text:
    Marques HOLMES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-1137
    Court of Appeals of Indiana.
    FILED November 15, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   CRONE, J.

Affirmed.

NAJAM, J., Concurs.

PYLE, J., Concurs.


source: Caselaw Access Project

author: TAVITAS, J.

license: Public Domain

text:
    Aaron E. KEATON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1256
    Court of Appeals of Indiana.
    FILED November 15, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   TAVITAS, J.

Affirmed.

BROWN, J., Concurs.

ALTICE, J., Concurs.


author: ALTICE, J.

text:
    Daniel A. GREER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-625
    Court of Appeals of Indiana.
    Filed November 15, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ALTICE, J.

Affirmed.

BROWN, J., Concurs.

TAVITAS, J., Concurs.


author: BROWN, J.

text:
    Jarron FIFER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1247
    Court of Appeals of Indiana.
    FILED November 15, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Affirmed.

ALTICE, J., Concurs.

TAVITAS, J., Concurs.


text:
    Harry C. CUSTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-1539
    Court of Appeals of Indiana.
    Filed November 15, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ALTICE, J.

Reversed and remanded with instructions.

BROWN, J., Concurs.

TAVITAS, J., Concurs.


author: BRADFORD, J.

text:
    Demond R. MOORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1326
    Court of Appeals of Indiana.
    Filed November 16, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BRADFORD, J.

Affirmed.

BAILEY, J., Concurs.

BROWN, J., Concurs.


author: MAY, J.

text:
    Carl T. WINKLEY, Appellant-Petitioner, v. Patricia Z. WINKLEY, Appellee-Respondent
    Court of Appeals Case No. 82A04-1711-DR-2786
    Court of Appeals of Indiana.
    FILED November 16, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   MAY, J.

Reversed in part, affirmed in part, and remanded.

RILEY, J., Concurs.

MATHIAS, J., Concurs.


author: ROBB, J.

text:
    A.C., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JV-738
    Court of Appeals of Indiana.
    Filed November 16, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ROBB, J.

Affirmed.

BAKER, J., Concurs.

MAY, J., Concurs.


text:
    Rickie Bill GILLIAM, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    Court of Appeals Case No. 79A02-1706-PC-1390
    Court of Appeals of Indiana.
    FILED November 16, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ROBB, J.

Affirmed.

BAKER, J., Concurs.

MAY, J., Concurs.


text:
    Mickell BIGGS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-198
    Court of Appeals of Indiana.
    Filed November 16, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ROBB, J.

Affirmed.

BAKER, J., Concurs.

MAY, J., Concurs.


text:
    Willie C. NAPIER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-591
    Court of Appeals of Indiana.
    FILED November 16, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ROBB, J.

Affirmed.

BAKER, J., Concurs.

MAY, J., Concurs.


text:
    In re the MATTER OF K.J. and J.J., Minor Children, and J.J., Mother, Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JC-699
    Court of Appeals of Indiana.
    FILED November 15, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Affirmed.

ALTICE, J., Concurs.

TAVITAS, J., Concurs.


text:
    Dennis R. MERRITT, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 22A04-1712-CR-2936
    Court of Appeals of Indiana.
    FILED November 15, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   TAVITAS, J.

Affirmed.

BROWN, J., Concurs.

ALTICE, J., Concurs.


author: VAIDIK, C.J.

text:
    Helen L. POYNTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-1463
    Court of Appeals of Indiana.
    FILED November 15, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   VAIDIK, C.J.

Affirmed.

RILEY, J., Concurs.

KIRSCH, J., Concurs.


text:
    Mary N. POOLE, Appellant-Plaintiff, v. ANONYMOUS D.P.M., Anonymous Medical Group, Anonymous M.D., Anonymous Network, and Anonymous Hospital, Appellees-Defendants.
    Court of Appeals Case No. 48A02-1706-CT-1376
    Court of Appeals of Indiana.
    November 19, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Affirmed.

BAILEY, J., Concurs.

CRONE, J., Concurs.


text:
    In the MATTER OF the Termination of the Parent-Child Relationship of RA.W. & R.S. (Children) and Ro.W. (Father);
    Ro.W. (Father), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner
    Court of Appeals Case No. 18A-JT-992
    Court of Appeals of Indiana.
    FILED November 19, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   MAY, J.

Affirmed.

BAKER, J., Concurs.

ROBB, J., Concurs.


author: RILEY, J.

text:
    Donna G. DOWELL, Appellant-Defendant, v. U.S. BANK, NATIONAL ASSOCIATION, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-MF-832
    Court of Appeals of Indiana.
    FILED November 19, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   RILEY, J.

Affirmed.

VAIDIK, C.J., Concurs.

KIRSCH, J., Concurs.


text:
    Stacy Yuron HART, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1092
    Court of Appeals of Indiana.
    FILED November 19, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   RILEY, J.

Affirmed.

VAIDIK, C.J., Concurs.

KIRSCH, J., Concurs.


text:
    In the MATTER OF the Termination of the Parent-Child Relationship of W.B. (Child) and A.B. (Father);
    A.B. (Father), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner
    Court of Appeals Case No. 18A-JT-1512
    Court of Appeals of Indiana.
    FILED November 19, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   MAY, J.

Affirmed.

BAKER, J., Concurs.

ROBB, J., Concurs.


text:
    Michael S. ROBINSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1013
    Court of Appeals of Indiana.
    Filed November 20, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Affirmed.

ALTICE, J., Concurs.

TAVITAS, J., Concurs.


author: KIRSCH, J.

text:
    Charles Michael FOX, Appellant-Plaintiff, v. Thomas Wilmer FOX, Appellee-Defendant.
    Court of Appeals Case No. 18A-SC-1055
    Court of Appeals of Indiana.
    FILED November 20, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   KIRSCH, J.

Affirmed.

VAIDIK, C.J., Concurs.

RILEY, J., Concurs.


text:
    Antwoin RICHMOND, Appellant-Plaintiff, v. Drew ADAMS, Melissa Pine, and John Doe # 1, Appellees-Defendants
    Court of Appeals Case No. 18A-CT-833
    Court of Appeals of Indiana.
    November 20, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ALTICE, J.

We reverse the dismissal and direct the trial court on remand to proceed under the amended complaint.

BROWN, J., Concurs.

TAVITAS, J., Concurs.


text:
    Joshua BERGEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-522
    Court of Appeals of Indiana.
    Filed November 20, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Affirmed.

ALTICE, J., Concurs.

TAVITAS, J., Concurs.


text:
    Kip SEIDENSTUCKER, Appellant-Plaintiff, v. Linda FERGUSON, Appellee-Defendant.
    Court of Appeals Case No. 18A-CT-962
    Court of Appeals of Indiana.
    FILED November 20, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   KIRSCH, J.

Affirmed.

VAIDIK, C.J., Concurs.

RILEY, J., Concurs.


author: CRONE, J.

text:
    J.B., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner
    Court of Appeals Case No. 18A-JV-1118
    Court of Appeals of Indiana.
    Filed November 20, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   CRONE, J.

Affirmed and remanded.

NAJAM, J., Concurs.

PYLE, J., Concurs.


text:
    In the MATTER OF the Termination of the Parent-Child Relationship of Z.S., Minor Child, and F.S., Mother, Appellant-Respondent, v. INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner and Child Advocates, Inc., Co-Appellee.
    Court of Appeals Case No. 18A-JT-1203
    Court of Appeals of Indiana.
    Filed November 20, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Affirmed.

ALTICE, J., Concurs.

TAVITAS, J., Concurs.


text:
    Andrew D. JACKSON, Pro Se and as Relator for the State of Indiana, Appellant-Plaintiff, v. Florence KOBLI; Michael Hrinyo (Personally and Not as Whiting Building Commissioner); City of Whiting, Indiana ; Whiting City Court ; and The Honorable Ann P. Likens (Personally and as Whiting City Court Judge), Appellees-Defendants
    Court of Appeals Case No. 18A-CT-750
    Court of Appeals of Indiana.
    FILED November 20, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   CRONE, J.

Affirmed.

NAJAM, J., Concurs.

PYLE, J., Concurs.


text:
    Tyreoun D. GUY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-1338
    Court of Appeals of Indiana.
    FILED November 20, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   CRONE, J.

Affirmed.

NAJAM, J., Concurs.

PYLE, J., Concurs.


author: PYLE, J.

text:
    Antone ATKINS, Appellant-Defendant, v. Leroy GUTHRIE, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-SC-126
    Court of Appeals of Indiana.
    FILED November 21, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   PYLE, J.

Affirmed.

NAJAM, J., Concurs.

CRONE, J., Concurs.


text:
    Stephen R. SINES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-958
    Court of Appeals of Indiana.
    FILED November 21, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ROBB, J.

Affirmed.

BAKER, J., Concurs.

MAY, J., Concurs.


author: BAKER, J.

text:
    Diane PROCTER-FLEECE, Appellant-Plaintiff, and Sentry Insurance, Intervenor Plaintiff, v. Zachary Personett, West Central Indiana Plumbing d/b/a Justin Dorsey Plumbing, Defendants, and SENTRY INSURANCE a Mutual Company, Appellee-Defendant
    Court of Appeals Case No. 18A-PL-1000
    Court of Appeals of Indiana.
    November 20, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAKER, J.

Affirmed.

MAY, J., Concurs.

ROBB, J., Concurs.


text:
    Kevin Jay WATKINS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-1153
    Court of Appeals of Indiana.
    Filed November 20, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAKER, J.

Affirmed.

MAY, J., Concurs.

ROBB, J., Concurs.


text:
    William E. MORRISON and Sonya Morrison, Appellants-Respondents, v. PUTNAM COUNTY COMMISSIONERS, Appellees-Petitioners, and Donald Richards, Appellee-Intervenor
    Court of Appeals Case No. 18A-PL-462
    Court of Appeals of Indiana.
    Filed November 20, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAKER, J.

Grant with opinion.

MAY, J., Concurs.

ROBB, J., Concurs.


text:
    Edward C. SIZEMORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-1707
    Court of Appeals of Indiana.
    FILED November 20, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAKER, J.

Affirmed.

MAY, J., Concurs.

ROBB, J., Concurs.


text:
    Ruth GAMMONS, Appellant-Defendant, v. John Caleb MARLING and Alyssa Marling, Appellees-Plaintiffs
    Court of Appeals Case No. 18A-PL-145
    Court of Appeals of Indiana.
    Filed November 20, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   CRONE, J.

Affirmed.

NAJAM, J., Concurs.

PYLE, J., Concurs.


text:
    Gary GLAZE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-1100
    Court of Appeals of Indiana.
    FILED November 20, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAKER, J.

Affirmed.

MAY, J., Concurs.

ROBB, J., Concurs.


text:
    Victoria Marie TIDWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1185
    Court of Appeals of Indiana.
    FILED November 26, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Remanded.

ALTICE, J., Concurs.

TAVITAS, J., Concurs.


author: MATHIAS, J.

text:
    Michael FRANCIS and Carmen Francis, Appellants-Plaintiffs, v. FANNIE MAE, Fannie Mae as Trustee for Securitized Trust Fannie Mae Guaranteed Remic Pass-Through Certifications 1995-16 Trust, JPMorgan Chase Bank, N.A., EMC Mortgage, LLC f/k/a EMC Mortgage Corporation, EMC Mortgage Corporation, Homesales, LLC, et. al., Appellees-Defendants.
    Court of Appeals Case No. 18A-CT-8
    Court of Appeals of Indiana.
    Filed November 26, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   MATHIAS, J.

Affirmed.

BAILEY, J., Concurs.

BRADFORD, J., Concurs.


text:
    In the MATTER OF the Termination of the Parent-Child Relationship of: S.K., Minor Child,
    D.K., Father, Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JT-1508
    Court of Appeals of Indiana.
    FILED November 26, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Affirmed.

ALTICE, J., Concurs.

TAVITAS, J., Concurs.


text:
    Dino Orville FRENCH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-766
    Court of Appeals of Indiana.
    Filed November 26, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   MATHIAS, J.

Affirmed.

BAILEY, J., Concurs.

BRADFORD, J., Concurs.


text:
    Leslie J. VICKERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-932
    Court of Appeals of Indiana.
    Filed November 26, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   MATHIAS, J.

Affirmed.

BAILEY, J., Concurs.

BRADFORD, J., Concurs.


text:
    Marteze Armondo BUTLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1399
    Court of Appeals of Indiana.
    FILED November 21, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   PYLE, J.

Affirmed.

NAJAM, J., Concurs.

CRONE, J., Concurs.


text:
    Troy Eugene HOWARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-933
    Court of Appeals of Indiana.
    Filed November 21, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ALTICE, J.

Affirmed.

BROWN, J., Concurs.

TAVITAS, J., Concurs.


text:
    Glendon B. STURGILL, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-602
    Court of Appeals of Indiana.
    FILED November 21, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ROBB, J.

Affirmed.

BAKER, J., Concurs.

MAY, J., Concurs.


text:
    Christopher HOVIS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    Court of Appeals Case No. 18A-PC-718
    Court of Appeals of Indiana.
    Filed November 21, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BRADFORD, J.

Affirmed.

BAILEY, J., Concurs.

MATHIAS, J., Concurs.


text:
    Roberto BERNAL-ANDRACA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-1288
    Court of Appeals of Indiana.
    Filed November 28, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ALTICE, J.

Affirmed.

BROWN, J., Concurs.

TAVITAS, J., Concurs.


text:
    A.H., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 70A01-1712-JV-2942
    Court of Appeals of Indiana.
    FILED November 28, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   PYLE, J.

Affirmed.

VAIDIK, C.J., Concurs.

BARNES, Sr.J., Concurs.


author: NAJAM, J.

text:
    Joseph L. HORTON, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1453
    Court of Appeals of Indiana.
    FILED November 28, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   NAJAM, J.

Affirmed.

CRONE, J., Concurs.

PYLE, J., Concurs.


text:
    Thomas A. WALLACE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-359
    Court of Appeals of Indiana.
    FILED November 28, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   NAJAM, J.

Affirmed.

PYLE, J., Concurs.

ALTICE, J., Concurs.


text:
    Ronald M. MARSHALL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-843
    Court of Appeals of Indiana.
    FILED November 26, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   NAJAM, J.

Affirmed.

CRONE, J., Concurs.

PYLE, J., Concurs.


text:
    James W. ADAMS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1228
    Court of Appeals of Indiana.
    Filed November 26, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Affirmed.

ALTICE, J., Concurs.

TAVITAS, J., Concurs.


author: VAIDIK, C.J., Concurs.

text:
    William Levi ABEL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-857
    Court of Appeals of Indiana.
    Filed November 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
    DARDEN, Sr.J.
    Affirmed.
   VAIDIK, C.J., Concurs.

KIRSCH, J., Concurs.


text:
    Akeem D. BODDIE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1038
    Court of Appeals of Indiana.
    Filed November 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ROBB, J.

Affirmed.

BAKER, J., Concurs.

MAY, J., Concurs.


author: MAY, J., Concurs.

text:
    C.B., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JV-1469
    Court of Appeals of Indiana.
    FILED November 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
    SHEPARD, Sr.J.
    Affirmed.
   MAY, J., Concurs.

BROWN, J., Concurs.


text:
    Carlos HERNANDEZ-CABRERA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1302
    Court of Appeals of Indiana.
    FILED November 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   TAVITAS, J.

Affirmed in part, reversed in part.

BROWN, J., Concurs.

ALTICE, J., Concurs.


author: BAILEY, J.

text:
    Sean Patrick ROBERTS, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1441
    Court of Appeals of Indiana.
    FILED November 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAILEY, J.

Affirmed.

MATHIAS, J., Concurs.

BRADFORD, J., Concurs.


text:
    Toby D. JOHNSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    Court of Appeals Case No. 18A-CR-1177
    Court of Appeals of Indiana.
    FILED November 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ROBB, J.

Affirmed.

BAKER, J., Concurs.

MAY, J., Concurs.


text:
    John Fitzgerald JOHNSON, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1682
    Court of Appeals of Indiana.
    FILED November 28, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BRADFORD, J.

Affirmed.

BAILEY, J., Concurs.

MATHIAS, J., Concurs.


text:
    Charles GAMBLE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    Court of Appeals Case No. 49A02-1707-PC-1811
    Court of Appeals of Indiana.
    FILED November 28, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   NAJAM, J.

Affirmed.

CRONE, J., Concurs.

PYLE, J., Concurs.


text:
    Jorge ARREDONDO, Appellant-Respondent, v. Holly ARREDONDO, Appellee-Petitioner.
    Court of Appeals Case No. 18A-DR-1239
    Court of Appeals of Indiana.
    FILED November 28, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   RILEY, J.

Affirmed.

VAIDIK, C.J., Concurs.

KIRSCH, J., Concurs.


text:
    Allenn PETERSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 33A01-1708-MI-1773
    Court of Appeals of Indiana.
    Filed November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   PYLE, J.

Affirmed.

VAIDIK, C.J., Concurs.

BARNES, Sr.J., Concurs.


text:
    Matthew R. POTTER, Appellant-Respondent, v. Kara A. POTTER, Appellee-Petitioner.
    Court of Appeals Case No. 18A-DC-1541
    Court of Appeals of Indiana.
    FILED November 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   NAJAM, J.

Affirmed.

PYLE, J., Concurs.

ALTICE, J., Concurs.


text:
    In the MATTER OF R.F. (a Child in Need of Services)
    Z.F. (Father), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JC-1394
    Court of Appeals of Indiana.
    FILED November 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAILEY, J.

Affirmed.

MATHIAS, J., Concurs.

BRADFORD, J., Concurs.


text:
    David Allen TURNER, Appellant-Respondent, v. Darla Jo TURNER, Appellee-Petitioner.
    Court of Appeals Case No. 18A-DR-796
    Court of Appeals of Indiana.
    Filed November 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAILEY, J.

Affirmed.

MATHIAS, J., Concurs.

BRADFORD, J., Concurs.


text:
    Javier GARCIA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1286
    Court of Appeals of Indiana.
    FILED November 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ROBB, J.

Affirmed.

BAKER, J., Concurs.

MAY, J., Concurs.


text:
    R.T., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JV-1082
    Court of Appeals of Indiana.
    FILED November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   KIRSCH, J.

Affirmed.

VAIDIK, C.J., Concurs.

RILEY, J., Concurs.


text:
    IN RE: the Termination of the Parent-Child Relationship of V.G. and C.G. (Minor Children) and M.G. (Mother) and E.G. (Father)
    M.G. (Mother) and E.G. (Father), Appellants-Respondents, v. The Indiana Department of Child Services, Appellee-Petitioner
    Court of Appeals Case No. 18A-JT-1170
    Court of Appeals of Indiana.
    November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   VAIDIK, C.J.

Affirmed.

RILEY, J., Concurs.

KIRSCH, J., Concurs.


text:
    CITY OF LAWRENCE, Appellant-Defendant, v. Jeff DULLAGHAN, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-PL-824
    Court of Appeals of Indiana.
    November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   MATHIAS, J.

Reversed and remanded.

BAILEY, J., Concurs.

BRADFORD, J., Concurs.


text:
    Willie Erving TAYLOR, Jr., Appellant-Plaintiff, v. CITY OF HAMMOND, INDIANA ; Mayor Thomas McDermott, Jr.; City of Hammond Law Department Corporation Counsel, William J. O'Connor ; Kristina C. Kantar, City Attorney; Detective Mark Detterline; Detective Wendy Jo Gardner; Reporting Officer Paul Lynn; Detective Dancer; Officer M. Schmidt; Officer Dulmovich; Detective Suarez; and Former Chief of Police, Brian Miller, Appellees-Defendants
    Court of Appeals Case No. 18A-CB-1367
    Court of Appeals of Indiana.
    November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   VAIDIK, C.J.

Affirmed.

RILEY, J., Concurs.

KIRSCH, J., Concurs.


text:
    IN RE the Termination of the Parent-Child Relationship of R.J. (Minor Child) and J.J. (Mother), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JT-1412
    Court of Appeals of Indiana.
    November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   MATHIAS, J.

Affirmed.

BAILEY, J., Concurs.

BRADFORD, J., Concurs.


text:
    Ann-Marie COFFIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-703
    Court of Appeals of Indiana.
    Filed November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   PYLE, J.

Affirmed.

NAJAM, J., Concurs.

CRONE, J., Concurs.


text:
    IN RE the Termination of the Parent-Child Relationship of: M.R. (Minor Child) and S.H. (Mother) and R.R. (Father), Appellants-Respondents, v. The Indiana Department of Child Services, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JT-1437
    Court of Appeals of Indiana.
    Filed November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ROBB, J.

Affirmed.

BAKER, J., Concurs.

MAY, J., Concurs.


text:
    Jeffrey HUNTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-1267
    Court of Appeals of Indiana.
    FILED November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   KIRSCH, J.

Affirmed.

VAIDIK, C.J., Concurs.

RILEY, J., Concurs.


text:
    Willie DUNCAN and Zeola Duncan, Appellants, v. U.S. ROF III LEGAL TITLE TRUST 2015-1, BY U.S. BANK NATIONAL ASSOCIATION, as Legal Title Trustee, Appellee.
    Court of Appeals Case No. 18A-MF-1254
    Court of Appeals of Indiana.
    FILED November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Affirmed.

ALTICE, J., Concurs.

TAVITAS, J., Concurs.


text:
    Richard W. SHELTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1075
    Court of Appeals of Indiana.
    November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   NAJAM, J.

Affirmed.

PYLE, J., Concurs.

ALTICE, J., Concurs.


text:
    James HOLDER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-863
    Court of Appeals of Indiana.
    FILED November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAKER, J.

Affirmed in part and remanded in part.

MAY, J., Concurs.

ROBB, J., Concurs.


text:
    Kevin Alexander CAMPBELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1122
    Court of Appeals of Indiana.
    FILED November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Affirmed.

BAILEY, J., Concurs.

BRADFORD, J., Concurs.


text:
    Joseph Evan AVART, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 41A04-1712-CR-2968
    Court of Appeals of Indiana.
    FILED November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAKER, J.

Affirmed.

MAY, J., Concurs.

TAVITAS, J., Concurs.


text:
    Teresa D. BAKER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-1025
    Court of Appeals of Indiana.
    November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAKER, J.

Affirmed.

MAY, J., Concurs.

ROBB, J., Concurs.


text:
    Wendell MANUEL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1425
    Court of Appeals of Indiana.
    FILED November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   KIRSCH, J.

Affirmed.

VAIDIK, C.J., Concurs.

RILEY, J., Concurs.


text:
    Joshua S. JESSUP, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1343
    Court of Appeals of Indiana.
    FILED November 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   KIRSCH, J.

Affirmed.

VAIDIK, C.J., Concurs.

RILEY, J., Concurs.


author: LOWY, J.

text:
    Caroline ROCH v. David J. MOLLICA & Another.
    SJC-12517
    Supreme Judicial Court of Massachusetts, Worcester..
    Argued October 2, 2018 Decided January 4, 2019
    Traver Clinton Smith, Jr., Boston, for the plaintiff.
    Paul E. Mitchell, Boston, for the defendants.
    Jennifer A. Creedon & Meghan L. Morgan, for Massachusetts Defense Lawyers Association, amicus curiae, submitted a brief.
    Present (Sitting at Worcester): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

      Donna Z. Mollica.

   LOWY, J.

The plaintiff, Caroline Roch, a New Jersey resident, sued defendants David and Donna Mollica, New Hampshire residents, in Superior Court for negligence. The claim arose out of an incident in Florida. A deputy sheriff served both defendants with in-hand process in Worcester. The defendants moved to dismiss for lack of personal jurisdiction pursuant to Mass. R. Civ. P. 12 (b) (2), 365 Mass. 754 (1974). A Superior Court judge allowed the motion to dismiss; the plaintiff appealed. The judge also denied the plaintiff's motion for reconsideration. We transferred the appeal from the Appeals Court on our own motion. We conclude that, as a matter of both State common law and due process, Massachusetts courts have personal jurisdiction over nonresident individuals who are served with process while intentionally, knowingly, and voluntarily in Massachusetts. Because the defendants here were served under these circumstances, we reverse the judge's order allowing the defendants' motion to dismiss and remand to the Superior Court for proceedings consistent with this opinion.

Background. "When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of adducing facts on which jurisdiction may be found.... In considering a motion to dismiss for lack of personal jurisdiction, we accept as true the essential uncontroverted facts that were before the judge" (citation, alteration, and quotations omitted). SCVNGR, Inc. v. Punchh, Inc., 478 Mass. 324, 325 n.3, 85 N.E.3d 50 (2017), quoting Miller v. Miller, 448 Mass. 320, 321, 861 N.E.2d 393 (2007).

The uncontested facts are as follows. The plaintiff was a freshman member of the Worcester Polytechnic Institute softball team. The defendants are the parents of the team's head coach. During a spring training trip to Florida, the team and coaches visited with the defendants at a house the defendants had rented. The house had a swimming pool. As part of an initiation ritual, without warning, upperclassmen members of the team pushed the freshman members into the pool. The plaintiff hit and injured her shoulder on the edge of the pool. According to the complaint, the defendants "negligently allowed a dangerous act of initiation or hazing to be imposed upon" the plaintiff and "negligently failed to obtain or seek immediate medical attention and/or medical advice for" her. The defendants were served with process while attending a softball game at Worcester State College in Worcester.

The judge held a nonevidentiary hearing on the defendants' motion to dismiss. At the hearing, plaintiff's counsel contended that the Superior Court had personal jurisdiction over the defendants because the defendants were served in Massachusetts. The judge responded that service of process is conceptually distinct from personal jurisdiction, and suggested that personal jurisdiction was improper here because the plaintiff's case had no connection to Massachusetts. The judge allowed the defendants' motion to dismiss in a summary order, reasoning, "Personal service on the Defendants does not confer jurisdiction on the court."

Discussion. Massachusetts courts have personal jurisdiction over any person "domiciled in" the Commonwealth, G. L. c. 223A, § 2, and, in certain circumstances, over nonresidents. The plaintiff argues that under the common-law rule of transient jurisdiction, a nonresident defendant's mere presence in the forum State when served with process confers personal jurisdiction over the defendant. See Burnham v. Superior Court of Cal., 495 U.S. 604, 629 n.1, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990) (Brennan, J., concurring) (defining "transient jurisdiction" as "jurisdiction premised solely on the fact that a person is served with process while physically present in the forum State"). We recognized common-law transient jurisdiction as early as the Nineteenth Century. In Peabody v. Hamilton, 106 Mass. 217, 220 (1870), we observed, "When the party is in the state, however transiently, and the summons is actually served upon him there, the jurisdiction of the court is complete, as to the person of the defendant." This was identified as "the general rule of the common law." Id. See Ehrenzweig, The Transient Power of Personal Jurisdiction: The "Power" Myth and Forum Conveniens, 65 Yale L.J. 289, 293-294 (1956) (contesting transient jurisdiction's historical origins but conceding that "there was true transient jurisdiction" in Peabody v. Hamilton ). See also Wright v. Oakley, 5 Met. 400, 402, 46 Mass. 400 (1843) (defendant "personally within [the State's] jurisdiction" is "liable to the jurisdiction of a court of the State").

However, we also have stated that, "[f]or a nonresident to be subject to personal jurisdiction in Massachusetts, there must be a statute authorizing jurisdiction and the exercise of jurisdiction must be 'consistent with basic due process requirements mandated by the United States Constitution.' " Bulldog Investors Gen. Partnership v. Secretary of the Commonwealth, 457 Mass. 210, 215, 929 N.E.2d 293 (2010), quoting Intech, Inc. v. Triple "C" Marine Salvage, Inc., 444 Mass. 122, 125, 826 N.E.2d 194 (2005).

Caplan v. Donovan, 450 Mass. 463, 465, 879 N.E.2d 117, cert. denied, 553 U.S. 1018, 128 S.Ct. 2088, 170 L.Ed.2d 817 (2008), quoting Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6, 389 N.E.2d 76 (1979) ("[j]urisdiction is permissible only" if both "authorized by statute" and "consistent with basic due process requirements"). The only personal jurisdiction statute that could possibly apply here is the long-arm statute, G. L. c. 223A, § 3, which requires that the "cause of action ... aris[e] from" at least one of a list of acts or omissions related to Massachusetts. But, as the plaintiff in essence conceded in oral argument, the long-arm statute does not confer personal jurisdiction here. Instead, the plaintiff contends that the long-arm statute need not be satisfied because the defendants were served with process in Massachusetts.

The Appeals Court has implicitly addressed the tension between common-law transient jurisdiction, on the one hand, and the requirement that personal jurisdiction be conferred by statute, on the other, by stating that the long-arm statute does not apply when there is in-State service of process. See Schinkel v. Maxi-Holding, Inc., 30 Mass. App. Ct. 41, 45, 565 N.E.2d 1219 (1991) ("There is no need to predicate jurisdiction over [defendant] on the long-arm statute. Jurisdiction over his person was conferred by service of process in Boston"). Because we have not yet addressed this tension ourselves, we take the opportunity to clarify that, as a matter of both State common law and due process, Massachusetts courts have personal jurisdiction over nonresident individuals who are served with process while intentionally, knowingly, and voluntarily in Massachusetts.

1. Legislative intent. We first consider whether the numerous statutes that address personal jurisdiction have supplanted the common-law rule of transient jurisdiction and conclude that they have not. "[W]e should not interpret a statute 'as effecting a material change in or a repeal of the common law unless the intent to do so is clearly expressed.' " Brear v. Fagan, 447 Mass. 68, 72, 849 N.E.2d 211 (2006), quoting Pineo v. White, 320 Mass. 487, 491, 70 N.E.2d 294 (1946), superseded on other grounds by G. L. c. 209, § 1. We are not aware of a statute that expressly repeals common-law transient jurisdiction, and "[w]e decline to interject such an intent into the plain language of" the jurisdictional statutes. Page v. Commissioner of Revenue, 389 Mass. 388, 392, 450 N.E.2d 590 (1983) (discussing Uniform Commercial Code). We acknowledge that an intent to repeal the common law "need not be explicitly stated in the statute." Reading Co-Op. Bank v. Suffolk Constr. Co., 464 Mass. 543, 549, 984 N.E.2d 776 (2013). However, we have not found any authority implicitly repealing transient jurisdiction.

2. The common-law rule. We also decline to repeal our common-law rule as it applies to defendants who are intentionally, knowingly, and voluntarily in the Commonwealth. See Burnham, 495 U.S. at 627-628, 110 S.Ct. 2105 (opinion of Scalia, J.) (affirming lower court's exercise of transient jurisdiction as matter of due process but observing that "[n]othing we say today prevents individual States from limiting or entirely abandoning the in-state-service basis of jurisdiction").

"[T]he mere longevity of the rule does not by itself provide cause for us to stay our hand if to perpetuate the rule would be to perpetuate inequity. When the rationales which gave meaning and coherence to a judicially created rule are no longer vital, and the rule itself is not consonant with the needs of contemporary society, a court not only has the authority but also the duty to reexamine its precedents rather than to apply by rote an antiquated formula." Lewis v. Lewis, 370 Mass. 619, 628, 351 N.E.2d 526 (1976). Nevertheless, "adhering to precedent is our preferred course" (quotation omitted). Shiel v. Rowell, 480 Mass. 106, 108, 101 N.E.3d 290 (2018), quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). A consistent common law creates predictability, Shiel, supra, and predictability is especially important in areas, such as personal jurisdiction, "in which reliance upon existing judicial precedent often influences individual action" (citation omitted). Id. at 109, 101 N.E.3d 290. According to the United States Supreme Court, the rule of transient jurisdiction is well established across the country. In Burnham, 495 U.S. at 628, 110 S.Ct. 2105, the Supreme Court upheld as constitutional the exercise of personal jurisdiction over a nonresident defendant who was served with process while visiting the forum State. Although the Supreme Court issued multiple opinions in the Burnham case, none of which garnered a majority or a plurality of votes, all nine Justices agreed that transient jurisdiction is widely accepted among the States. See id. at 610, 110 S.Ct. 2105 (opinion of Scalia, J.) ("Among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State"); id. at 635-636, 110 S.Ct. 2105 (Brennan, J., concurring) ("however murky the jurisprudential origins of transient jurisdiction, ... American courts have announced the rule for perhaps a century"); id. at 640, 110 S.Ct. 2105 (Stevens, J., concurring) (basing opinion in part on "the historical evidence and consensus identified by Justice Scalia").

In addition, we are unwilling to repeal the common-law rule because, where personal jurisdiction is based solely on a defendant having been served with process while intentionally, knowingly, and voluntarily in the Commonwealth, a judge still has discretion to protect a defendant by dismissing the case under the doctrine of forum non conveniens, thereby allowing a case to be tried elsewhere. See Oxford Global Resources, LLC v. Hernandez, 480 Mass. 462, 472-473, 106 N.E.3d 556 (2018) (describing forum non conveniens);

Pulte Computer Corp. vs. Debus, Boston Mun. Ct., App. Div. No. 132666 (Dec. 14, 1990) (considering forum non conveniens after finding personal jurisdiction based on defendant's presence in Massachusetts when served with process). See also Burnham, 495 U.S. at 639, 110 S.Ct. 2105 (Brennan, J., concurring) ("any burdens that do arise [from transient jurisdiction] can be ameliorated by a variety of procedural devices").

Furthermore, we are not persuaded by the argument that transient jurisdiction is an outdated vestige of the era in which personal jurisdiction was based solely on State control over people and property within its territory. Under this view, personal jurisdiction is now based on fairness, and transient jurisdiction is not "fair." Here, the defendants argue that "the plaintiff urges the Court to turn back the clock ... and bow to tradition, disregarding contemporary notions of due process requiring that litigation in the forum be foreseeable by the defendant." However, transient jurisdiction is no more onerous than the Massachusetts long-arm statute, the validity of which the defendants here do not question. A nonresident defendant who is subject to the jurisdiction of Massachusetts courts under the long-arm statute will suffer the same hardship as a nonresident defendant who must litigate in Massachusetts after being served with process in the Commonwealth.

Additionally, we adopt Justice Brennan's approach to "the fairness of the prevailing in-state service rule" in the Burnham case. Burnham, 495 U.S. at 629, 110 S.Ct. 2105 (Brennan, J., concurring). Although Brennan's analysis occurred in the due process context, it explains why transient jurisdiction is fair to defendants. "The transient rule is consistent with reasonable expectations ...." Id. at 637, 110 S.Ct. 2105. "By visiting the forum State, a transient defendant actually avails himself ... of significant benefits provided by the State. His health and safety are guaranteed by the State's police, fire, and emergency medical services; he is free to travel on the State's roads and waterways; he likely enjoys the fruits of the State's economy ..."; and he may sue in the State's courts (quotation omitted). Burnham, supra at 637-638, 110 S.Ct. 2105, quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). There is nothing unfair about subjecting to the State's judicial processes someone who benefits from these services. Id. at 638, 110 S.Ct. 2105 ("Without transient jurisdiction, an asymmetry would arise: A transient would have the full benefit of the power of the forum State's courts as a plaintiff while retaining immunity from their authority as a defendant"). Finally, "modern transportation" and "procedural devices" such as forum non conveniens, discussed supra, mean that "[t]he potential burdens on a transient defendant are slight" (alteration and quotation omitted). Id. at 638-639, 110 S.Ct. 2105, quoting Burger King Corp., supra at 474, 105 S.Ct. 2174.

On balance, the weakness of the arguments in favor of abolishing transient jurisdiction, our general reluctance to modify the common law, the United States Supreme Court's analyses of transient jurisdiction among the States, and the availability of forum non conveniens result in our decision to reaffirm the common-law rule of transient jurisdiction for defendants who are intentionally, knowingly, and voluntarily in the Commonwealth. See Shiel, 480 Mass. at 112, 101 N.E.3d 290 (declining "to fell judicial precedent"). Here, the defendants were served with process while attending a softball game in Massachusetts. Therefore, they were served while knowingly and voluntarily visiting the Commonwealth for a particular purpose, namely, to attend a sporting event. Personal jurisdiction over them was proper as a matter of State law.

3. Due process. Finally, we address whether exercising personal jurisdiction over the defendants satisfies due process. See SCVNGR, Inc., 478 Mass. at 330, 85 N.E.3d 50 (clarifying that constitutional inquiry should follow, rather than precede, State-law analysis). Guided by the United States Supreme Court's decision in the Burnham case, we conclude that it does. In the Burnham case, 495 U.S. at 628, 110 S.Ct. 2105, the Supreme Court unanimously affirmed the lower court's exercise of personal jurisdiction "based on the fact of in-state service of process." The reasoning of the various opinions makes clear that at least eight of the Justices on the Burnham court would uphold the constitutionality of transient jurisdiction over defendants who are intentionally, knowingly, and voluntarily in the forum State when served with process. See id. at 619, 110 S.Ct. 2105 (opinion of Scalia, J.) ("jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system"); id. at 628, 110 S.Ct. 2105 (White, J., concurring) ("claims in individual cases that the [transient jurisdiction] rule would operate unfairly as applied to the particular nonresident involved need not be entertained. At least this would be the case where presence in the forum State is intentional, which would almost always be the fact"); id. at 640, 110 S.Ct. 2105 (Brennan, J., concurring) ("In this case, it is undisputed that petitioner was served with process while voluntarily and knowingly in the State of California. I therefore concur in the judgment"). As already discussed, the defendants here were served while intentionally, knowingly, and voluntarily in Massachusetts to watch a softball game. Therefore, personal jurisdiction over them also satisfies due process.

Conclusion. Because personal jurisdiction over the defendants comports with both State law and due process, the order of the Superior Court allowing the defendants' motion to dismiss is reversed, and the matter is remanded to the Superior Court for proceedings consistent with this opinion.

So ordered.

      Judgment on the defendants' motion to dismiss was entered on August 8, 2017. On August 15, 2017, the plaintiff served on the defendants a motion for reconsideration of defendants' motion to dismiss. On August 28, 2017, the plaintiff filed the motion for reconsideration of the motion to dismiss and a notice of appeal. The motion for reconsideration was decided in September 2017. Because the plaintiff did not file a new notice of appeal after the motion for reconsideration had been decided, she failed to comply with Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013). We nevertheless decide the appeal. On the compressed time frame here, the concerns underlying rule 4 (a) are not implicated: no action on the appeal had yet been taken before the motion for reconsideration was decided. See Anthony v. Anthony, 21 Mass. App. Ct. 299, 301, 486 N.E.2d 773 (1985) ("There [is] little point in having an appeal work its way up the ladder from a judgment which might be altered"). The appeal has been briefed and argued, and we transferred it here to address the important issue that it presents.

      Our holding applies only to individuals. We do not address whether presence in the forum State when served with process confers personal jurisdiction over corporations. Cf. Daimler AG v. Bauman, 571 U.S. 117, 139, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) (finding that foreign corporation was not "subject to suit [in forum State] on claims by foreign plaintiffs having nothing to do with anything that occurred or had its principal impact in [forum State]"); Brown v. Lockheed Martin Corp., 814 F.3d 619, 637 (2d Cir. 2016) ("federal due process rights likely constrain an interpretation that transforms a run-of-the-mill registration and appointment statute into a corporate 'consent' ... to the exercise of general jurisdiction by [S]tate courts"); Martinez v. Aero Caribbean, 764 F.3d 1062, 1071 (9th Cir. 2014), cert. denied, --- U.S. ----, 135 S.Ct. 2310, 191 L.Ed.2d 978 (2015) ("Burnham [v. Superior Court of Cal., 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990),] does not authorize tag jurisdiction over corporations").

      We acknowledge the amicus brief submitted by the Massachusetts Defense Lawyers Association.

      We take these facts from the complaint and, to the extent they are favorable to the plaintiff, from the defendants' memorandum in support of their motion to dismiss.

      The plaintiff also contends that there is a statutory basis for transient jurisdiction here. We disagree. The Legislature has codified transient jurisdiction in the context of support orders and parentage disputes. See G. L. c. 209D, § 2-201 (a ) (1). But other statutes that seem to confer jurisdiction over nonresident defendants present in Massachusetts are inapposite, as they pertain to venue or service of process. See G. L. c. 223, § 1 ("If neither party lives in the commonwealth, the action may be brought in any county"); G. L. c. 223, § 2 (district courts "shall have jurisdiction of a transitory action against a defendant who is not an inhabitant of the commonwealth, if personal service or an effectual attachment of property is made within the commonwealth; and such action may be brought in any of said courts in the county where the service or attachment was made"); G. L. c. 227, § 1 ("A personal action shall not be maintained against a person not an inhabitant of the commonwealth unless he or his agent ... has been served with process in the commonwealth ...").

      Other statutes conferring personal jurisdiction over nonresident defendants are scattered throughout the General Laws. See, e.g., G. L. c. 104, § 9 (personal jurisdiction over nonresident wholesalers); G. L. c. 110A, § 414 (h ) (personal jurisdiction over those who violate Uniform Securities Act); G. L. c. 159C, § 12 (personal jurisdiction over nonresidents who violate telemarketing solicitation laws); G. L. c. 201A, § 2 (b ) (personal jurisdiction over custodians under Uniform Transfers to Minors Act); G. L. c. 203B, § 4 (c ) (personal jurisdiction over custodial trustees under Uniform Custodial Trust Act); G. L. c. 209D, § 2-201 (a ) (personal jurisdiction over nonresidents in support order and parentage proceedings).

      Our personal jurisdiction cases, which address the due process clause but not the Massachusetts Constitution, indicate that the Massachusetts Constitution provides the same level of protection as the due process clause with regard to personal jurisdiction. See, e.g., Exxon Mobil Corp. v. Attorney Gen., 479 Mass. 312, 314, 94 N.E.3d 786 (2018) (not mentioning Massachusetts Constitution and stating that personal jurisdiction over nonresident defendant "must satisfy ... the requirements of the due process clause of the Fourteenth Amendment to the United States Constitution").

      The Legislature has eliminated expressly transient jurisdiction in the context of modifying support orders. General Laws c. 209D, § 2-201 (a ) (1), codifies transient jurisdiction with regard to support orders and parentage disputes. However, G. L. c. 209D, § 2-201 (b ), states that "[t]he bases of personal jurisdiction set forth in subsection (a ) or in any other law of the commonwealth may not be used to acquire personal jurisdiction ... to modify a child support order of another state unless" other statutory requirements are met. That the Legislature has limited the use of transient jurisdiction with regard to modifying support orders is evidence that it has not eliminated transient jurisdiction as a general matter.

      The Legislature did not implicitly repeal common-law transient jurisdiction when it enacted the long-arm statute in 1968. See St. 1968, c. 760. The long-arm statute established a list of ways to exercise personal jurisdiction over nonresident defendants, and presence in Massachusetts was not included on that list. However, statutes conferring personal jurisdiction through implied consent and presence already existed when the Legislature enacted the long-arm statute. See, e.g., G. L. c. 90, § 3B, inserted by St. 1923, c. 431, § 2 (implicitly appointing in-State agent for service of process for any driver involved in an "accident or collision" in Massachusetts); G. L. c. 223, § 38, inserted by St. 1906, c. 269 (discussing service of process on foreign corporations). If the Legislature intended the long-arm statute to be comprehensive, it would have been effectively abolishing these other statutes. But the Appeals Court has held, and we agree, that at least one of these laws continues to provide a basis for personal jurisdiction. See Campbell v. Frontier Fishing & Hunting, Ltd., 10 Mass. App. Ct. 53, 55, 405 N.E.2d 989 (1980) ("[G. L. c. 223, § 38,] is independently viable and has not been supplanted by G. L. c. 223A"). See also In re Lupron Mktg. & Sales Practices Litig., 245 F.Supp.2d 280, 300 n.43 (D. Mass. 2003) ("Massachusetts provides an alternative statutory basis for asserting jurisdiction over a foreign corporation through its 'soliciting business' statute, [G. L.] c. 223, § 38"). Therefore, we do not read the long-arm statute to be an exclusive list.

      Justice Scalia's opinion of the Court was joined by two Justices in whole and by Justice White in part. Justice White wrote his own concurring opinion, as did Justice Stevens. Justice Brennan wrote a concurring opinion joined by three other Justices.

      The defendants here argue for dismissal on grounds of forum non conveniens. But they did not raise this issue below, and the forum non conveniens inquiry is fact-intensive. See W.R. Grace & Co. v. Hartford Acc. & Indem. Co., 407 Mass. 572, 577, 555 N.E.2d 214 (1990) ("A decision whether to dismiss an action under the doctrine of forum non conveniens ... depends greatly on the specific facts of the proceeding before the court"). Therefore, we do not address this argument on the limited record before us. See Aetna Cas. & Sur. Co. v. Continental Cas. Co., 413 Mass. 730, 734-735, 604 N.E.2d 30 (1992) ("A prevailing party is ... entitled to argue on appeal that the judge was right for the wrong reason, even relying on a principle of law not argued below. If, however, the new argument depends on facts not established in the record, we cannot accept the new argument on appeal"). Cf. Gianocostas v. Interface Group-Mass., Inc., 450 Mass. 715, 716, 723-727, 881 N.E.2d 134 (2008) (conducting forum non conveniens analysis when issue was raised below and relevant affidavits were in record).

      Because Justice Stevens did not base his conclusion on any particular doctrinal framework, we do not address his analysis. See Burnham, 495 U.S. at 640, 110 S.Ct. 2105 (Stevens, J., concurring).

      Although not necessary to our decision, other undisputed connections between the defendants and Massachusetts are apparent from the record. The defendants hosted the softball team of the Worcester Polytechnic Institute (WPI), which is located in Massachusetts, at the defendants' property in Florida, and the alleged tort occurred during the team's visit. The WPI team had traveled to Florida during a "similar" trip in the past, although it is unclear whether they visited the defendants on that earlier trip. The defendants' daughter coached the WPI team at the time of the alleged tort. And the defendants were served with process while attending a softball game at Worcester State College.


author: BUDD, J.

text:
    COMMONWEALTH v. Jose HERNANDEZ.
    SJC-11467
    Supreme Judicial Court of Massachusetts, Essex..
    Argued November 9, 2018. Decided January 9, 2019.
    David H. Mirsky (Joanne T. Petito also present) for the defendant.
    Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Gaziano, Budd, & Cypher, JJ.
   BUDD, J.

On the evening of June 7, 2009, the defendant, Jose Hernandez, shot and killed Roberto Plaza as Plaza sat in his motor vehicle. The defendant was convicted of murder in the first degree on a theory of deliberate premeditation in connection with the shooting death. We consolidated his direct appeal with his appeal from the denial of his motion for a new trial. After full consideration of the trial record and the defendant's arguments, we affirm the defendant's conviction and the denial of his motion for a new trial, and we decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E.

Background. We summarize the facts as the jury could have found them, reserving certain details for discussion infra. On the evening of June 7, 2009, the defendant and his friend, Jorge Santiago, were drinking beer and using heroin at the defendant's home in Lawrence. As the defendant was inspecting a firearm that Santiago showed him, the victim knocked at the door, announced himself, and said he wanted to purchase narcotics. Without opening the door, the defendant told the victim to "[g]et away" and to "[c]all [his] workers." The victim persisted, knocking again and stating that the defendant's workers "do not answer the phones." The defendant opened the door and began to argue with the victim.

The victim eventually walked back to his motor vehicle, which was parked in front of the defendant's home, and started the engine. The defendant walked up to the passenger side of the motor vehicle, where the argument continued. The defendant then pulled the handgun from his pocket and fired it into the vehicle, and then walked away. The victim's motor vehicle thereafter proceeded a short way down the street, left the roadway, knocked down a fence, and crashed into a couple motor vehicles parked in a nearby lot. Neighbors found the victim breathing but unable to respond to questions. He died soon after from a gunshot wound to the chest.

In the meantime, after the shooting, the defendant hid the firearm in a tree stump located in the backyard of a neighboring home and then contacted a friend, Miguel Sierra, who retrieved (and later sold) the firearm and provided the defendant with travel arrangements to Connecticut the next day. In November 2009, the defendant was located and arrested in Connecticut.

Discussion. On appeal, the defendant challenges the denial of his motion to dismiss the indictment and certain evidentiary rulings by the trial judge. He also appeals from the denial of his motion for a new trial based on newly discovered and improperly withheld evidence. Finally, the defendant asks this court to reduce the verdict to manslaughter pursuant to our authority under G. L. c. 278, § 33E.

1. Grand jury presentment. Three days after the victim was killed, a confidential informant advised police that an individual claimed that he was "putting a hit out" on the victim because the victim previously had failed to pay for heroin that the individual had provided to the victim. The confidential informant further reported that the day after the shooting, when the informant asked the individual about the "hit," the individual told the informant, "[D]on't worry about [it], I already had it taken care of."

The defendant argues that the information from the confidential informant should have been presented to the grand jury as exculpatory evidence that raised a "fundamental doubt as to the credibility of the prosecution's entire case" against the defendant, and that therefore his motion to dismiss the indictment was improperly denied. We disagree.

It is well settled that "[p]rosecutors are not required in every instance to reveal all exculpatory evidence to a grand jury." Commonwealth v. McGahee, 393 Mass. 743, 746, 473 N.E.2d 1077 (1985), citing Commonwealth v. O'Dell, 392 Mass. 445, 447, 466 N.E.2d 828 (1984). "It is only when the prosecutor possesses exculpatory evidence that would greatly undermine either the credibility of an important witness or evidence likely to affect the grand jury's decision, or withholds exculpatory evidence causing the presentation to be 'so seriously tainted,' that the prosecutor must present such evidence to the grand jury." Commonwealth v. Wilcox, 437 Mass. 33, 37, 767 N.E.2d 1061 (2002), quoting O'Dell, supra.

The defendant has made no such showing here. The informant's uncorroborated statement about another individual putting a "hit" out on the victim did not affect the credibility of the testimony of any of the grand jury witnesses. This includes Santiago, who testified before the grand jury about the argument between the defendant and the victim just prior to the shooting, and further testified that he witnessed the defendant point the firearm at the motor vehicle where the victim was sitting, and shoot. Given this evidence, the omission of the informant's statement cannot be said to have affected the grand jury's decision to indict the defendant in this case. , See Commonwealth v. Buckley, 410 Mass. 209, 220-221, 571 N.E.2d 609 (1991).

2. Limits on cross-examination. Both the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights guarantee a criminal defendant's right to confront the witnesses against him or her through cross-examination. Commonwealth v. Miles, 420 Mass. 67, 71, 648 N.E.2d 719 (1995), and cases cited. The defendant argues that the judge improperly curtailed his cross-examination of Sierra, thereby denying him the ability to demonstrate to the jury the witness's true motivation for testifying against the defendant, i.e., that in exchange Sierra would receive a "deal" on then-pending charges. Contrary to his assertion, the defendant had ample opportunity to explore fully Sierra's motivation to cooperate with the government through both cross- and recross-examination.

On direct examination, Sierra acknowledged that he was cooperating with the Commonwealth in exchange for a "deal" on two drug charges. During cross-examination, trial counsel explored thoroughly the particulars of the cooperation agreement -- that is, in exchange for testifying, Sierra received a prison sentence of from two and one-half to three years on a drug charge from 2008 and expected to receive a probation sentence of five years on a pending drug charge from 2009. Sierra also conceded on cross-examination that he came forward to cooperate only after he had been charged in a second drug case, and that he expected to receive immunity for the assistance he gave the defendant after the shooting. The initial cross-examination began and ended with Sierra acknowledging all of the particulars of the "deal."

On redirect examination, the Commonwealth sought to minimize the significance of the benefits Sierra was to receive by asking if there were other reasons why he was testifying at trial. Sierra responded: "The only reason I'm testifying is because I want his family to know what really happened to this kid, because I don't think they know what really happened ...."

On recross-examination the defendant sought to reemphasize the "deal" in an attempt to establish it as the "real reason" Sierra was testifying. Although the defendant contends that, during his recross-examination, the judge improperly precluded him from demonstrating Sierra's bias by sustaining the Commonwealth's objections, we are hard pressed to understand the concerns he raises. The Commonwealth's first two objections were to questions that had been asked and answered previously and had nothing to do with Sierra's motivation to cooperate with the government. The judge was well within his discretion to limit repetitive questions. See Commonwealth v. Watson, 377 Mass. 814, 837, 388 N.E.2d 680 (1979) ("A judge certainly has wide discretion to limit repetitive or redundant cross-examination, and there was no showing that the judge's action on these matters unfairly impaired the defendant's right of cross-examination").

The remaining two objections were to questions regarding the timing of Sierra's decision to come forward to cooperate and his reason for doing so. The objections properly were sustained based on the characterization of the cooperation agreement as "the deal of a lifetime" and a "huge break." See Commonwealth v. O'Brian, 445 Mass. 720, 729 n.12, 840 N.E.2d 500, cert. denied, 549 U.S. 898, 127 S.Ct. 213, 166 L.Ed.2d 171 (2006). However, the defendant was permitted to rephrase the questions and was not precluded from eliciting from Sierra that he came forward with information about the shooting in order to get a deal from the government. There was no error.

3. Lay opinion testimony. At trial the defendant asserted that he killed the victim in self-defense. The defendant sought to demonstrate that the reason for the victim's behavior was that the victim was in need of heroin and the defendant would not provide him with any. On cross-examination of Santiago, the judge sustained objections to general questions posed to Santiago about what happens when one is "coming down" from a heroin high. The defendant now argues that he was denied a meaningful opportunity to present a complete defense because the judge curtailed testimony from Santiago regarding the reason for the victim's behavior. We disagree.

A lay opinion is admissible only where it is (a) rationally based on the witness's perception; (b) helpful to a clear understanding of the witness's testimony or in determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge. Mass. G. Evid. § 701 (2018). See Commonwealth v. Canty, 466 Mass. 535, 541, 998 N.E.2d 322 (2013). Here, the judge was careful to ensure that Santiago, a lay witness, did not answer general questions about how a person reacts when suffering from heroin withdrawal, as such testimony would require specialized knowledge. , As the judge properly precluded a lay witness from testifying as an expert, there was no error and no abuse of discretion. See e.g., Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 330, 930 N.E.2d 91 (2010) (error to allow lay witnesses to testify to whether defendant showed "overt signs of a mental illness" because such witnesses were not qualified as experts).

4. Motion for new trial. At trial, chemist Erik Koester testified as the crime scene supervisor. He testified that at the scene he inspected the outside of the vehicle and searched the surrounding area. He also testified regarding gunshot residue on the victim's clothes. Prior to oral argument on the defendant's direct appeal, the defendant's appellate counsel became aware that Koester had work-related performance issues on his record and had since resigned from the State police crime laboratory (crime lab). Oral argument was postponed to allow the defendant to file a motion for a new trial based on this information. The motion was remanded to the Superior Court, where it was denied after a nonevidentiary hearing. The defendant now argues that the motion was improperly denied because the information on Koester's performance deficiencies raises doubts as to the accuracy and reliability of the evidence collection in his case.

A judge "may grant a new trial at any time if it appears that justice may not have been done." Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). We only disturb the denial of a motion for a new trial where there has been a "significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). As the motion judge was not the trial judge, and as the motion judge conducted a nonevidentiary hearing, we are in "as good a position as the motion judge to assess the trial record" (citation omitted). Commonwealth v. Phinney, 446 Mass. 155, 158, 843 N.E.2d 1024 (2006), S.C., 448 Mass. 621, 863 N.E.2d 496 (2007). We conclude that although information regarding Koester's failed proficiency tests should have been disclosed as exculpatory evidence, the motion judge did not abuse his discretion in denying the motion for a new trial.

a. Nondisclosure of exculpatory evidence. The trial in this case began on March 21, 2012. On March 9, 2012, Koester was informed that the "satisfactory" result he had previously received on his 2011 crime scene proficiency test had been rescinded and that instead he received an "unsatisfactory" result due to his method of measuring blood spatter. On March 15, 2012, a member of the crime lab quality assurance management section was informed that Koester received "unsatisfactory" results on his 2010 crime scene proficiency test, also as a result of improperly measured blood spatter evidence. This information was not disclosed to the defense prior to trial.

This court had occasion to consider the implications of failing to disclose Koester's performance deficiencies to the defense in another case in which Koester was involved. See Commonwealth v. Sullivan, 478 Mass. 369, 85 N.E.3d 934 (2017). In Sullivan, we concluded that, because the information possessed by the prosecution at the time of trial could have been used to impeach Koester, it was exculpatory and should have been disclosed to the defense prior to trial. Id. at 380-381, 85 N.E.3d 934. The same is true for those performance deficiencies known at the time of Hernandez's trial. See id. at 380, 85 N.E.3d 934, citing Commonwealth v. Martin, 427 Mass. 816, 823-824, 696 N.E.2d 904 (1998) (Commonwealth has duty to disclose exculpatory evidence possessed by prosecution team, including information in possession of State police crime laboratory chemists who participate in case). See also United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (government's constitutional obligation to disclose such evidence applies even if defendant did not request it). Notwithstanding the motion judge's ruling to the contrary, "[e]vidence tending to impeach an expert witness for incompetence or lack of reliability falls within the ambit of the Commonwealth's obligations under Brady." Sullivan, 478 Mass. at 381, 85 N.E.3d 934. See Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

In addition, after the trial it was determined that Koester had failed a trace evidence proficiency test that he took in 2011. Because this information concerned an event that occurred prior to trial, but was discovered posttrial, it may fairly be considered as newly available evidence. See Grace, 397 Mass. at 306, 491 N.E.2d 246 (newly discovered evidence must have been unknown to defense and not reasonably discoverable at time of trial). However, as discussed infra, none of the evidence of Koester's performance deficiencies warrants granting a new trial.

b. Effect of nondisclosure. Even if evidence is exculpatory, a defendant seeking a new trial must still establish prejudice.

Commonwealth v. Murray, 461 Mass. 10, 20-21, 957 N.E.2d 1079 (2011). Here, because the defendant did not specifically request information relating to Koester's work performance, we view the undisclosed evidence and the newly available evidence under the same prejudice standard, that is, "whether there is a substantial risk that the jury would have reached a different conclusion if the evidence had been admitted at trial." Id. at 21, 957 N.E.2d 1079, quoting Commonwealth v. Tucceri, 412 Mass. 401, 413, 589 N.E.2d 1216 (1992).

We conclude, as we did in Sullivan, 478 Mass. at 382-383, 85 N.E.3d 934, that the motion judge did not abuse his discretion in denying the defendant's motion for a new trial because the new evidence would not have been "a real factor in the jury's deliberations." Grace, 397 Mass. at 306, 491 N.E.2d 246, citing Davis v. Boston Elevated Ry., 235 Mass. 482, 495-496, 126 N.E. 841 (1920).

The defendant testified that he shot the victim in self-defense when he saw the victim reach for something shiny that the defendant believed was a gun. The prosecution presented evidence that the only items found in the motor vehicle in which the victim sat were a steering wheel locking device, a baseball hat, a cigarette lighter, a cellular telephone, and a twenty dollar bill, and argued that none of these items could have been mistaken for a firearm.

In his motion for a new trial, the defendant claimed that the Commonwealth used Koester to bolster generally the credibility of the investigation and that the Koester deficiency evidence could have been used to raise doubts as to the thoroughness of the search of the vehicle. This argument fails. First, although Koester was involved in the investigation, he neither searched the motor vehicle at the scene nor participated in the more thorough search that took place at the tow yard. In fact, his participation in the investigation at the crime scene yielded nothing of evidentiary value. Further, although Koester was present at the crime scene in a supervisory role, he supervised other crime scene analysts, not the police sergeant who searched the vehicle at the scene. Koester's only substantive testimony at trial pertained to the gunshot residue recovered on the victim's clothes, an issue that was ultimately made moot by the defendant's own admission that he shot the victim.

At trial, the defendant sought to demonstrate through cross-examination, and argued at closing, that investigators failed to conduct a comprehensive search of the victim's vehicle. In his motion for a new trial, although the defendant attempted to connect Koester's performance issues with the thoroughness of the investigation, because Koester was not involved in the search of the motor vehicle, the evidence of his performance issues had no bearing on the Bowden defense that the defendant raised. See Commonwealth v. Bowden, 379 Mass. 472, 485-486, 399 N.E.2d 482 (1980) (inadequacy of police investigation is permissible ground for defense).

As the evidence regarding Koester's competence could have been introduced only to impeach him, its absence does not rise to the level of prejudice entitling the defendant to a new trial. See Sullivan, 478 Mass. at 383, 85 N.E.3d 934, quoting Commonwealth v. Lo, 428 Mass. 45, 53, 696 N.E.2d 935 (1998) ("Newly discovered evidence that tends merely to impeach the credibility of a witness will not ordinarily be the basis of a new trial"). The motion judge did not abuse his discretion in denying the defendant's motion.

5. Review under G. L. c. 278, § 33E. Finally, the defendant asks us to exercise our extraordinary power to grant relief under G. L. c. 278, § 33E. We have reviewed the record in its entirety and see no basis to set aside or reduce the verdict of murder in the first degree.

Conclusion. The judgment is affirmed. The order denying the motion for a new trial is also affirmed.

So ordered.

      Even if such a statement was made to the confidential informant, it would not have necessarily exculpated the defendant, as the statement would not have been inconsistent with the defendant having been the one who performed the "hit."

      We note that the defendant chose not to present this evidence at trial, opting instead to claim self-defense. This strategy made sense given the strength of the evidence that the defendant was the shooter.

      Both charges carried a five-year mandatory minimum prison sentence that could have been imposed consecutively.

      Miguel Sierra initially responded, "The main reason is that they said the family, they stab me in the back." Trial counsel objected to the response, and the judge held a voir dire. When asked during the voir dire why he was testifying, Sierra responded: "I just want this family to know what really happened to their son and I want them to know I've got nothing to do with their son's death. It's my biggest concern. That's what I want to say." The judge allowed the question and answer. Any error resulting from the judge's failure to rule on the defendant's objection to Sierra's initial answer does not amount to a substantial likelihood of a miscarriage of justice, let alone prejudicial error. See Commonwealth v. Martinez, 431 Mass. 168, 173, 726 N.E.2d 913 (2000) (we review testimony objected to at trial for prejudicial error); Commonwealth v. Garcia, 379 Mass. 422, 439, 399 N.E.2d 460 (1980) ("In the absence of an objection and exception, although this court may still find reversible error under G. L. c. 278, § 33E, it will do so only 'upon a showing of grave prejudice or substantial likelihood that a miscarriage of justice has occurred' "). Sierra's initial statement had to do with his motive for testifying apart from the "deal," which is permissible for a party to elicit during questioning. See Commonwealth v. Allison, 434 Mass. 670, 682-683, 751 N.E.2d 868 (2001) (not error to allow witness's answer because prosecutor's question was directed at witness's motive for testifying).

      Trial counsel asked Sierra to reconfirm that he was not present at the time of the shooting, and that he sold the firearm used in the shooting. The objection to the second question was sustained further as being beyond the scope of the redirect examination. See Commonwealth v. O'Brien, 419 Mass. 470, 476, 645 N.E.2d 1170 (1995).

      We are generally wary of lay opinion regarding the behavioral effects of intoxicants. See, e.g., Commonwealth v. Canty, 466 Mass. 535, 544, 998 N.E.2d 322 (2013) (police officer may not offer opinion on whether defendant was operating motor vehicle while under influence of alcohol or whether ability to operate motor vehicle safely was diminished due to alcohol); Mass. G. Evid. § 702 (2018). Contrast Commonwealth v. Finstein, 426 Mass. 200, 203, 687 N.E.2d 638 (1997) (psychiatrist testified that inability to control impulses not typical of heroin withdrawal); Commonwealth v. Fielding, 371 Mass. 97, 110-111 & nn.18-19, 353 N.E.2d 719 (1976) (physicians testified at length describing symptoms and signs of withdrawal from heroin).

      The judge did, however, allow trial counsel to elicit from Santiago testimony regarding his own experience with heroin and whether he recognized similar characteristics in the victim's behavior prior to the shooting.

      A Superior Court judge who was not the trial judge decided the motion because the trial judge had since been appointed to this court.

      We note that although Erik Koester's supervisors had been made aware of his 2010 test results prior to trial, Koester himself was not informed until after the trial had concluded. We have not opined on whether the duty to disclose exculpatory evidence extends to supervisors of chemists on the prosecution team; however, the Commonwealth concedes this point.

      The motion judge determined that because Koester testified to only factual events, the evidence of his work performance would not have been admissible for impeachment purposes.

      The initial satisfactory result was rescinded after the defendant's trial had taken place, and Koester instead received an unsatisfactory result.

      The bulk of the evidence upon which the defendant relied in his motion for a new trial concerned failed proficiency tests and other performance-related incidents that took place after the defendant's conviction. Because the events themselves occurred posttrial, they do not qualify as newly discovered evidence. Accord Commonwealth v. Stewart, 422 Mass. 385, 389, 663 N.E.2d 255 (1996) (posttrial polygraph results not newly discovered evidence for purposes of new trial motion). See Commonwealth v. Freeman, 442 Mass. 779, 790, 817 N.E.2d 727 (2004) (posttrial plea agreements with prosecution witnesses not newly discovered evidence). Cf. Reporters' Notes (1973) to Rule 60, Mass. Ann. Laws Court Rules, Rules of Civil Procedure, at 1255 (LexisNexis 2018) ("It is ... settled practice that the phrase 'newly discovered evidence' refers to evidence in existence at the time of trial but of which the moving party was excusably ignorant").


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    Supreme Judicial Court of Massachusetts.
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    Supreme Judicial Court of Massachusetts.
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    Supreme Judicial Court of Massachusetts.
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    Supreme Judicial Court of Massachusetts.
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