty, 466 Mass. at 545 (jury instructions diminish likelihood of prejudice). Although the evidence may not have been as overwhelming or the jury instructions as explicit as in Canty and Gallagher, the evidence presented and instructions given were sufficient to prevent the officer's testimony from causing a substantial risk of a miscarriage of justice.

Judgments affirmed.

      After a jury-waived trial, he was also convicted of OUI as a subsequent offense (third offense).

      The conviction of negligent operation of a motor vehicle was docketed as placed on file. The transcript reflects that the defendant received a sentence of probation on this count. The defendant appeals this conviction.

      The defendant stipulated to the first two elements of both charges, (1) operating a motor vehicle (2) on a public way.

      For instance, the officer testified that the defendant "immediately demanded to know why he'd been stopped," and when asked his highest level of education responded he went to "the school of hard knocks." The defendant's conduct in the booking video played for the jury also may have been construed as nonchalant if not uncooperative.

      When asked whether he formed an opinion on the defendant's sobriety, the arresting officer stated, "I determined that, based on the tests and my observations that, he was too intoxicated to operate the vehicle that night."


text:
    John EVANS v. Anthony MENDOSA & others.
    17-P-567
    Appeals Court of Massachusetts.
    Entered: October 15, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Jeff Cardin; Bruce Gelb; P.O. Giamrocco; Brian McDonald; Pamela O'Dell; Luis Spencer; Tocci John; Osvaldo Vidal; and Superintendent, MCI-Norfolk.

   John Evans, a prisoner in custody at the Massachusetts Correctional Institute at Norfolk (MCI-Norfolk), filed this pro se action seeking monetary damages arising from the loss by correctional staff of his religious medallion. Following a hearing, a Superior Court judge allowed the defendants' motion under Mass. R. Civ. P. 12 (b ) (6), 365 Mass. 754 (1974), to dismiss the plaintiff's complaint for failure to state a claim upon which relief may be granted. On appeal, Evans argues that the judge's dismissal was improper because the Department of Correction (DOC), failed to honor its obligation to safeguard his property. We affirm for the reasons discussed below.

Background. As alleged, Evans owned a religious medallion and associated chain. Evans requested that the DOC hold his jewelry in its property safe. The DOC approved Evans's request, and placed the jewelry in a safe on August 11, 2011. In 2012, prison staff informed Evans that his medallion and chain were missing. The DOC eventually recovered Evans's chain but not the medallion. Evans filed a grievance with the DOC regarding the missing medallion. The DOC allowed Evans's grievance in substantial part and offered to reimburse him fifty dollars. Evans, dissatisfied with the DOC's offer, filed this negligence and civil rights action.

Discussion. Pursuant to Mass. R. Civ. P. 12 (b ) (6), the court may dismiss a complaint that fails to "state a claim upon which relief can be granted." On appeal, the court considers a 12 (b ) (6) ruling de novo, and takes all allegations as true, drawing reasonable inferences in the plaintiff's favor. See Iannacchino v. Ford, 451 Mass. 623, 626 n.7 (2008). Accordingly, the court should dismiss a complaint only if there are no provable facts entitling the plaintiff to relief. See id.

In general, a plaintiff may not sue a branch of the Commonwealth unless that branch waives its sovereign immunity, although a plaintiff may sue a State official in his or her individual capacity. See O'Malley v. Sheriff of Worcester County, 415 Mass. 132, 141 n.13 (1993) ("to avoid a State's sovereign immunity to a damages suit, a plaintiff must sue the State official in his individual and not his official capacity"); Vining v. Commonwealth, 63 Mass. App. Ct. 690, 690-692 (2005) (emphasizing sovereign immunity). Here, Evans argues that the DOC negligently secured his religious chain and medallion in the prison. Evans does not allege that any of the defendants from the DOC acted in anything other than their official capacities. See O'Malley, supra.

Accordingly, Evans's claim could only proceed, if at all, under the Massachusetts Tort Claims Act (Act), G. L. c. 258. Under the Act, "public employers shall be liable for ... loss of property ... caused by the negligent or wrongful act or omission of any public employee ... in the same manner and to the same extent as a private individual under like circumstances." G. L. c. 258, § 2. The Act, however, specifically bars claims arising "out of an intentional tort," as well as claims arising out of the "lawful detention of any goods or merchandise by any law enforcement officer." G. L. c. 258, § 10 (c ) - (d ). Courts have interpreted "law enforcement officer" broadly to include court officers and correction officers. See Vining v. Commonwealth, 63 Mass. App. Ct. at 694-695. Consequently, when "property is lost as a result of negligence of [correction] officers, the Commonwealth is immune because any such loss arose in relation to or out of the lawful detention of property by law enforcement officers." Id. at 695.

Here, Evans first argues that "staffs [sic ] carelessness of leaving the safe open and unattended" caused the loss of his medallion. Given that the Commonwealth is immune from suits arising from the negligence of correction officers, which would include the staff at MCI-Norfolk, for claims arising out of the lawful detention of any goods, which would include the storage of Evans's medallion, § 10 of the Act would bar Evans's claim. See G. L. c. 258, § 10 (d ) ; Vining, 63 Mass. App. at 695.

Additionally, Evans argues that another inmate "stole[ ]" his medallion from a safe in MCI-Norfolk. An intentional theft is an "intentional tort" under § 10 (c ) of the Act, therefore this section of the Act would also bar Evans's claim. See G. L. c. 258, § 10 (c ).

If for no other reason, see Vining, supra (Act "supersedes any contradictory law"), Evans's attempt to recast his claim as one for breach of contract is waived, because he did not assert a contract claim either in his complaint, or at the hearing on the motion to dismiss. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006), quoting Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (noting "issue not raised or argued below may not be argued for the first time on appeal"). Evans may not assert this breach of contract claim for the first time on appeal. See id.

To the extent we have not specifically commented, we have considered and found Evans's remaining arguments to be without merit. See Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004). We affirm the judgment dismissing Evan's complaint.

So ordered.

Affirmed.

      Evans also appears to argue that the DOC deprived him of his civil rights, in violation of 42 U.S.C. § 1983 (2012). However, Daniels v. Williams, 474 U.S. 327, 328 (1986), held that "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of ... property."


text:
    Nnenna OBI v. Chukwudera OKOLI.
    17-P-1394
    Appeals Court of Massachusetts.
    Entered: October 15, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Chukwudera Okoli (husband) appeals from an order denying his motion to vacate a divorce judgment. We affirm.

The husband and Nnenna Obi (wife) were married in 2010; this was both parties' second marriage. The wife filed for divorce in 2015 and a divorce judgment entered in November, 2016. The husband filed two functionally identical motions to vacate the divorce judgment in April and again in May, 2017. A Probate and Family Court judge denied the motion without comment after a May, 2017, hearing.

In seeking to vacate the divorce judgment, the husband charged, in substance, that the wife's earlier Nigerian marriage had not properly been terminated, that the parties therefore never had been legally married, and that the wife allegedly produced in discovery a "fake" certified dissolution certificate. The husband did not raise these issues before or during the divorce trial. Had he done so they could have been considered properly and, if necessary, any decision could have been reviewed on an appropriate appellate record. Additionally, the husband made no attempt to explain why he did not earlier bring this matter to the trial judge's attention or was unable earlier to discover the wife's alleged fraud. In short, it appears that the husband "essentially used [Mass. R. Dom. Rel. P.] ... 60 (b) as a means of appeal when no extraordinary circumstances existed to justify relief under the rule." Jones v. Boykan, 464 Mass. 285, 291-292 (2013). See Wojcicki v. Caragher, 447 Mass. 200, 213 (2006), quoting Leavitt v. Mizner, 404 Mass. 81, 89 (1989) ("Evidence is considered 'newly discovered' in this context only if it was 'unknown and unavailable at the time of trial despite the diligence of the moving party' ").

We also observe that, insofar as the record before us shows, the husband's motion was unsupported by affidavit, and he did not authenticate the foreign documents purportedly supporting his claim. See Mass. G. Evid. § 901(a) (2018) ("To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is"). More specifically, neither letter shows a certification attesting that it is, in fact, an official governmental communication, and both letters appear facially irregular. Neither letter was addressed to the husband or to any other person available to the court for examination. And no witness testified, either by affidavit or otherwise, that either letter was, in fact, what either purports to be. Neither document was admissible. See NationsBanc Mtge. Corp. v. Eisenhauer, 49 Mass. App. Ct. 727, 734-735 (2000) (documents produced by deponent in deposition not admissible at trial where deponent "was not the custodian of the records, and ... [the] keeper of the records did not testify concerning this evidence").

In this light, the judge was left with nothing before him other than the husband's unsupported postjudgment claim, contrary to his trial concession, that the wife's first marriage had not properly been terminated. The judge did not abuse his discretion. See Tai v. Boston, 45 Mass. App. Ct. 220, 224 (1998) (decision on motion for relief from judgment reversed only on showing of clear abuse of discretion). See also L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (judge does not abuse discretion absent "a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives" [quotation omitted] ).

The wife did not file a notice of appeal from the single justice's decision granting the husband's request, made under Mass. R. A. P. 14 (b), as amended, 378 Mass. 939 (1979), to enlarge the time within which the husband could file a notice for his present appeal; we do not further consider her challenge to our appellate jurisdiction. We deny the wife's request for appellate attorney's fees.

Order entered May 10, 2017, denying motion to vacate judgment affirmed.

      The husband designated only the order denying his motion for relief from judgment in his notice of appeal. Accordingly, another order entered May 10, 2017, denying the husband's motion to stay all orders relevant to divorce judgment is not before us. See Mass. R. A. P. 3 (c), as appearing in 430 Mass. 1602 (1999); Robinson v. Boston, 71 Mass. App. Ct. 765, 771 (2008).

      The first document, dated December 28, 2016, is addressed to Felix Jegede in Lagos, Nigeria, and purportedly is signed by the assistant chief registrar of the Lagos State Judiciary. The second document, dated March 17, 2017, is addressed to Dennis Ezika of Prudent Attorneys in Lagos, Nigeria, and it also purportedly is signed by the assistant chief registrar of the Lagos State Judiciary.


text:
    Paul MCKINNON & another v. Robert R. BERLUTI & another.
    17-P-1525
    Appeals Court of Massachusetts.
    Entered: October 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Theodore Olivo.

      Berluti, McLaughlin & Kutchin, LLP.

   The plaintiffs, Paul McKinnon and Theodore Olivo, appeal from a Superior Court judgment entered on November 22, 2016, for the defendants, Robert R. Berluti and Berluti, McLaughlin & Kutchin (BKU). The trial judge reserved for herself the plaintiffs' G. L. c. 93A claim, and the plaintiffs' contract and negligence claims were submitted to a jury. The jury returned a verdict in favor of the defendants on September 26, 2016. On appeal, the plaintiffs assert that the judge's findings and rulings on the G. L. c. 93A claim were clearly erroneous. For the reasons set forth below, we affirm.

Background. The case before us arises out of a prior lawsuit in which BKU represented the plaintiffs, who worked as commissioned salesmen for Lindenmeyr Monroe. In that lawsuit, the plaintiffs claimed that Lindenmeyr Monroe did not pay all commissions due them. In September, 2009, McKinnon entered into a written fee agreement with Berluti. Olivo was not a party to the agreement. That agreement included a provision whereby Berluti would take the greater of the contingent one-third of a lump settlement or a court-approved award of attorney's fees. An attempt at mediation in April, 2011, before Federal magistrate judge Jerome Niedermeier was not successful. Nevertheless, Berluti, with the express approval of McKinnon, continued negotiations with David Kerman, attorney for Lindenmeyr Monroe, with the "objective" of obtaining adequate and fair damages amounts for each McKinnon and Olivo, including having Lindenmeyr Monroe pay Berluti's attorney's fees directly. The matter ended with a settlement agreement by which Lindenmeyr Monroe paid $215,000 to Berluti in attorney's fees, $60,000 to McKinnon, and $95,000 to Olivo. Both McKinnon and Olivo expressed in writing their satisfaction with the amounts negotiated on their behalf, and each signed settlement agreements that reiterated the breakdown of the three payments by Lindenmeyr Monroe.

On May 7, 2013, nearly two years after McKinnon signed the settlement agreement, McKinnon and Olivo initiated this action by sending a G. L. c. 93A demand letter to Berluti and BKU alleging, among other things, that Berluti violated the original contingent fee agreement he had with McKinnon by taking more than one-third of the combined settlement amount.

Discussion. Chapter 93A. The plaintiffs assert that the trial judge committed clear error in her findings in support of her ruling that judgment should be entered for the defendants on the plaintiffs' G. L. c. 93A claim, which is the only remaining cause of action in this case. We review the judge's findings of fact for clear error and her rulings of law de novo. Cavadi v. DeYeso, 458 Mass. 615, 624 (2011). "A ruling that conduct violates G. L. c. 93A is a legal, not a factual, determination[,]... [a]lthough whether a particular set of acts, in their factual setting, is unfair or deceptive is a question of fact ... (quotations and citations omitted)." Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 171 (2013), quoting Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 503 (2011).

McKinnon and Olivo assert two similar theories of liability under c. 93A, related to the issue of breach of Berluti's fiduciary duties to his client. "[I]n matters of fees, attorneys are fiduciaries who owe their clients greater duties than are owed under the general law of contract" (quotations and citations omitted). Malonis v. Harrington, 442 Mass. 692, 7025 (2004). Massachusetts Rule of Professional Conduct 1.5 (a) states that an attorney "shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee or collect an unreasonable amount for expenses." Mass. R. Prof. C. Rule 1.5 (a), as amended, 480 Mass. 1315 (2018). Rule 1.5 (b) further requires an attorney to state the "basis or rate of the fee and expenses for which the client will be responsible ... in writing before or within a reasonable time after commencing the representation." Mass. R. Prof. C. Rule 1.5 (b) (1), as appearing in 463 Mass. 1302 (2012).

The jury in this case answered special questions and found no breach of contract between Berluti and McKinnon, and that no contract existed between Berluti and Olivo. Instead, the jury made a specific finding that a valid modification of the fee agreement had occurred. The judge adopted this finding in her consideration of the plaintiffs' c. 93A claim, and made further independent findings.

The judge who heard the evidence that was presented to the jury as well as additional documentary evidence offered in connection with the G. L. c. 93A claim was warranted in finding that Berluti's and McKinnon's initial fee agreement was, as the jury concluded, validly modified, and thus no breach of contract occurred. The judge was warranted in finding that Berluti made his best efforts on behalf of the plaintiffs to obtain for them the highest possible monetary award, that Berluti informed McKinnon and Olivo of all the material terms of the settlement, and that the plaintiffs agreed to the terms of the settlement. Finally, the judge was warranted in finding that in settling the matter, Berluti did not negotiate his fee out of a lump sum amount of damages that Lindenmeyr Monroe agreed to pay, but rather that the settlement that Lindenmeyr Monroe agreed to pay consisted of three elements, namely a monetary award for McKinnon, a monetary award for Olivo, and attorney's fees for Berluti. Based on these findings, the judge was correct in ruling that Berluti made a full and fair disclosure of facts material to his clients' interests, see Hendrickson v. Sears, 365 Mass. 83, 90 (1974), and did not commit an unfair or deceptive act.

Judgment affirmed.

      While Olivo was not a named party to the case, the judge found that Lindenmeyr Monroe's attorney insisted that he be included in receiving a settlement and that both Olivo and McKinnon sign confidentiality agreements to ensure that other employees of Lindenmeyr Monroe would not be incentivized to also bring similar lawsuits in the future.

      The differing amounts between McKinnon and Olivo were based on the estimated commissions Lindenmeyr Monroe had withheld from each, based on their individual sales records.


text:
    COMMONWEALTH v. Jose VARGAS.
    17-P-1116
    Appeals Court of Massachusetts.
    Entered: October 12, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Suffolk County grand jury indicted the defendant, Jose Vargas, for trafficking heroin, in violation of G. L. c. 94C, § 32E, and conspiracy to violate the Controlled Substances Act, G. L. c. 94C, § 40. The defendant filed a motion to suppress evidence (heroin and drug-related materials) seized by the Massachusetts State police pursuant to a search warrant. The defendant argued in the motion that the affidavit failed to establish a probable cause nexus between the defendant's drug-related transactions and the premises searched, a second-floor apartment at 192 Magnolia Street in the Dorchester section of Boston. The affidavit alleged that the premises were used by the defendant as a "stash house" to facilitate the drug-related transactions. A Superior Court judge allowed the motion to suppress, agreeing with the defendant that the officers' affidavit in support of the search warrant application "was not sufficient to establish that illegal narcotics or related contraband may reasonably be expected be located in the place to be searched." A single justice of the Supreme Judicial Court granted the Commonwealth's application for leave to pursue an interlocutory appeal of that ruling, and directed the appeal to this court.

On appeal, the Commonwealth contends that the motion judge erred in allowing the defendant's motion to suppress, because the affidavit submitted in support of the search warrant of the second floor of a two-unit apartment structure located at 192 Magnolia Street in Dorchester (Magnolia Street apartment), sufficiently supported the issuing judge's determination that there was probable cause connecting the defendant's described drug activity with his use of the apartment as a drug "stash house." More specifically, the Commonwealth argues that the motion judge (a) erroneously overlooked key facts in the officers' affidavit substantially supporting the inference that the defendant used the apartment to support his drug trafficking enterprise; (b) erroneously failed to evaluate the search warrant affidavit; and (c) erroneously rejected the affiant-officers' opinions which substantially supported the inference that defendant used the apartment for a "stash house" to advance drug trafficking. We agree and reverse.

Standard of review. In reviewing a determination that there was probable cause to issue a search warrant, we consider the facts contained within the "four corners of the [search warrant] affidavit" (citation omitted), Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), and the reasonable inferences to be drawn from them. See Commonwealth v. Martinez, 476 Mass. 410, 415 (2017).

Whether there was probable cause to issue the search warrant is a question of law that we review de novo, see Commonwealth v. Tapia, 463 Mass. 721, 725 (2012), in a commonsense and realistic manner. See Commonwealth v. Molina, 476 Mass. 388, 394 (2017) ; Commonwealth v. Cruz, 430 Mass. 838, 840 (2000). A reviewing court reads the warrant affidavit as a whole, without overly parsing or severing it, or subjecting it to "hypercritical analysis" (citation omitted). Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). See Commonwealth v. Anthony, 451 Mass. 59, 68 (2008) ("In dealing with probable cause ... we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act" [citation omitted] ). A court evaluates the sufficiency of a warrant application giving "considerable deference to the magistrate's determination of probable cause." Commonwealth v. Foster, 471 Mass. 236, 242 (2015) (setting forth standard of review). Commonwealth v. Kenney, 449 Mass. 840, 845 (2007) (emphasizing need for deference to trial court).

Discussion. The Commonwealth argues that the motion judge erroneously overlooked significant facts detailed in the officers' warrant affidavit establishing a probable cause "nexus" between the defendant's narcotics sales and the second-floor Magnolia Street apartment. When evaluating this "nexus" between the criminal activity and the search location, the court considers "the type of crime," in addition to the "normal inferences as to where a criminal would be likely to hide" evidence of a crime. Commonwealth v. Anthony, 451 Mass. 59, 70 (2008).

Here, we conclude that a number of facts set forth in the warrant application strongly suggested a nexus between the defendant's narcotics sales and the second-floor Magnolia Street apartment. First, the defendant previously used a "stash house" at a different location, at which officers discovered "trafficking amounts" of narcotics in addition to materials used to "cut," "package," and "distribute illegal narcotics," a fact that suggested a "pattern of conduct" for the defendant. Commonwealth v. Germain, 396 Mass. 413, 418 n.7 (1985) (indicating previous conduct relevant to probable cause).

Second, the motion judge agreed that the affidavit "provided overwhelming evidence to support a finding of probable cause" that the defendant "was engaged in the sale of heroin." The warrant affidavit described "many police observations of [the] [d]efendant at the Magnolia Street apartment" indicating that the defendant was not using the apartment for his own residential or any other discernable lawful purposes. For instance, police surveillance and records from the registry of motor vehicles (RMV) revealed that the defendant primarily resided at apartment 1050, 31 Orton Marotta Way, and that officers never saw the defendant traveling "to any location resembling a legitimate job." While the defendant visited the Magnolia Street apartment frequently, he rarely stayed there for long periods of time. Similarly, officers were not able to locate any RMV records for anyone living in the second-floor apartment, in contrast to RMV records identifying a family of residents living in the first-floor unit who were not suspected of criminal activity.

In the same vein, officers relied upon the results of their search of trash recovered from the address. One trash search yielded plastic bags with "missing corners," as well as plastic bags lined with "wet coffee grounds." Based on their training and experience in narcotics investigations, the officers concluded that those materials were used to package narcotics. That trash search did not yield any discarded resident mail addressed to 192 Magnolia Street. In contrast, another trash search did not yield any narcotic-related materials, but did yield discarded mail addressed to the first-floor residents. Based on the results of these trash searches, we conclude that although there may have been alternative sources for the drug-related materials in the trash from 192 Magnolia Street, that lack of certainty did not eliminate the officers' probable cause to believe that the drug-related materials emanated from the unknown, nonresident occupants of the second-floor apartment, rather than the known residents of first-floor apartment. See O'Day, 440 Mass. at 303 n.6 (suggesting probable cause undiminished by alternative explanations for evidence).

Additionally, during their surveillance of the Magnolia Street address, officers frequently observed the defendant behave furtively when approaching or leaving the apartment. For example, when visiting the Magnolia Street apartment, the defendant never parked on Magnolia Street, parking instead one or two blocks away despite the availability of "numerous available parking spots in the area." The affidavit describes this as a "tactic commonly used by Vargas to deter law enforcement from determining his exact location." Similarly, while the window shades in the second-floor apartment were "always drawn," officers observed a person "peeking outside" of the window before and after the defendant exited and entered.

We also agree with the Commonwealth that it was significant that the defendant's interactions with Alex Laureano, his "runner," occurred in association with the defendant's visits to the Magnolia Street apartment. The defendant "often" met with Laureano after leaving the Magnolia Street address, and on one occasion met with him directly at the Magnolia Street apartment. From the affidavit, the motion judge concluded that Laureano -- who "himself was indicted for possession with intent to distribute heroin," and "conspiracy to distribute heroin" --"often carried out heroin sales arranged by [d]efendant." The motion judge acknowledged that officer surveillance revealed that Laureano and the defendant "meet on a daily basis, typically in the morning" and that "[o]fficers have noticed a pattern" of the defendant "either going to 96 Crawford," where Laureano lives, or Laureano going to 192 Magnolia [Street] every day," leading officers to "believe that the purpose of this daily meeting is so the defendant "can replenish [Laureano's] supply of heroin for distribution and simultaneously so [the defendant] can collect proceeds from [Laureano]."

Although these details, viewed as "individual fragments," may have been seen by the motion judge as insufficient to demonstrate probable cause, when viewed "as a whole," they created a "substantial basis" to believe that evidence of criminal activity was likely to be found in the Magnolia Street apartment. Commonwealth v. Matias, 440 Mass. 787, 794 (2004) (urging consideration of evidence in entirety). O'Day, 440 Mass. at 297-298. These factors, in combination with the officer-affiants' opinions, based on their considerable training and experience, that the defendant was using this apartment to facilitate his drug trade, provided probable cause that the defendant was using the Magnolia Street apartment as a "stash house" for narcotics distribution.

Conclusion. For the reasons explained above, so much of the order on the defendant's motion to suppress as allowed the suppression of evidence related to 192 Magnolia Street is reversed. The order is otherwise affirmed.

So ordered.

Reversed in part; affirmed in part.

      The warrant was the culmination of investigations conducted by both the State police and the Boston police department. The investigations had merged by the time the search warrant was obtained and executed.

      The motion sought to suppress illegal narcotics and related items seized from three different addresses associated with the defendant. The order allowed the motion to suppress solely as to 192 Magnolia Street.

      The sixty-two page, 164 paragraph affidavit submitted in support of the warrant application was sworn to by both a State trooper and Boston police officer who participated in the year-long investigation.

      The judge noted that this evidence included "many controlled buys in which" two informants called telephone numbers associated with the defendant and arranged to purchase heroin, and some occasions where the defendant "himself completed the transaction at a location arranged by defendant and the confidential informant."

      The judge denied the defendant's motion to suppress the search of defendant's residence at Marotta Way where surveillance revealed that on three occasions, the defendant left his residence and "proceed[ed] directly to the place where he sold drugs to a confidential informant."

      The motion judge reasoned that the drug-related trash was insufficient to demonstrate probable cause because it was unclear who had placed that trash in the barrel, noting that the drug-related trash did not contain any "papers bearing [the] [d]efendant's name and address," and concluding that there was not probable cause "to believe that illegal narcotics or related items would be found at the Magnolia Street apartment." In this regard, we agree with the Commonwealth that the motion judge required an undue degree of certainty in his assessment of the affidavit. Although it is possible that the drug-related trash was left by another Magnolia Street resident, or an unknown passerby, that lack of certainty did not detract from probable cause because the trash, when viewed alongside the previously-discussed factors, created a "substantial basis" for believing that the second-floor Magnolia Street apartment would contain evidence of criminal activity. A warrant application must establish "probable cause, not certainty," Commonwealth v. Escalera, 462 Mass. 636, 646 (2012), that evidence of a crime "would be found in particular locations." Anthony, 451 Mass. at 72. Consequently, "[t]he fact that there may be other explanations for the activities observed by the police does not negate" probable cause. O'Day, 440 Mass. at 302 n.6 (stating probable cause unaffected by alternative explanations for evidence). See id. at 297-298 (holding probable cause undiminished by lack of certainty and urging analysis of affidavit in its entirety). See also Commonwealth v. Matias, 440 Mass. 787, 795 (2004) (suggesting possibility that drugs found in trash originated from "other apartments in the building" failed to negate probable cause).

      The motion judge concluded that the defendant's habit of parking blocks away from the Magnolia Street apartment "add[ed] little to the probable cause analysis."

      The motion judge denied the motion to suppress the warrant search of Laureano's apartment at 96 Crawford Street.

      Nevertheless, the motion judge discounted the importance of these meetings between the defendant and his "runner" after leaving the Magnolia Street apartment because "the affidavit did not report any observations relative to the drug trade."

      A court may not use an "experienced officer's" conclusions about the facts in an affidavit "as a talismanic formula," for probable cause "where evidence to support such a finding is otherwise lacking." Commonwealth v. DiAntonio, 8 Mass. App. Ct. 434, 440-441 (1979). The court may, however, "reasonably rely" on that officer's conclusions, based on his experience investigating a specific crime, "that evidence of that crime would be found at" a particular location. Kenney, 449 Mass. at 846. Here, both affiants detailed their extensive training and experience in carrying out narcotics investigations, and explained the basis for their opinions in a sixty-two page affidavit. Although the motion judge could not rely solely on the affiants' final conclusions, the judge should have considered the affiants' experience-based opinions when evaluating the warrant application for probable cause. See Kenney, supra at 846 (suggesting affiants' experience relevant to probable cause).


text:
    COMMONWEALTH v. Matthew DAVIS.
    16-P-436
    Appeals Court of Massachusetts.
    Entered: October 12, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Boston Municipal Court jury convicted the defendant of resisting arrest and of assault and battery on a police officer. These charges arose out of the defendant's arrest for allegedly attacking his girl friend. The defendant initially faced three additional charges for the alleged attack itself, but the Commonwealth agreed to a dismissal of those charges on the morning of trial. On appeal, the defendant claims reversible error with respect to the jury's having learned that his arrest followed a report of domestic violence. He also claims that a witness improperly commented on his prearrest silence and that the prosecutor made various errors in his closing argument. We affirm.

Background. On the evening of April 27, 2015, two Boston police officers responded to a 911 call for a domestic violence incident. When the officers arrived at the residence, they spoke to the 911 caller and were told that the other party, later identified as the defendant, was in the back bedroom. The officers tried to speak to the defendant, but he appeared to be packing up his clothing and said only "I'm leaving" or "I'm out of here."

Based on their observations, the officers determined that they were going to arrest the defendant. Officer Carlson said to the defendant, "Put your hands behind your back," and then touched his right arm in an attempt to bring it behind the defendant's back to handcuff him. At that point, the defendant swung his left hand toward Officer Carlson and hit him in the face. Officer Carlson then pushed the defendant backwards towards a wall, but the defendant tripped on a container and both men fell, crashing into the wall and through the drywall. The other officer, Officer Conway, as well as a private security officer who was monitoring that building, responded to the commotion and assisted Officer Carlson in placing the defendant in handcuffs.

Discussion. 1. Reference to "domestic violence." After the Commonwealth dismissed the charges involving the defendant's alleged attack on his girl friend, the defendant moved in limine to preclude the Commonwealth from "eliciting any information about domestic violence." Following a brief hearing, the judge orally ruled that the Commonwealth could not delve into the alleged bad acts, specifically "that [the defendant] choked [his girl friend]." At the same time, the judge ruled that the Commonwealth could elicit testimony as to the police officers' observations, to explain why they decided to place the defendant under arrest. Neither side, nor the judge, specifically addressed whether the police witnesses could refer to the nature of the 911 call to which they were responding.

On direct examination, Officer Conway testified that he responded to a "domestic violence call involving an intimate partner" on the night in question. The defendant objected to the reference to "domestic violence" and moved for the judge to grant a mistrial and to strike the statement. The judge denied a mistrial but provided a curative instruction. Specifically, the judge instructed the jury that the defendant was "charged only with the crimes before you" and that they must "[d]isregard any other alleged crimes ... by the defendant."

On appeal, the defendant argues that the judge erred in refusing to grant a mistrial. The denial of a mistrial is reviewed for abuse of discretion. Commonwealth v. Santana, 477 Mass. 610, 625 (2017). When reviewing for abuse of discretion, we consider whether the judge "made 'a clear error of judgment in weighing' the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). We give deference to the judge's determination of whether to declare a mistrial because "[a] trial judge is in the best position to determine whether a mistrial, an extreme measure available to a trial judge to address error, is necessary, or whether a less dramatic measure, such as a curative instruction, is adequate." Santana, supra at 626, quoting Commonwealth v. Amran, 471 Mass. 354, 360 (2015).

The judge did not abuse his discretion in denying a mistrial. During his consideration of the pretrial motion in limine, he appropriately expressed concern about allowing details of the alleged domestic violence incident to come in at trial. See Commonwealth v. Berry, 420 Mass. 95, 109 (1995) ("trial judges must take care to avoid exposing the jury unnecessarily to inflammatory material that might inflame the jurors' emotions and possibly deprive the defendant of an impartial jury"). However, as noted, the judge never said that police witnesses could not describe the type of call they had received or that any reference to "domestic violence" was off limits. Further, the jury already had heard testimony that the officers decided to place the defendant under arrest based on their conversations with the 911 caller.

Moreover, to the extent that it was prejudicial for the jury to hear the phrase "domestic violence," the judge immediately and forcefully gave a curative instruction. The judge did not abuse his discretion in concluding that such instructions adequately addressed any prejudice to the defendant. See Santana, 477 Mass. at 626. Finally, we note that after Officer Conway made his statement and the judge gave his curative instruction, the phrase "domestic violence" was never repeated at trial, nor was it referenced in closing arguments.

2. Prearrest silence. At trial, Officer Carlson testified that he and his partner "tried to speak to [the defendant], and he was not interested in speaking back with [them]." The officer elaborated that "[the defendant] wouldn't answer any questions that [they] had initially asked him." On cross-examination, defense counsel elicited further detail regarding the defendant's unresponsiveness to the officers' questions. In their respective closing arguments, both sides tried to make use of the lack of verbal interaction between the defendant and the police. The prosecutor argued that one of the officers "wanted to ask [the defendant] a question, get his side of the story. What did the defendant do? He didn't look him in the eye. He wouldn't answer his questions." In support of his contention that the defendant did not "lash[ ] out" at the officers, defense counsel stated that "[t]hey don't even tell you that [the defendant] said a word ... during this entire struggle, you haven't heard that [the defendant] said anything."

The defendant now argues for the first time on appeal that the references to his lack of responsiveness to the officers' inquiries constitutes improper commentary on the defendant's "prearrest silence." See Commonwealth v. Irwin, 72 Mass. App. Ct. 643, 651 (2008), quoting Commonwealth v. Conkey, 430 Mass. 139, 141 (1999) (" 'evidence of a defendant's refusal to comply with a police request' is inadmissible 'because in so refusing a defendant furnishes evidence against himself, and admission of that evidence would violate art. 12' "). Because no objection was raised at trial, we review only for whether any error caused a substantial risk of a miscarriage of justice. See Commonwealth v. Curtis, 417 Mass. 619, 623 (1994).

Here, the defendant's unresponsiveness occurred prior to the offenses for which the defendant was being tried (resisting arrest and assault and battery on a police officer). Thus, the defendant's silence could not have been taken as any evidence of consciousness of guilt for those offenses. Rather, the Commonwealth relied on the references to the defendant's responsiveness merely to set the scene regarding whether a reasonable person in the defendant's position would have understood that he was being placed under arrest. We discern no error, much less a substantial risk of a miscarriage of justice.

3. Closing argument. The defendant next asserts that the prosecutor made various improper statements in his closing argument. In his own closing, defense counsel argued that the police used excessive force and sought to call into question the reliability and credibility of the three Commonwealth eyewitnesses. He highlighted the differences between their individual accounts of what happened, even going so far as to insinuate that they had tried, but failed, to coordinate those accounts by stating that they "can't even agree on some very basic facts concerning what happened." Counsel also suggested that one of the officers was biased because he had gone on paid medical leave following the incident, and thus might have had "a stake in the outcome [of the case]" or "an investment ... in the outcome that [wasn't] immediately apparent upon first glance."

In his closing, the prosecutor methodically walked through the evidence while arguing that the Commonwealth had proved the elements of each crime beyond a reasonable doubt. Such marshalling of the evidence was proper, see Commonwealth v. Quigley, 391 Mass. 461, 464 (1984), and we discern no merit in defendant's claims that the prosecutor improperly inserted his own opinions.

Nor do we agree that the prosecutor improperly vouched for the witnesses when he characterized them as being "candid ... upfront and honest" in their testimony. See Commonwealth v. Chaleumphong, 434 Mass. 70, 78 (2001) (prosecutor did not vouch in closing argument because he "did not express his personal belief in the credibility of any witness or indicate that he had special knowledge to determine credibility"). In addition, with defense counsel having insinuated that the police witnesses were biased or worse, the prosecutor was "entitled to make a fair reply to the defendant's closing argument." Commonwealth v. Smith, 404 Mass. 1, 7 (1989). Similarly, we see no problem with the prosecutor asking the jury to consider the motivations of the police officers, and whether they would have "commit[ed] the act of perjury" after "making concessions" rather than "demoniz[ing] the defendant." While the prosecutor's asking the jury to think about "what [the officers] do" was better left unsaid (since it could be taken to suggest that the officers should be believed because they were police officers), this isolated remark could not have worked sufficient prejudice to warrant reversal.

We discern no hint of an error in the prosecutor's arguing that "in every significant way, [the eyewitnesses'] stories were consistent." The prosecutor then took this one step further, arguing that if the officers' testimony had been "too consistent," it would have been "suspicious." In other words, the prosecutor argued that the police testimony was more believable because it was inconsistent. However, as the defendant now acknowledges, the judge issued a curative instruction in response to his objection. There is no showing on the record that the defendant renewed his objection after the curative instruction was given, and, in any event, we are unpersuaded that any prejudice caused by the prosecutor's argument was not sufficiently cured by the instruction. See Commonwealth v. Amirault, 404 Mass. 221, 239-240 (1989).

Judgments affirmed.

      The dismissed charges were assault and battery on a family or household member, strangulation or suffocation, and assault and battery by means of a dangerous weapon.

      The defendant separately argues that the judge committed reversible error in not striking the evidence from the record. Putting aside that the defendant did not renew his motion to strike after the judge told the jury to "[d]isregard any other alleged crimes," the curative instruction was the functional equivalent of striking the testimony.

      The defendant's own efforts to make use of the defendant's unresponsiveness underscores the lack of any demonstrated prejudice.

      At one point, the prosecutor stated that "[i]f you believe that testimony, then ... there is no doubt that the defendant is guilty of the crimes charged." Such absolutist phrasing was better left unsaid, but read in the context of the argument as a whole, see Commonwealth v. Dixon, 425 Mass. 223, 230 (1997), we are confident that the jury understood this as the prosecutor's enthusiastic claim that he had met his burden. See Commonwealth v. Kozec, 399 Mass. 514, 517, (1987) ("A certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed"). Further, the fact that the defendant raised no objection to this phrasing is "some indication that the tone [and] manner ... of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial." Commonwealth v. Lyons, 426 Mass. 466, 471 (1998), quoting Commonwealth v. Mello, 420 Mass. 375, 380 (1995).

      Parts of the instruction were marked as indecipherable on the transcript, and -- despite the apparent best efforts of all involved -- could not be recreated. However, we do know that the judge expressly instructed the jury not to consider "any such arguments," and the defendant acknowledges that the judge's directive was a "curative instruction" prompted by his objection. We also can discern that the judge's concern had to do with the topic of "witnesses collaborat[ing] in manufacturing testimony."


text:
    Debra L. ROBBINS, individually and as trustee, & another v. Robert A. CHAMBERLAIN.
    17-P-1383
    Appeals Court of Massachusetts.
    Entered: October 12, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the Bay View Realty Nominee Trust.

      Outdoor Ventures, LLC.

   This is a property dispute in Berkley. The plaintiffs, Debra Robbins (both individually and as trustee) and Outdoor Ventures, LLC, filed a complaint in the Land Court seeking to establish that they hold an access easement on land owned by the defendant (Chamberlain). On cross motions for summary judgment, a Land Court judge ruled in Chamberlain's favor and issued a final judgment establishing that the plaintiffs held no easement over Chamberlain's land. On appeal, the plaintiffs no longer argue that they are entitled to summary judgment in their favor. Instead, they argue only that the judge improperly granted summary judgment in Chamberlain's favor by relying sua sponte on grounds that they did not have a fair opportunity to try to rebut. Because we agree, we vacate the judgment and remand for further proceedings.

Background. In or about 2009, the plaintiffs purchased eight lots on, or in the vicinity of, a peninsula known as Shove's Neck. Shove's Neck juts into the Assonet River, and it is connected to the mainland by a causeway that runs through a marsh. Some of the plaintiffs' property does not lie on Shove's Neck itself and has frontage on Bayview Avenue. There is a gravel road (existing access road) that connects Bayview Avenue to the causeway, and hence to Shove's Neck. The plaintiffs own the existing access road, and therefore they already have a means of gaining access to their lots on Shove's Neck. Nevertheless, fearing that they will not be allowed to improve the existing access road in the manner that they desire, the plaintiffs brought the current action seeking to establish that they have an alternative means of reaching the causeway from Bayview Avenue. That route runs through the farm owned by Chamberlain, specifically through the portions of the farm shown as lots 4 and 16 on the town assessors' plan.

On summary judgment, the plaintiffs took the position that they indisputably held a right of way over lots 4 and 16 "as a matter of record." They made only a limited showing to support that claim. Notably, they did not supply a comprehensive title search, nor did they delve into precisely when and how any appurtenant easements establishing such a right of way were created. Instead, the plaintiffs focused their summary judgment argument primarily on Chamberlain's assertions that any easements that may once have been created on lots 4 and 16 were later terminated (through abandonment or adverse possession).

As part of their limited showing that lots 4 and 16 were subject to appurtenant easements that benefited their land, the plaintiffs put forward two main types of evidence. The first was made up of deeds from the chain of title to lots 4 and 16, which referenced a right of way over those lots. With respect to lot 4, the deed in to Chamberlain (Chamberlain deed) stated that the parcel that includes that lot is "subject to two rights of way as set forth in" an 1863 predecessor deed from Nathan Chace to Josiah Chace (Chace deed). The Chace deed in turn states that this parcel is subject to "a right of passageway over the southerly part of said premises for the use of the owners of marsh and other lands southerly from said premises." Because the plaintiffs now own several lots that lie south of lot 4 (including marshland), they claim that such lots are among those that were intended to benefit from the right of way referenced in the Chace deed. The plaintiffs similarly pointed to language in the Chamberlain deed to support their claim that they hold a right of way across lot 16. The Chamberlain deed described lot 16 as being subject to a "right of way for the passing of several parties along the westerly side of said tract." Such language dates back at least to a 1909 deed from Gilbert M. Nichols to another of Chamberlain's predecessors in title (Nichols deed). Based on such references, the plaintiffs claim that lot 8, the lot they own lying westerly of lot 16, is benefited by an appurtenant easement allowing passageway over lot 16.

The other type of evidence that the plaintiffs put forward was a trio of plans that each depict a right of way running from Bayview Avenue southerly across lots 4 and 16, eventually joining the existing access road, and subsequently connecting to the causeway that leads to Shove's Neck peninsula. The first plan was a 1948 survey plan prepared for Gilbert S. Raposa, the second was a 1988 survey plan prepared for the Shoves Neck Realty Trust, and the third was the town assessors' "Property Map: 14." The parties agreed that the three plans show a right of way "in more or less the same location."

In opposition to the plaintiffs' motion for summary judgment, and in support of his own motion, Chamberlain principally focused on the same issues that the plaintiffs did: whether any access easements that once might have existed across lots 4 and 16 since had been lost through abandonment or adverse possession. We reserve for later discussion the extent to which Chamberlain's summary judgment materials raised other arguments as well.

In ruling that the plaintiffs were not entitled to summary judgment but Chamberlain was, the judge did not reach the question whether any access easements that may once have existed since had been lost. Instead, she focused on whether the summary judgment record demonstrated that enforceable appurtenant easements over lots 4 and 16 ever had been created for the benefit of the lots now owned by the plaintiffs. For example, the judge explained that the plaintiffs could not rely on the Chace deed as having reserved an appurtenant easement for the benefit of the plaintiffs' predecessors in title unless they could demonstrate that when Nathan Chace transferred lot 4 to Chamberlain's predecessor in title in 1863, Chace also owned the property that the plaintiffs now claim is benefited by an appurtenant easement. See Hodgkins v. Bianchini, 323 Mass. 169, 172 (1948), quoting Hazen v. Matthews, 184 Mass. 388, 393 (1903) ("An easement cannot be imposed by deed in favor of one who is a stranger to it"). Because there was no evidence appearing in the summary judgment record showing that the owner of the plaintiffs' land in 1863 was a party to the Chace deed, the judge ruled against the plaintiffs.

The judge also relied on an alternative ground. In considering whether the Chace deed effectively reserved an appurtenant easement on lot 4, the judge noted that the reference there to a right of passage included no language of inheritance. The judge reasoned that even "if Nathan Chace had owned the marsh or other lands to be benefited by the reserved right of passageway, such reserved right would not have survived his death ... because a reservation made in a deed prior to 1912 lacking words of inheritance, granted only an estate for life in the grantor." See Elwell v. Miner, 342 Mass. 450, 454 (1961) ; O'Shea v. Mark E. Kelly Co., 273 Mass. 164, 170 (1930). The judge applied similar reasoning with regard to lot 16.

Discussion. As noted, the dispute before us is a narrow one. The plaintiffs make no challenge to the judge's ruling that they failed to demonstrate an entitlement to summary judgment; they argue only that the judge improperly granted summary judgment in favor of Chamberlain.

As the judge correctly recognized, the plaintiffs would carry the burden of proving at trial that they possessed a valid easement over lots 4 and 16. However, with regard to his own motion for summary judgment, Chamberlain was the moving party and thus bore "the burden of initially showing that there is an absence of evidence to support the case of the nonmoving party shouldering the burden of proof at trial." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991). A moving party's initial "burden is not sustained by the mere filing of the summary judgment motion or by the filing of a motion together with a statement that the other party has produced no evidence that would prove a particular necessary element of [their] case." Id. Rather, "[t]he motion must be supported by one or more of the materials listed in [Mass. R. Civ. P.] 56 (c) [, as amended, 436 Mass. 1404 (2002),] and, although that supporting material need not negate, that is, disprove, an essential element of the claim of the party on whom the burden of proof at trial will rest, it must demonstrate that proof of that element at trial is unlikely to be forthcoming." Id.

In his summary judgment materials, Chamberlain asserted in passing that the plaintiffs were "unable to produce deeds or other instruments of conveyance which would supply them with the benefit of a right of way ... [and] are unable to produce other evidence [of this]." However, Chamberlain did not produce any affidavits or other supporting material purporting to show that the plaintiffs likely would be unable to prove at trial that enforceable appurtenant easements had been created. Accordingly, the plaintiffs never faced the burden of having to marshal evidence to the contrary or risk having summary judgment entered against them.

As the judge ably recognized, there are significant gaps in the factual record, such as with regard to whether Nathan Chace owned the plaintiffs' lots at the time the deed was transferred. Such gaps in the record provided a sound basis for the judge to deny the plaintiffs' motion for summary judgment, but not to allow Chamberlain's cross motion. Simply put, the plaintiffs are entitled to an opportunity to develop the factual record to try to address the issues that the judge herself raised. See Monaco v. Lombard Bros., 24 Mass. App. Ct. 941, 941-942 (1987) (reversing grant of summary judgment "on a ground not addressed by either party ... without giving the parties the opportunity to address the question"). We express no view on whether the issues on which the judge focused could be resolved on renewed motions for summary judgment or instead necessitate a trial.

We vacate the judgment and remand this case for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded.

      The original defendant was Elmer Chamberlain, who died in 2015, while this action was pending. The current defendant is Elmer's son, Robert A. Chamberlain, who was substituted in as the heir in possession. For convenience, we refer to father and son collectively as "Chamberlain."

      The existing access road runs through a marsh, and the plaintiffs' amended complaint alleges that "it may be difficult or impossible to widen [the existing access road] in order to ensure safe ingress and egress for purposes of vehicular access."

      The plaintiffs also submitted an affidavit that, inter alia, purported to express an expert opinion about the legal import of the respective deeds and plans. On Chamberlain's motion, the judge struck that portion of the affidavit that encompassed "legal conclusions as to the meaning and effect of the deeds and plans attached to [the expert's] affidavit." That ruling is not challenged on appeal.

      As the judge observed, the plaintiffs did not demonstrate that the 1948 Raposa plan or the 1988 Shoves Neck Realty Trust plan had "been prepared in connection with a survey of the Chamberlain land, and the record reveals nothing that connects those plans to any instrument of record that created the depicted rights of way for the benefit of any of Plaintiffs' land."

      Although a transcript of the hearing on the cross motions for summary judgment was not provided to us, the parties agreed at oral argument that the discussions at that hearing tracked the arguments raised by the summary judgment briefs.

      The judge recognized that the reference in the Chace deed might be read as an exception rather than a reservation, but she pointed out that the plaintiffs had included in the summary judgment record no showing that an appurtenant easement had been created prior to the Chace deed.

      Chamberlain did point out that the limited deeds from the plaintiffs' chain of title included in the record did not reference that their property would benefit from any easements. However, this was not the ground on which the judge ultimately relied and, in any event, as the judge herself noted, the absence of such references is not fatal to the plaintiffs' claims. See G. L. c. 183, § 15.

      Chamberlain accurately observes that the judge's ruling "was consistent with the assertions made in [his] argument on Motion for Summary Judgment." However, in determining what contentions fairly were placed at issue on summary judgment, mere "consistency" is not the test.

      As noted, the judge also relied on the alternative grounds that the rights of way referenced in the Chace and Nichols deeds lacked words of inheritance. To the extent that the plaintiffs are relying on these deeds to have reserved easements over lots 4 and 16, then the judge's conclusion that their claims fail as a matter of law would appear to be sound. See Elwell, 342 Mass. at 454 ; O'Shea, 273 Mass. at 170. But the plaintiffs never committed to these two deeds as the only source deeds, and the judge herself recognized the possibility that the references to a right of way in those deeds could have been read as exceptions rather than reservations, if the summary judgment record supported this construction. To the extent that the deed references did constitute exceptions, the absence of words of inheritance would appear not to be fatal. See Clafin v. Boston & Albany R.R., 157 Mass. 489, 493 (1892). We deem it imprudent to comment further on this issue without a fully developed factual record. The same goes for the plaintiffs' countervailing argument that there is a legal presumption that "[a]bsent any language to the contrary, an easement is presumed to be appurtenant to another estate, and not personal to the grantee" (quotation omitted).

      We agree with Chamberlain that the plaintiffs should have filed a motion for reconsideration pursuant to Land Court Rule 9 instead of pressing an immediate appeal. However, we see nothing in that rule or elsewhere that requires that preferable course of action as a prerequisite to filing an appeal.

      We note that the judge did not address whether Chamberlain was entitled to summary judgment based on his arguments that any easement that had once existed had been lost through abandonment or adverse possession. The parties have not briefed these issues on appeal, and we decline to reach them as a potential alternative ground for affirmance.


text:
    COMMONWEALTH v. Matthew A. SPLAINE.
    17-P-1200
    Appeals Court of Massachusetts.
    Entered: October 11, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After members of the Cambridge police department executed a search warrant at the defendant's residence, a grand jury returned indictments charging the defendant with various drug and firearm offenses. A Superior Court jury convicted the defendant of the narcotics violations (possession of heroin with the intent to distribute and a related school zone offense) and acquitted him on the remaining firearm charges. On appeal, he challenges the sufficiency of the evidence and claims that certain remarks made by the prosecutor in his closing argument were errors that created a substantial risk of a miscarriage of justice. We affirm.

1. Sufficiency of the evidence. The defendant argues that his motion for a required finding of not guilty should have been allowed because the Commonwealth's evidence was not sufficient to prove an intent to distribute. The evidence, he claims, was equally consistent with possession for personal use as with possession with the intent to distribute.

Here, the police seized .14 grams of heroin from a prescription pill bottle found in a box inside the top drawer of a dresser in the defendant's bedroom. Although the quantity of heroin is small, the Commonwealth presented sufficient evidence from which the jury could have inferred an intent to distribute. That evidence, which we view in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), established that, during two months of surveillance of the defendant's residence, the police observed vehicular and pedestrian activity indicative of a drug distribution scheme. In addition, other items commonly used to prepare and package drugs for distribution were found in the defendant's bedroom. A box of plastic sandwich bags and a pair of scissors, see Commonwealth v. Eller, 66 Mass. App. Ct. 564, 574 (2006) (evidence of intent to distribute included, among other items, box of plastic sandwich bags), a digital scale, see Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 413 (2013) (evidence of intent to distribute included, "most particularly," digital scale), and "cuff sheet" containing names of "people who owe, ... the amount of bags, [and] the amount of money," see Commonwealth v. St. George, 89 Mass. App. Ct. 764, 766, 769 (2016) (evidence of intent to distribute included a cuff sheet showing names and money owed), were among the items seized during the execution of the search warrant. The presence of a stun gun and a canister of pepper spray found close to the heroin permitted the inference that the defendant was protecting himself and his business of selling drugs. The Commonwealth's expert, Detective Robert Hall, testified that, based on the facts presented, possession of .14 grams of heroin is consistent with an intent to distribute. Lastly, although there was some evidence of the presence of straws which could be used to ingest heroin, there were no needles, spoons with residue, or other paraphernalia associated with personal use. See Commonwealth v. Gaston, 86 Mass. App. Ct. 568, 574-575 (2014). While we agree that the evidence of distribution was not overwhelming, it was sufficient to convict the defendant of possession with the intent to distribute heroin.

2. Closing argument. The defendant contends that the prosecutor misstated the evidence during his closing argument on two occasions. The defendant did not object and therefore we review any error for a substantial risk of miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). First, the defendant challenges the basis for the statement, "[W]hen you see scales that are being used for drug dealing, you're not going to see residue on the scale itself." Second, the defendant claims that the prosecutor's remark referring to the box of plastic sandwich bags as a "damning" piece of evidence and his suggestion to the jury that there is no "reasonable explanation" for the presence of the plastic sandwich bags, the scissors, and the scale in the same bedroom where the heroin was found exceeded the bounds of proper argument.

The comments were not improper. To the contrary, they were grounded in the evidence, and even if the prosecutor did engage in some hyperbole, there was no error that would have created a substantial risk of a miscarriage of justice. See Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 233 (2016). The judge twice instructed the jury that closing arguments are not evidence, and we presume that the jury followed those instructions. See Commonwealth v. Gonzalez, 465 Mass. 672, 681 (2013).

Judgments affirmed.

      Although we conclude that the comments challenged on appeal were proper, we note that the prosecutor's statement that there was no explanation for the presence of the box of plastic sandwich bags, the scissors, and the scale sailed close to the boundary of improper argument by suggesting, albeit vaguely, that the defendant had the burden of providing an explanation for the presence of these items. The better course would have been to focus on the use of these items in a drug distribution scheme.