text:
    COMMONWEALTH v. Christopher ADAMS.
    15-P-86
    Appeals Court of Massachusetts.
    Entered: May 8, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury convicted the defendant of assault and battery by means of a dangerous weapon (ABDW), assault and battery (A&B), and unarmed robbery. The defendant was jointly tried with his son, who faced parallel charges. On appeal, the defendant challenges the sufficiency of the evidence, asserts error in the prosecutor's closing argument, alleges that the admission of a partial confession by his son without limiting instructions violated his rights pursuant to the confrontation clause, and argues that the assistance of his trial counsel was ineffective in certain respects. Because we conclude that the evidence was insufficient to support the conviction for unarmed robbery, we vacate that conviction and order that a judgment of acquittal be entered with regard to that charge. We otherwise affirm.

Background. 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 from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). With that standard in mind, we begin by summarizing the facts as the jury could have found them.

The victim here was Gary Medeiros, who for a time had been romantically involved with the defendant's younger daughter. On May 18, 2011, weeks after he and the daughter had broken up, Medeiros stopped by the home at which the defendant and the defendant's wife, daughters, and son lived. Medeiros entered the home and stole at least $1,800 in cash. After the daughter contacted Medeiros about the theft, which he admitted, Medeiros sent the daughter a text message indicating that he had returned the money to the family's mailbox. However, only approximately $1,000 of the money was found there. Aware of Medeiros's actions and the shortfall, the defendant and his son drove off in a truck to find Medeiros. The defendant's son was driving.

Encountering Medeiros's car on Route 79, the son pulled the truck across the highway to force Medeiros to stop. This largely blocked traffic, with cars slowly having to make their way past the stopped vehicles. That in turn meant that there was a parade of passersby who were able to observe successive portions of what transpired among the defendant, the defendant's son, and Medeiros.

According to one eyewitness, the defendant pulled Medeiros out of his car and began punching him. The defendant's son subsequently took over beating Medeiros by knocking him to the ground and then viciously and repeatedly kicking him in the head with his work boot. While this was occurring, the defendant was observed counting the money that he or the son apparently had retrieved from Medeiros, speaking on a cellular telephone (cell phone), and rebuffing efforts by concerned bystanders to intervene. For example, after one of the passersby told the defendant's son to get away from Medeiros, the defendant approached the passerby and told him that he "[did not] know what [Medeiros] did." After one of the other bystanders pulled a gun and sirens could be heard, the defendant and his son left the scene in the truck. Although Medeiros himself left on his own, he shortly thereafter was found unconscious at his home and subsequently was diagnosed with permanent brain damage.

A police officer stopped the truck in which the defendant and his son were fleeing the scene after the officer received a description of it from one of the eyewitnesses. Both the defendant and his son admitted to having been involved in the roadside incident with Medeiros, and they told the officer that they were retrieving their own money that he had stolen from their home. They then presented to the officer the cash that they had taken from Medeiros.

After the defendant and his son returned home, the defendant's daughter spotted Medeiros's cell phone there. Two calls were placed to the phone at this time. One, placed by Medeiros's current girl friend, was answered by an unidentified male. The other, from a police officer, was answered by the defendant's daughter who then passed the phone to her mother (the defendant's wife). The mother informed the officer that her son had told her that he had taken the phone. The mother's statement to this effect was admitted through the officer's testimony, without objection and without a limiting instruction being requested or provided. In a recorded police interview that was played to the jury, the son directly admitted to taking the phone from Medeiros's car.

Discussion. 1. Sufficiency. (a) Assault and battery. In light of the fact that an eyewitness observed the defendant pull Medeiros out of his car and punch him, there is no merit to the defendant's claim that the evidence was insufficient to support the A&B conviction. While it is true that the eyewitness himself was not able to identify the defendant as the one who did this, considering all of the evidence together, the jury readily could have concluded that the man that the eyewitness described seeing was the defendant.

(b) Assault and battery by dangerous weapon. The ABDW conviction was based on the defendant's aiding and abetting his son's kicking Medeiros's head with his shod foot. To establish such liability, the Commonwealth was required to prove "beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime." Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009).

Putting aside whether the jury could have inferred that the defendant and the son formulated a joint plan to attack Medeiros before they stopped his car, there was ample evidence that they acted in concert after they did so. See Commonwealth v. Sexton, 425 Mass. 146, 152 (1997) ("[T]here is no need to prove an anticipatory compact between the parties to establish joint venture if, at the climactic moment the parties consciously acted together in carrying out the criminal endeavor" [citation and quotations omitted] ). This is not a case where the evidence indicates that, prior to the son's kicking Medeiros with his boot, the defendant was a mere bystander. Contrast Commonwealth v. Lopez, 80 Mass. App. Ct. 390, 396-397 (2011) (affirming dismissal of indictment charging felony-murder as joint venturer, where there was no evidence before grand jury that defendant was anything "more than a bystander until the moment the robbery [of the decedent] began"). In fact, the jury heard evidence that the defendant was the one who initiated the attack on Medeiros. From the defendant's own actions, the jury readily could have found that the defendant shared his son's intent to commit an ABDW on Medeiros.

To be sure, the Commonwealth was required to prove beyond a reasonable doubt that the defendant knew that his son was "armed" with his work boots. See Commonwealth v. Gorman, 84 Mass. App. Ct. 482, 489 (2013) (in cases that depend on coventurer's use of dangerous weapon, defendant's "knowledge of [the] weapon is an element of the Commonwealth's proof" [quotation omitted] ). However, the jury could have inferred this from the circumstances presented. See generally Commonwealth v. Lee, 460 Mass. 64, 69-70 (2011) (knowledge that coventurer is armed may be inferred from circumstantial evidence).

It was not necessary for the Commonwealth to prove that the defendant knew that his son intended to kick Medeiros with his boot. See Sexton, supra (sufficient evidence to support guilty verdict for assault and battery by means of dangerous weapon as joint venturer even without defendant's prior knowledge that joint venturer intended to use dangerous weapon [concrete pavement] "to effectuate the attack"). Moreover, after the son began kicking Medeiros in the head, the defendant did not retreat, but instead took actions in furtherance of the attack on Medeiros, such as rebuffing intervention by concerned passersby. By such evidence, the jury could have found that regardless of the extent to which the attack on Medeiros was planned in advance, "at the climactic moment the [defendant and his son] consciously acted together in carrying out the criminal endeavor." Ibid. (quotation omitted).

(c) Unarmed robbery. The unarmed robbery conviction was based on the stealing of Medeiros's cell phone. With the son having admitted to taking the phone, the defendant's own liability was based on the Commonwealth's theory that he aided and abetted this robbery. Reading the evidence in the light most favorable to the Commonwealth, there is still no reasonable basis on which the jury could have inferred that the defendant had contemporaneous knowledge about his son's taking the cell phone, much less that the defendant shared his son's intent in taking it. Compare Commonwealth v. Lashway, 36 Mass. App. Ct. 677, 681 (1994) (insufficient evidence that defendant shared intent to steal item taken by alleged coventurer during street scuffle). The evidence therefore was insufficient to establish an essential element of liability as an aider and abettor. See Zanetti, 454 Mass. at 467.

2. Admission of the son's partial confession without limiting instructions. As noted, the son's acknowledgement that he had taken Medeiros's cell phone came in evidence through the admission of both his partial confession to the police and his statement to his mother. Citing to Bruton v. United States, 391 U.S. 123 (1968), the defendant argues that the admission of such statements from his nontestifying codefendant violated his rights pursuant to the confrontation clause of the Sixth Amendment to the United States Constitution. Because the admitted statements from the son did not directly implicate the defendant, such statements could be admitted so long as they were accompanied by limiting instructions. See Commonwealth v. Rivera, 464 Mass. 56, 69 (2013). No such instructions were requested or given here. The Commonwealth acknowledges that such instructions should have been given, and-for his part-the defendant acknowledges that our review is limited to whether any error caused a substantial risk of a miscarriage of justice.

The son's statements went only to his acknowledged theft of the cell phone, and we have vacated the defendant's conviction for aiding and abetting that offense on other grounds. We therefore need not consider whether the admission of the son's statements without limiting instructions constituted reversible error. Although the defendant has attempted to argue that any error related to the admission of the son's statements also somehow materially affected the jury's deliberations on the ABDW and A&B charges, we are not persuaded. In sum, the admission of the son's statements without limiting instructions, even if error, did not cause any substantial risk of a miscarriage of justice with respect to those convictions.

3. Closing argument. The defendant argues that the prosecutor's closing argument was erroneous in various respects. Because no objections were lodged, our review is limited to whether any errors caused a substantial risk of a miscarriage of justice. Commonwealth v. Resende, 476 Mass. 141, 154 (2017).

We disagree with the defendant's contentions that the prosecutor made statements during his closing argument that were unsupported by the evidence. For example, the prosecutor's statement that the man whom one eyewitness saw punch Medeiros was the same man that another witness identified as the defendant, was supported by reasonable inferences from the evidence. Even the prosecutor's enthusiastic statement that the defendants "literally kicked [Medeiros's] head in," was supported by evidence that Medeiros suffered a skull fracture and major internal damage as a result of the kicking. While it is true that the prosecutor repeatedly emphasized the brutality of the attack, this was well supported by the eyewitness accounts, and it did not cross the line of unduly playing on the jurors' sympathies. Compare Commonwealth v. Wilson, 427 Mass. 336, 351 (1998). See generally Commonwealth v. Costa, 414 Mass. 618, 629 (1993) (recognizing that prosecutor may use "enthusiastic rhetoric, strong advocacy, and excusable hyperbole"). Moreover, the fact that the jury acquitted the defendant of causing Medeiros serious bodily injury demonstrates that such comments did not inflame the jury.

Although the prosecutor's suggestion that defense counsel had misstated the law of joint venture liability arguably was unfounded, the prosecutor ultimately did not offer a counter interpretation, but instead urged the jury to listen carefully to the judge's instructions on this. Nor did the prosecutor make any statements that overtly impugned the integrity of defense counsel. We do agree with the defendant that the prosecutor should have avoided telling the jury-in reference to defense counsel's closing-"Don't be fooled." But to the extent these unobjected-to statements crossed the line, they did not create a substantial risk of a miscarriage of justice, whether on their own or when viewed with other potential errors.

Conclusion. We vacate the judgment of conviction of unarmed robbery, set aside the jury verdict, and order that judgment for the defendant be entered with respect to that charge. The judgments of conviction for ABDW and A&B are affirmed.

So ordered.

vacated in part; affirmed in part.

      The jury found the defendant guilty of ABDW as a lesser included offense of ABDW causing serious bodily injury, and guilty of A&B as a lesser included offense of aggravated A&B.

      Notably, the offense in Lopez, supra at 396, required proof that the defendant shared his alleged coventurer's mental state of "carry[ing] out the robbery with conscious disregard of the risk to [the victim's] life." In contrast, ABDW is a general intent crime. Commonwealth v. Ford, 424 Mass. 709, 711 (1997).

      The Commonwealth also claimed that the defendant committed an unarmed robbery by taking money from Medeiros. By way of a special verdict slip, the jury found the defendant not guilty based on that theory.

      The defendant maintains that in assessing the defendant's guilt, the jury improperly were allowed to consider the son's admitting to stealing the phone. However, in reviewing the sufficiency of the evidence, we consider what "was admitted in evidence without regard to the propriety of the admission." Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting from Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).

      The jury may well have been able to infer that the defendant knew of the stolen phone by the time the defendant and his son were back at the house (after all, the evidence established that the phone was in sufficiently plain view there that the daughter was able to see it). However, the robbery at that point already had been completed.

      We note that the Commonwealth has not demonstrated that the crime at issue (the theft of the phone) was an integral part of the joint enterprise in which they had engaged, or one that readily could have been anticipated by those participating in that enterprise. See Commonwealth v. Harris, 9 Mass. App. Ct. 708, 710 (1980) (defendant "cannot be said to have participated in a joint venture" where evidence does not support inference of plan to commit crime as part of criminal scheme). On the current record, the Commonwealth's suggestion that the phone may have been stolen as part of a coordinated effort to prevent Medeiros from calling the police, or to destroy evidence that the defendant and his son had called Medeiros earlier that day, amounts to speculation. Ibid.

      For the same reason, we do not reach the defendant's argument about ineffective assistance of his trial counsel with respect to the counsel's failure to request a limiting instruction and failure to object to the officer's testimony about the mother telling him that the son had stolen the cell phone.

      The prosecutor used that expression twice. Notably, defense counsel also had used this expression in his own closing argument.

      The defendant's argument fares no better when recast as one contending that his counsel was constitutionally ineffective for failing to object to the prosecutor's closing argument. See Commonwealth v. Randolph, 438 Mass. 290, 295-296 (2002) (equating review for whether unobjected-to error caused substantial risk of miscarriage of justice with whether counsel's failure to object to error deprived defendant of substantial ground of defense).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Bienvenido JEREZ.
    16-P-258
    Appeals Court of Massachusetts.
    Entered: May 8, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a trial in the Superior Court, the defendant, Bienvenido Jerez, was convicted of one count of stalking in violation of a restraining order, G. L. c. 265, § 43(b ) ; two counts of violating a restraining order, G. L. c. 209A, § 7 ; and two counts of intimidation of a witness, G. L. c. 268, § 13B. These convictions arose from the defendant's multiyear campaign of mailing letters full of overt and thinly-veiled threats to his estranged wife (victim) and people close to her. On appeal, he argues that the Commonwealth presented insufficient evidence to sustain a conviction as to four of the five indictments. Alternatively, he seeks a new trial on all charges, on grounds that the judge erred by (1) admitting certain evidence of prior bad acts and (2) inadvertently instructing the jury that they could consider previously excluded evidence regarding a witness's ability to identify the defendant's handwriting. We affirm.

Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), and reserving some facts for our discussion.

The defendant and the victim married in 1998. Within three years, they had a daughter together and moved to Plaistow, New Hampshire. By late 2005, their relationship had deteriorated, with the victim coming to fear the defendant and his increasingly controlling personality. As a result, she left the marital home with the daughter and moved to neighboring Haverhill, Massachusetts. Despite the separation, the defendant continued to pursue the victim, constantly calling her by telephone, following her as she went about her daily life, approaching her in public, and acting in a belligerent manner.

In August, 2006, the victim was at the residence of a man she had been seeing prior to the separation, and who would later become her fiancé, when the defendant appeared outside, smashing the windows on her vehicle and calling her cellular telephone (cell phone). She summoned the police and the defendant was charged in Lawrence District Court with malicious destruction of property (Lawrence charges). She also obtained a G. L. c. 209A abuse prevention order, but the defendant continued to call and convinced her to let it lapse after ten days.

Later in 2006, the defendant was taken into Federal custody on an unrelated matter and eventually came to be confined at a correctional facility in Pennsylvania. While there between 2009 and 2013, he engaged in the mailing campaign at issue. Overwhelmed and scared by the mailings, the victim secured two abuse prevention orders, the first effective from January 11, 2010, to February 9, 2012 (2010 order), and the second from March 19, 2012, through the time of trial (2012 order). Both orders prohibited the defendant from, among other things, having direct or indirect contact, including in writing, with the victim and the daughter. The 2012 order also prohibited such contact with the victim's mother. The defendant, however, was not deterred by either order. To the contrary, he sent out hundreds of mailings to and about the victim while incarcerated in Pennsylvania. More than twenty were sent directly to her. The balance were sent to, among others, the daughter, and the victim's mother, fiancé, stepfather, brother, and employer. The victim intercepted the mailings to the daughter and fiancé, both of whom resided with her. Other recipients shared the mailings with her. The victim, in turn, shared many of the mailings with the police, who, on at least three occasions, brought charges against the defendant for violating the 2010 order.

The defendant enclosed copies of various documents in his mailings, including: the definition of the word "marriage"; an alleged civil complaint against the victim for "violat[ing] the marriage contract by committing adultery"; a letter he fabricated on letterhead from the district attorney's office, which purported to confirm that one set of the abuse prevention order violation charges had been dismissed due to the victim's failure to provide supporting documentation; and communications he purportedly had from prison urging New Hampshire authorities to bring felony charges against the victim for cutting him with a knife in 2005, including copies of hospital records he altered to support the allegation.

The defendant also enclosed handwritten or typed letters in his mailings, wherein he repeatedly referred to the victim as a "bitch" and "whore" who had been "unfaithful," complained about her ongoing communication with the police, and boasted of having "nothing to lose," and no fear of the law. He also repeatedly referred to his reputation as a "gangster," "thug," "hoodlum," and "maniac" prone to doing "crazy" things. He even warned that he had "little gangsters" on the street to "maneuver" the "situation" in Haverhill while he was incarcerated. Furthermore, he wrote of his anger toward the victim and intention to come after her upon his release. To that end, he made it known that his release date was approaching in late 2013. On August 22, 2013, however, he was indicted on the present charges.

Discussion. 1. Sufficiency of the evidence. a. Stalking. The defendant was convicted of stalking in violation of an abuse prevention order on various dates between January 1, 2009, and August 13, 2013. He claims that the conviction cannot stand because the Commonwealth failed, in two respects, to establish that he made a threat with the intent to place the victim in imminent fear of death or bodily injury. See G. L. c. 265, § 43(a ) and (b ) ; Edge v. Commonwealth, 451 Mass. 74, 76 (2008).

First, he contends that after 2009, his mailings were not sent to the victim, but to others. However, direct communication with the victim is not required under G. L. c. 265, § 43(a )(2). See Commonwealth v. Walters, 472 Mass. 680, 693 (2015). In cases "[w]here communication of the threat is indirect-for example, through an intermediary-the Commonwealth must prove ... the defendant intended the threat to reach the victim." Ibid. The proof can be circumstantial. See ibid. Here, the victim testified that she herself received over twenty mailings from the defendant since 2009. And, while she threw most of them away, two were introduced at trial, and both were sent on January 26, 2010, within the relevant time period. Even without those mailings, the defendant did not merely send the remaining mailings to other people; he sent mailings all about the victim to people close to her, including her daughter and fiancé, who lived with her. The defendant's choice of recipients was strong evidence of his intent that the threats reach her. See Commonwealth v. Hughes, 59 Mass. App. Ct. 280, 282-283 (2003). Moreover, he acknowledged in letters that he was aware that his mailings were being shared with the victim and even urged recipients to tell her of his threats. Indeed, he wrote to the victim's mother as follows: "Tell your whore ass daughter to keep her mouth shut until I get out. She will have the opportunity to say all that shit she has been saying to my fucking face ..." The evidence of the defendant's intent to have his threats communicated to the victim was overwhelming.

Second, the defendant argues that the content of the mailings would not lead a reasonable person in the victim's position to suffer imminent fear of death or bodily injury. He suggests that, "[a]t most they were merely words of a man upset at the decline of a marriage." This claim is unavailing. The defendant made known that he was "really fucking mad" and had a "thirst for blood, "due to his perception that the victim had been unfaithful as well as her ongoing communication with authorities. He also made known his intention to act on that anger upon his release. On one occasion, he warned the victim's mother, "You probably think I [am] just talking but there is no talking any more. I just want that bitch to say all the shit she was saying in my face and then we will get it started. I am going to make sure motherfuckas know I am not the one to be fucked with. The closer that I get the more aggressive I get." On other occasions, he wrote of his intention to release his "demons" and "gangsta shit" on the victim. The "only way to stop me," he once warned, "is to kill me."

"A 'true threat' need not take the form of an explicit statement that the speaker intends to cause imminent, physical harm to the victim, but may comprise 'words or actions that-taking into account the context in which they arise-cause the victim to fear such harm now or in the future.' " Walters, supra at 691, quoting from O'Brien v. Borowski, 461 Mass. 415, 425 (2102). Based on the overwhelming evidence adduced at trial, we have no difficulty determining that the content of the defendant's mailings could lead a reasonable person in the victim's position to suffer imminent fear of death or bodily injury, and, therefore, that the defendant's words amounted to true threats.

b. Violation of abuse prevention order. The defendant was convicted of violating the "no contact" provision in the 2012 order by sending an April 5, 2012, letter to the daughter. This required proof that (1) an abuse prevention order was in effect; (2) the defendant knew about the order; and (3) he violated it. See Commonwealth v. Kulesa, 455 Mass. 447, 452 (2009). The defendant contends that the Commonwealth failed to establish the last two elements.

First, he argues that the Commonwealth could not prove that he knew of the 2012 order when he sent the April 5, 2012, letter, because he was served with the order that same day. In fact, he was served with the order, in hand, at 10:14 A.M. The letter, meanwhile, was thirteen pages in length. A reasonable jury could infer that the letter took time to write, and it is not equally likely that it was sent before, as opposed to after, 10:14 A.M. Cf. Commonwealth v. White, 422 Mass. 487, 494 (1996) ("a case cannot be proved if the evidence [is entirely circumstantial and] equally supports two inconsistent propositions"). In addition, the defendant sent a second letter on April 5, 2012, to the victim's mother, wherein he mentioned sending the letter to the daughter and stated, "that whore [the victim] cannot file a violation of the [2012 order] because I got served on the same day." He did not suggest that he sent the letter before he was served, merely that he was confident she could not prove otherwise. When viewed in a light most favorable to the Commonwealth, however, the evidence was sufficient to prove otherwise.

Second, the defendant argues that there was no evidence that he made "contact" with the daughter in violation of the 2012 order because the victim intercepted the letter upon arrival and the daughter never saw it. In support, he cites to Commonwealth v. Cove, 427 Mass. 474 (1998). There, the court held that, even though the jury could have found that Cove placed two telephone calls to his estranged wife's place of employment, the element of "contact" was not met because there was no evidence "that a message had been left for her or anyone else, that the caller had reached her 'voice mail,' or even that she knew before trial that the calls had been made." Id. at 476. The defendant's reliance, however, is misplaced for two reasons. First, while the court in Cove noted the absence of evidence that the estranged wife was aware of the calls, it did not suggest that her awareness was required to establish a violation. Second, the evidence here established that the defendant intentionally wrote a letter to the daughter, mailed it to the address at which she resided, and that it subsequently arrived at that address. The victim also testified that she later told the daughter about the letter. Unlike in Cove, therefore, there was evidence that a message (the letter) was left, it reached the mailbox of a person protected under the 2012 order (the daughter), and the protected person was aware of it. The element of "contact" was established.

c. Intimidation of a witness. The defendant was convicted of intimidation of a witness, the victim, for (1) his mailings on various dates between January 1, 2009, and August 13, 2013, and (2) a letter he sent to her employer on January 9, 2013. This required proof that, among other things, he intended to impede, obstruct, delay, harm, or otherwise interfere with a criminal investigation or proceeding. See G. L. c. 268, § 13B. The defendant argues that such proof was lacking, again, in two respects.

First, he argues that he never demanded that the victim stop speaking to the police, and actually stated that he didn't care if she did. The statute, however, "does not require that a defendant specifically articulate a threat not to speak to the police or other criminal investigator.... A fact finder may evaluate the circumstances in which the statement was made ... to determine whether the defendant in fact intended to intimidate the victim." Commonwealth v. King, 69 Mass. App. Ct. 113, 120 (2007). Here, the defendant wrote things like, "I cannot believe that motherfuckas are still speaking my name to authorities," and, "[i]f motherfuckas did not want a confrontation, they should not have been filing complaints with the police or running their mouths." On other occasions, he suggested that all of his anger could be traced back to the filing of the Lawrence charges and the victim's failure to heed his warnings to withdraw them. Contrary to his assertion, therefore, the letters were replete with explicit or thinly-veiled threats regarding the victim's cooperation with authorities.

Second, the defendant argues that there were no pending criminal investigations or proceedings that he could have intended to interfere with. Specifically, he notes that the Lawrence charges were dismissed on May 18, 2011. However, this argument "construes the statute too narrowly," as there is no bright line rule regarding the timing of an investigation. Id. at 121. Indeed, "[i]t is enough that the jury reasonably conclude from the surrounding circumstances that it was likely that the victim would furnish to an official investigating authority information pertaining to the crime and that the defendant intended to discourage such communication." Ibid. The letters reflect that the victim's communication with the police was an ongoing concern for the defendant. There also was evidence of pending criminal proceedings during the time period covered by the indictments, including the Lawrence charges and the various charges for violating the 2010 order. While some or all of those may have been dismissed at some point, that does not render them irrelevant.

2. Inadvertent reference to stricken testimony. While instructing the jury regarding the defendant's alleged authorship of the mailings, the judge, after noting that the victim had testified that she recognized his handwriting and signature, inadvertently remarked, "and I believe there may have been some similar testimony from [the victim's mother]." The judge had previously excluded any such testimony. As there was no objection to the judge's remark, review is limited to the familiar substantial risk of a miscarriage of justice standard. See Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016).

The Commonwealth's case, including the identification of the defendant as the source of the mailings, was overwhelming. The error, meanwhile, was minor, especially in the context of the trial and instructions as a whole. After conducting the voir dire, the judge instructed the jury that if the victim's mother had said anything about recognizing the defendant's handwriting or signature (she had not), it was stricken and to be disregarded. During the charge, she reiterated that stricken evidence could not be considered, the jurors were the sole finders of fact, nothing she had said or done should be taken as her opinion of what the facts or outcome should be, and nothing she said during the charge was evidence. There is also no basis for inferring that defense counsel's failure to object was the result of a reasonable tactical decision. In the end, therefore, we are not left with "serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting from Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).

3. Prior bad acts. Finally, the defendant argues that the judge erred by admitting evidence of prior bad acts (i.e., acts prior to 2009). He does not dispute that the evidence was relevant to multiple issues at trial, including his state of mind and motive, the victim's state of mind, and to provide context for their relationship and the things written in the letters. Nor does he take issue with the judge's instructions to the jury regarding the limited purposes for which such evidence was admitted. Instead, he argues that the evidence was so pervasive and extensive that its probative value was outweighed by the risk of unfair prejudice to him. "We review questions of admissibility, probative value, and unfair prejudice under an abuse of discretion standard.... We do not overturn a trial judge's decision on these issues absent a clear error of judgment in weighing the relevant factors." Commonwealth v. Rutherford, 476 Mass. 639, 649 (2017). We see no basis for reaching such a conclusion here. The judge gave informed and thoughtful consideration to the issue, both when ruling on the defendant's motion in limine and as the evidence came in at trial.

Judgments affirmed.

      The defendant was acquitted of a third count of intimidation of a witness.

      The defendant does not contest the sufficiency of the evidence as to the charge of violating a restraining order through his mailings to the victim's mother.

      The defendant claimed at one point that he had sent 150 similar letters "to people in the Haverhill community."

      The charges had been nolle prossed in April, 2010, due to the cost of securing the defendant's return from Pennsylvania, and not due to any lack of proof.

      The defendant dismissed restraining orders as "pieces of paper" that work only on people who, unlike him, fear the law, and suggested he could not be controlled by "the police, FBI, ATF, and all other [S]tate and [F]ederal agencies."

      The charge also required proof that (1) the defendant wilfully and maliciously engaged in a knowing pattern of conduct or series of acts during the relevant time period, directed at the victim, which seriously alarmed or annoyed her and would cause a reasonable person to suffer substantial emotional distress, and (2) such conduct violated a G. L. c. 209A abuse prevention order. See § 43(a ) and (b ) ; Edge, supra.

      The defendant also repeatedly expressed anger that the victim had called prison officials complaining about his mailings, which resulted in his loss of 274 days of "good time."

      The Commonwealth also had to prove that (1) the defendant acted wilfully, (2) he directly or indirectly threatened, misled, intimidated, or harassed the victim on or between the given dates, and (3) she was (a) a witness or potential witness at any stage of a criminal investigation or proceeding, (b) aware of information that related to a criminal violation, or (c) furthering a criminal investigation. See G. L. c. 268, § 13B.

      The statute was amended in 2010, see St. 2010, c. 92, § 11, and G. L. c. 256, § 120, but the changes did not affect the charges against the defendant.

      A reasonable jury also could have inferred that, even when the defendant expressed ambivalence about the victim speaking to the police, he did so to convince her of the futility of doing so. Consider the following excerpt from one of his letters:
      "Police cannot even get involved until I commit a crime and threatening to commit a crime is only a misdemeanor offense in the Commonwealth of Massachusetts, only punishable by a six month term. Get the police involved if you want to because I am not scared because when I come back, I will have 100 years to serve. I know that I will be back in as soon as I get out and that is the mentality yall should be worried about.... I am not mad because she cheated but because she didn't do what I say and go to the Lawrence courthouse."

      The evidence, viewed in its entirety, demonstrated that, at the time the defendant mailed the letters he intended to discourage the victim from communicating with the authorities. The defendant argues that the letter to the victim's employer, a public school system, merely discussed her qualifications to teach and could not reasonably be interpreted as an act of witness intimidation. We disagree. The jury were free to view the letter, which was full of personal attacks and insults, in the context of the defendant's other mailings, including a prior threat he made, to interfere with her employment if she did anything to "try to discredit him" with the authorities.

      The victim recognized the handwriting and signatures. The mailings also bore Pennsylvania postmarks, were consistent with other mailings the defendant admitted sending, and contained an error that the victim likely would not have made if she had fabricated them (i.e., the wrong zip code for her address).

      We have also read the defendant's additional briefs brought pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208 (1981), and conclude that the arguments contained therein are unavailing.


text:
    H.D. v. X.Z.
    16-P-1351
    Appeals Court of Massachusetts.
    Entered: May 14, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, X.Z., appearing pro se, appeals from the issuance of a permanent abuse prevention order entered by a judge of the District Court. The plaintiff, H.D., initially obtained an ex parte order in 2013, which was extended multiple times. On August 30, 2016, a further extension hearing took place. Both the plaintiff and the defendant appeared, and the order was extended permanently. Throughout the pendency of the order, the defendant filed numerous motions to modify or vacate the order. In light of the defendant's filings, the judge issued an order that the "[d]efendant is not allowed to file anymore motions ... [and] he can only file [an] appeal."

To the best that we can discern, the defendant appeals from the issuance of the permanent abuse prevention order and the denial of his motion to modify the order. The defendant argues that the permanent abuse prevention order is "invalid" for two reasons: (1) the law does not provide for an extension of an abuse prevention order beyond one year, and (2) his name is misspelled on the order. The defendant additionally argues that the judge erred in denying his motion for modification of the order seeking to remove his daughter, C.Z., and Brockton High School from the permanent order because C.Z. has reached the age of majority and C.Z. has graduated from Brockton High School.

1. Validity of permanent order. We review the extension of an abuse prevention order, entered pursuant to G. L. c. 209A, for an abuse of discretion or error of law. Crenshaw v. Macklin, 430 Mass. 633, 636 (2000). The abuse prevention statute explicitly provides that a judge may enter a permanent order upon expiration of a temporary order. It states:

"[A judge] shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order."

G. L. c. 209A, § 3, inserted by St. 1990, c. 403, § 3. The statute "empowers a judge in the District Court (or any other court with jurisdiction to consider the matter) to issue a permanent protective order at a renewal hearing." Crenshaw, supra at 633. The only criterion for extending the original order is a showing of continued need for the order. See Iamele v. Asselin, 444 Mass. 734, 739 (2005). The defendant has failed to provide us with the transcript from the August 30, 2016, hearing. Without an adequate record on appeal, we are unable to provide a substantive review of the judge's decision to enter the permanent order. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Davis v. Tabachnick, 425 Mass. 1010 (1997) (court refused to address merits of pro se appellant's claims where appendix did not contain necessary record materials; pro se appellants held to same standard as litigants represented by counsel).

2. Motion for modification. The record reflects that C.Z. was at least eighteen years old at the time that the order was made permanent. She had been made a part of the order as a minor child in the custody of the plaintiff. While abuse prevention orders are sometimes modified to reflect that minor children under the order have reached the age of majority, see Vittone v. Clairmont, 64 Mass. App. Ct. 479, 481 n.3 (2005) (adult child removed from abuse prevention order when it was made permanent), we have an inadequate record to determine what should have taken place (or indeed what did take place) here. See Davis, supra. We therefore remand this case for further hearing on the defendant's motion to modify the order requesting deletion of C.Z. and Brockton High School from the permanent order.

3. Order precluding defendant from filing motions. Finally, the defendant objects to the judge's order precluding him from filing further motions. While we are cognizant of the burden that excessive filings place on the District Court, an order absolutely prohibiting an individual from filing motions may be viewed as denying access to the courts. See Brookline v. Goldstein, 388 Mass. 443, 448-449 (1983). A better practice may be to impose a condition that will curtail frivolous filings, yet allow legitimate issues to be addressed, for example, permitting filings but requiring them to be brought to the attention of a supervising judge, who can determine whether they merit a hearing. See Camoscio v. Hodder, 409 Mass. 1001 (1991), cert. denied, 500 U.S. 906 (1991). We therefore vacate so much of the order as precludes the defendant from filing any further motions.

This case is remanded for further hearing on the defendant's motion to modify the permanent order. The clerk's office is directed to make best efforts to notify C.Z. of the hearing, as well as the plaintiff. In all other respects, the permanent order is affirmed.

So ordered.

Vacated in part and remanded; affirmed in part.

      The defendant's argument that the order is invalid because his name is misspelled fails because he has not provided us with any supporting authority. See Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011) (appellant failed to support claims of error with sufficient legal argument or factual detail and failed to cite sufficient supporting authority).

      Even after the entry of a permanent order, the defendant may, at some point, have legitimate grounds to challenge it. See MacDonald v. Caruso, 467 Mass. 382, 387-391 (2014).


text:
    CARE AND PROTECTION OF XAVIAN.
    17-P-1210
    Appeals Court of Massachusetts.
    Entered: May 14, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   Following trial in the Juvenile Court, a judge found the mother unfit to parent the child and placed him in the permanent custody of the Department of Children and Families (department). See G. L. c. 119, § 26. The judge provided for the child's visitation with the mother at the department's discretion. On appeal, the mother primarily contends that two of the judge's factual findings are clearly erroneous, and the finding of the mother's unfitness is not supported by clear and convincing evidence. For the reasons that follow, we affirm.

Background. We summarize the judge's findings of fact, supplemented where necessary by uncontradicted evidence from the record. The child was sixteen years old at the time of trial. He has been diagnosed with cerebral palsy, autism, epilepsy, cortical vision impairment, developmental delays, and flat feet. He is nonverbal and communicates using a number of methods, including modified sign language and picture icons. The child takes medication for his seizure disorder. His developmental delays necessitate physical, speech, and occupational therapy, as well as applied behavioral analysis. Despite the child's medical complexity, he has developed a bond with the mother and, until his removal from her custody in 2015, had always resided with her.

The department became involved in this case in September, 2014, after mandated reporters filed two G. L. c. 119, § 51A, reports (51A reports). The 51A report dated September 25, 2014, alleged educational neglect by the mother based on the child's absence from school since September 16, 2014, and a long history of abrupt changes and gaps in the child's education due to the mother's "distaste for schools and providers." Following an investigation pursuant to G. L. c. 119, § 51B, the department found that the allegations of educational neglect were supported. Undeterred by this finding, or by warnings that failure to send the child back to school would result in a care and protection petition, the mother continued to hold the child out of school through October and November. During this time, the mother, who had several criminal convictions and repeated involvement with the criminal justice system, was often verbally hostile toward department workers. On November 4, 2014, the department received a call from the child's neurologist "expressing concerns for [the child's] safety due to reports that [the] [m]other was physically abusive towards [the child]." It was reported to the department that in November of 2014, the mother "threatened the [child's] neurologist stating that if he did not do what she wanted, she would not give her son his [seizure] medication." After the doctor refused, the mother left the appointment without allowing the doctor to evaluate the child.

On November 25, 2014, the department filed a care and protection petition. Following a preliminary hearing, the Juvenile Court judge granted the mother temporary custody, appointed a guardian ad litem (GAL) for the child, and ordered the mother to cooperate with the department and send the child back to school. The mother initially complied with the order but quickly removed the child from school again in early December, 2014. Although her cited concerns with the school's services were addressed, she refused to send the child back to school. Eventually, after a home visit with the department in mid-December of 2014, the mother sent the child back to school. In January, 2015, the mother received her first service plan from the department. The plan required her to, inter alia, send the child to school daily, meet with the department once a month, refrain from aggressive behavior with service providers, engage in therapy, and ensure that the child is up to date with his medical care.

Over the next several months, the mother repeatedly violated the terms of her service plan. In early January of 2015, she verbally accosted employees of the child's school, which led the school to serve her with a "no trespass" order. On the heels of this incident, she began to withhold the child from school yet again. Although the mother later agreed, following another hearing in March, to work with the department to facilitate a neuropsychological evaluation for the child and to find an alternative school placement, she subsequently failed to do either. Ultimately, in August, 2015, the child was placed in the temporary custody of the department because the mother continued to withhold the child from school. From January to August of 2015, the mother frequently refused to meet with department social workers and engaged in abusive communications with both department personnel and service providers.

After being removed from the father's custody, see note 11, supra, the child was enrolled at the May Institute Residential School (May Center) in late September. When the child arrived, his medications were below therapeutic levels, and the May Center was concerned that they had not been administered properly prior to his placement. After removal, the mother's behavior initially improved, but she soon reverted to her old pattern of disrupting the child's services. On one occasion, she aggressively shouted department workers off her property. Her interactions with the May Center staff became so inappropriate that, by April, 2016, the center felt compelled to discontinue on-site visits due to safety concerns. Based on this type of behavior, multiple witnesses-credited by the judge-testified that the mother is a hindrance to the child's education and care.

Discussion. "In care and protection cases, the judge's subsidiary findings must be proved by a preponderance of the evidence and will only be disturbed if clearly erroneous." Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016). A subsidiary factual 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) (quotation omitted). "Taken together, these findings must then prove clearly and convincingly that the [parent is] currently unfit to provide for the welfare and best interests of [the child]." Care & Protection of Vick, supra (quotation omitted).

A. Findings of fact. The mother contends that two of the judge's subsidiary factual findings are unsupported by the evidence. Specifically, she disputes the findings that the child "had problems with self-care" when he arrived at the May Center, and that the child has made "tremendous progress" since his enrollment there. Neither finding is clearly erroneous.

The record indicates that both findings are supported by the evidence, including witness testimony explicitly credited by the judge. See Custody of Two Minors, 396 Mass. 610, 618 (1986) ("[T]he judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference"). The mother's argument amounts to a claim that the judge improperly weighed the evidence. See Adoption of Don, 435 Mass. 158, 166 (2001). Contrary to her contention, even "[w]here there are two permissible views of the evidence, the fact finder's choice between them cannot be clearly erroneous." Care & Protection of Olga, 57 Mass. App. Ct. 821, 824 n.3 (2003) (quotation omitted). Thus, there is no indication that a mistake was committed as to either of these findings, see Custody of Eleanor, supra, and we therefore must accept them. See Custody of Vick, supra.

B. Unfitness. The mother next contends that there is insufficient evidence to support the judge's ultimate finding of unfitness. We disagree. The judge's specific and detailed findings demonstrate, clearly and convincingly, that the mother is unfit and that the child's best interests will be served in the custody of the department.

A parent is considered unfit if they have "grievous shortcomings or handicaps that put the child's welfare much at hazard." Care & Protection of Thomasina, 75 Mass. App. Ct. 563, 576 (2009) (quotation omitted). This determination is highly fact specific, and "[t]he specialized needs of a particular child combined with the deficiencies of a parent's character, temperament, capacity, or conduct may clearly establish parental unfitness." Ibid. (quotation omitted). In this case, the record demonstrates that the mother is either unwilling or unable to provide for the child's specialized medical and educational needs.

It is well established that a parent's failure to obtain appropriate medical care for his or her child is a relevant factor in determining unfitness. See Adoption of Ramon, 41 Mass. App. Ct. 709, 717 (1996) ; Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). In this case, the mother's neglect of the child's medical needs put the child "much at hazard." Care & Protection of Thomasina, supra. Indeed, the record reflects that the mother refused to let the child be examined during a neurology appointment and stopped bringing him to medical appointments altogether when she did not get her way; continued to cancel appointments even after telling a doctor that the child was having more seizures; allowed the child to fall below therapeutic levels of his seizure medication; and declined to sign off on a neuropsychological evaluation without justification. Although the evidence does not establish that the mother's behavior ever caused a medical emergency, courts need not "wait for inevitable disaster to happen" to protect a child. Adoption of Katharine, 42 Mass. App. Ct. 25, 32 (1997).

This court has also explained that the failure to meet a child's educational needs is relevant to the unfitness calculus. See Care & Protection of Lillith, 61 Mass. App. Ct. 132, 135 (2004) (noting relevance of mother's failure to send child to school and her inability to understand negative effects of such failure on child). Here, although the child had an individualized education plan (IEP) indicating that he was capable of benefiting from an education, the mother's disruptions caused him to miss over a year's worth of school, thereby putting his developmental growth at risk. See ibid.

Additionally, apart from the medical and educational neglect, there are several other factors that support the judge's finding of present and future unfitness in this case. Those factors include the mother's repeated failure to comply with her service plan, see Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) ; her inability to work with professionals to face her considerable parenting challenges, see Care & Protection of Thomasina, supra at 575 n.22; her "[v]iolence of temper," Guardianship of a Minor, 1 Mass. App. Ct. 392, 396 (1973) ; and her criminal convictions, see Care & Protection of Frank, 409 Mass. 492, 495 (1991). Finally, the judge was also entitled to take into account the mother's undiagnosed mental health issues, her refusal to undergo a full mental health evaluation, and her refusal to engage in therapy. See generally Adoption of Carla, 416 Mass. 510, 519 (1993).

All of these factors, taken together, clearly and convincingly demonstrate that the mother is currently unfit to parent the child. Furthermore, the evidence that the child has been brought medically up-to-date since his removal, and that he has made tremendous progress at the May Center, establishes that his interests will be best served in the custody of the department going forward. ,

Judgment affirmed.

      The judge also found the father to be unavailable. He is not a party to this appeal.

      Following oral argument, the department submitted a letter pursuant to Mass.R.A.P. 16(l), as amended, 386 Mass. 1247 (1982), in which it represented that it is providing the mother an opportunity for visitation with the child on a twice-monthly basis.

      Although the judge found the mother unfit and adjudicated the child in need of care and protection, he also found that it is not in the child's best interests to terminate the mother's parental rights.

      During the investigation, the mother admitted that the child had been in several different schools since the age of three due to her concern with the services he was receiving, and that she was currently holding him out of school due to such concern. A review of the child's educational history shows that he has attended more than six schools since 2004 and, in that time, has missed a year of school in total without any valid justification.

      The judge found that the mother's criminal record "illustrates [her] erratic antagonist behavior." The mother had been charged with criminal harassment, harassing telephone calls, assault by means of a dangerous weapon, threatening to commit a crime, stalking, intimidation, malicious destruction of property, trespassing, disturbing school assembly, and three violations of active abuse prevention orders. She had numerous abuse prevention orders filed against her and had violated those orders at least three times.

      The judge found that since the inception of the department's involvement, the mother presented with inappropriate and aggressive behavior, used vulgar language, made racist remarks, and was unable to curb this behavior around the child. The mother also directed her inappropriate behavior toward the child, referring to him as a "wigger" among other derogatory names.

      The judge found that in addition to the mother's verbal abuse of medical staff, she was "willing to allow [the child's] medical needs to go unmet if she does not get her way."

      The mother never complied with the requirement that she seek a psychological evaluation.

      Despite the GAL's efforts to schedule the neuropsychological evaluation, the mother refused to "sign off" on it. Consequently, the child did not receive an updated evaluation until after his removal from the mother's custody. Further, although the mother was offered ten private school placements, she rejected each one, expressing unrealistic expectations in the process. However, "[a]t some point [the mother] brought [the child] to school for specialized service only."

      At the time of his removal, the child was placed in the physical custody of the father. However, the child was removed from the father's care on or about September 22, 2015, when it was discovered that he had conspired with the mother, from the day he received custody, to allow the child to stay at the mother's home.

      In March and April of 2015, the mother refused to schedule home visits with department social workers. Additionally, at various times, she sent inappropriate electronic mail messages (e-mails) and made inappropriate telephone calls to both department workers and service providers. The judge found that her behavior caused school staff to feel unsafe.

      One of the child's former pediatricians stated that, based on the number of prescription refills requested by the mother, the child was not regularly provided with his seizure medication. Further, at the time of enrollment, the child was behind on his medical appointments, as there had been a lack of regular check-ups with his pediatrician and neurologist. Indeed, one of the child's doctors stated in July, 2015, that the child had not seen his pediatrician since October, 2014, or his neurologist since November, 2014. This doctor also explained that the mother had continued to cancel appointments even after calling to tell him that the child was experiencing more seizures than usual.

      The mother had interacted inappropriately with the May Center staff on many occasions prior to April, 2016, but the final decision to discontinue on-site visits was prompted by an incident in which she made obscene gestures at a staff member, yelled at her, and blocked her from getting into an elevator with the child.

      Both the GAL and the mother's contact person at the May Center agreed that the mother's behavior was a hindrance to the child's care and education.

      As to the first finding, the director of family services at the May Center testified that upon arrival the child "had a lot of problems with his adaptive skills," was unable to feed himself with utensils, and required substantial assistance in the bathroom, which has since decreased. As to the second finding, both the director of family services and the GAL testified that the child had made progress in numerous areas.

      The mother argues that, while the child was being held out of school, he was actually receiving equivalent educational benefits at home. However, we find that assertion unpersuasive for two reasons: (1) she provides no evidence to support it; and (2) it directly conflicts with the judge's findings on self-care and progress at the May Center, which, as discussed above, is supported by the record.

      The mother also argues that there was a "functional application" of G. L. c. 76, § 1, here that excused the child's absence from school. See G. L. c. 76, § 1 ("attendance shall not be required of a child whose physical or mental condition" would "render attendance inexpedient or impracticable subject to the provisions of section three of chapter seventy-one B"). We discern no mention of this argument below and, therefore, it is waived. See Adoption of Mary, 414 Mass. 705, 712 (1993). Even assuming, arguendo, that this contention is properly before us, the mother fails to cite any evidence that the child's condition renders school attendance "inexpedient or impracticable."

      To the extent that the mother makes other arguments that we do not address, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    ADOPTION OF ORISSA (and a companion case ).
    17-P-1487
    Appeals Court of Massachusetts.
    Entered: May 14, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Adoption of Amy. The children's names are pseudonyms.

   Following a trial, a Juvenile Court judge concluded that the father was unfit to parent his children, and that termination of his parental rights was in the children's best interests. In this appeal, the father principally claims that (1) the Department of Children and Families (DCF) failed to establish the father's unfitness by clear and convincing evidence, and (2) DCF did not provide him with adequate assistance to improve his parenting skills. We affirm.

Background. We summarize the judge's subsidiary findings of fact and conclusions of law, which "are both specific and detailed, demonstrating, as we require, that close attention was given to the evidence." Adoption of Don, 435 Mass. 158, 165 (2001).

The mother suffered from cognitive impairment and had previously been treated for posttraumatic stress disorder and depression. Specifically, the judge found that the mother "[functioned] in the [m]ild [m]ental [r]etardation range of intelligence." In early 2011, the mother, the father, and their infant child (Orissa) moved from New Jersey to Springfield after the father was released from jail. In April, 2012, the family entered a Springfield homeless shelter; a month later, Orissa and the mother transferred to a shelter in Attleboro. The father did not join them, as he had no identification. After the shelter staff observed that the mother had no income, health insurance, or identification (which left her unable to obtain Massachusetts benefits), a report alleging neglect of Orissa was filed pursuant to G. L. c. 119, § 51A (51A report), initiating DCF's involvement with the family; the 51A report was "screened-in." See 110 Code Mass. Regs. § 4.21 (2009).

The mother provided the father's first name and telephone number to DCF, but explained that he was not present. She also reported she was pregnant. In July, 2012, when DCF attempted to conduct an assessment of the family, they learned that the mother had left the Attleboro shelter with Orissa. The father subsequently contacted DCF and reported that they were living with him in Springfield, where he had obtained housing. An Attleboro DCF social worker created service plans for both parents, but was unable to contact the parents in Springfield.

One month after the mother and Orissa returned to Springfield, the father moved to Vermont. His stated intention was to find work to provide for his family, who remained in Springfield. The father had no stable housing in Vermont. He lived with friends, in shelters, or in motels. The father was unable to find steady employment. Meanwhile, the mother's and Orissa's precarious situation continued. They had no income, transportation, or stable housing. In November, 2012, these circumstances prompted a second 51A report to DCF, which was also screened-in.

The mother gave birth to Amy in December, 2012. Amy was born with congenital syphilis, a narrowing of the larynx, and an allergic reflux disorder. The father was not present at the birth. Two days later, DCF received another 51A report alleging neglect of both children, which was also screened-in. DCF then filed a petition to terminate the parents' rights, and was granted temporary custody of the children.

DCF created another service plan for the father. The plan required the father to (1) obtain identification, (2) obtain stable housing for the family, (3) work toward financial stability, (4) establish his paternity, and (5) regularly attend parent-child visits. The father, who had returned to Vermont, did not sign this service plan or meet regularly with his social worker. The father was homeless in Vermont, and only once participated in DCF's family assessment, missing or cancelling other appointments. He visited the children only once (in March, 2013) after they entered DCF care.

In May, 2013, the father was incarcerated in Vermont for possession of cocaine. After his release, he did not contact DCF to inquire about the children. In May, 2014, the father was arrested again in Vermont on charges of conspiracy to distribute cocaine and heroin. Ultimately, he pleaded guilty and was sentenced to ninety months in Federal prison. While incarcerated, the father did not contact DCF, even through his attorney, to whom DCF had provided all materials relevant to the ongoing case involving the family.

Discussion. 1. Termination of parental rights. "In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona, 459 Mass. 53, 59 (2011). "[T]he critical question is whether the natural parent[ ] [is] currently fit to further the welfare and best interests of the child[ren]." Bezio v. Patenaude, 381 Mass. 563, 576 (1980). "We give substantial deference to a judge's decision ... 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, supra.

The judge summarized her findings and conclusions as to the father as follows:

"[The] [f]ather, who is [the m]other's primary support, left the state while [the m]other was pregnant with the younger child, ... without a means to support or provide for herself and the older child. [He] has been in and out of jail over the course of the case, and is currently held in a [F]ederal prison on a term which will likely last at least 3 more years. [The f]ather ha[s not] maintained a relationship with the children, as several years have passed since [he] has seen [them]. The younger of the children has significant medical, developmental, and educational needs. Both children need a safe, stable, nurturing environment to grow up in. Neither parent is able to provide that."

We discern no abuse of discretion in her conclusion that this evidence clearly and convincingly demonstrated the father's parental unfitness. From the time the mother and Orissa first resided in a homeless shelter, the father was effectively absent from their lives. He provided no assistance while Orissa and the pregnant mother-whose "limitations" the judge found to be "obvious to all who interacted with her"-lived in a homeless shelter in Attleboro without identification, health care, insurance, or income. See G. L. c. 210, § 3(c )(vi, viii) (judge should consider unexcused failure to provide care and lack of effort in remedying conditions creating risk of harm to child as evidence of unfitness).

Once the father obtained temporary housing for his family in Springfield, he again left the mother alone to care for Orissa. While he was living with friends in Vermont, Orissa and the mother moved between homes (including one stay with an aunt described as a "functional crack addict" and without income or basic necessities. The father's inability to provide the children with some sort of financial stability, see Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 n.19 (1987), or a stable home life, Adoption of Quentin, 424 Mass. 882, 887 (1997), support the judge's conclusion that the father was unfit to parent the children.

The judge also properly found that the father's most recent felony convictions were likely to continue to deprive the children of a stable home. See G. L. c. 210, § 3(c )(xiii) ; Adoption of Nicole, 40 Mass. App. Ct. 259, 260-261 (1996). Moreover, the judge was entitled to conclude that the father's drug and weapons convictions constituted a pattern of illicit behavior demonstrating his unfitness to parent his children. See Care & Protection of Frank, 409 Mass. 492, 494-495 (1991). As to both the father's repeated criminal offenses and ongoing failure to support the children, the judge was "permitted to assess prognostic evidence derived from prior patterns of parental neglect or misconduct in determining future fitness and the likelihood of harm to the [children]." Adoption of Ilona, 459 Mass. at 60, quoting from Custody of Two Minors, 396 Mass. 610, 621 (1986).

Finally, the judge was justified in concluding that the father's failure to engage in services offered by DCF demonstrated his unfitness. See Care & Protection of Vieri, 92 Mass. App. Ct. 402, 405 (2017). Simply put, the judge acted within her broad discretion in concluding that the evidence clearly and convincingly demonstrated the father's unfitness.

2. Adequacy of DCF services. The father claims that termination of his parental rights was error because DCF failed to "compl[y] with its duty to make 'reasonable efforts ... to prevent or eliminate the need for removal from the home.' " Adoption of Ilona, 459 Mass. at 61, quoting from G. L. c. 119, § 29C. Specifically, the father cites DCF's failure to contact him directly while imprisoned to arrange visits with the children. We are not persuaded. DCF's duty "was contingent upon [the father's] own obligation to fulfill various parental responsibilities, including seeking and utilizing appropriate services and maintaining regular contact with [DCF] and [the children]." Adoption of Serge, 52 Mass. App. Ct. 1, 9 (2001). Even prior to his incarceration, the father failed to fulfill his own parental obligations. When DCF created service plans for the father, he did not acknowledge or adhere to them. When DCF attempted to meet with the father, he repeatedly cancelled or missed those meetings. He saw the children infrequently and did not support them while he was away. On this record, we discern no failure by DCF warranting reversal.

Decrees affirmed.

      The mother, whose parental rights were also terminated after trial, is not a party to this appeal.

      Despite the father's claims, we discern no error in the judge's findings and conclusions summarized here, as they are supported by "at least a fair preponderance of evidence." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012).

      The father's adult criminal history to that point included felony convictions for theft and unlawful possession of a handgun, both resulting in periods of incarceration.

      With one exception, we are not persuaded by the father's claims of error with the judge's factual findings. We agree with DCF that these complaints largely relate to how the judge weighed the evidence. The judge's weighing of the evidence and her credibility determinations are entitled to deference and we see no reason to disturb them here. See Adoption of Elena, 446 Mass. 24, 31 (2006). While the judge did err in finding that the father had the responsibility to inform DCF of how to reach him in Federal prison, that error was harmless in light of the ample other evidence of unfitness.

      "Other points, relied on by the [father] but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    COMMONWEALTH v. Michael M. BROWN.
    17-P-135
    Appeals Court of Massachusetts.
    Entered: May 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On March 9, 2016, the defendant admitted to sufficient facts on charges of possession of an electric stun gun, see G. L. c. 140, § 131J, and possession with intent to distribute cocaine, see G. L. c. 94C, § 32A ; upon his admission, both charges were continued without a finding (CWOF) and the defendant was placed on probation. A few months later, the defendant committed new offenses and a violation of probation warrant issued for the new offenses. The defendant then filed a motion to vacate his guilty plea, which was denied by a judge of the Boston Municipal Court. On August 15, 2016, the same judge found the defendant in violation of his probation on both underlying charges, revoked his probation, and sentenced the defendant to a six-month term only on the conviction for possession with intent to distribute cocaine. The defendant appeals both from the denial of his motion to vacate his admission and from the finding that he violated his probation. We affirm all but the conviction of possession of an electric stun gun, which must be vacated.

"A postsentence motion to withdraw a plea is treated as a motion for a new trial." Commonwealth v. Conaghan, 433 Mass. 105, 106 (2000). We review a judge's decision denying a motion for a new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016) (quotations omitted).

On appeal, the defendant does not claim that he did not have knowledge of the elements of the charges against him or the procedural protections waived by admitting to sufficient facts. See Commonwealth v. Cotto, 471 Mass. 97, 105 (2015). Instead, the defendant argues that he did not intelligently tender his admission because he did not know that Caetano v. Massachusetts, 136 S.Ct. 1027 (2016), a case addressing the constitutionality of the stun gun statute, G. L. c. 140, § 131J, was pending before the United States Supreme Court. In rejecting the defendant's assertion that he would not have entered an admission to sufficient facts on the charges of possession of a stun gun and possession of cocaine with intent to distribute had he known that the stun gun statute was under review by the Supreme Court, the motion judge did not abuse his discretion.

"[A]bsent misrepresentation or other impermissible conduct by state agents ... a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise." Brady v. United States, 397 U.S. 742, 757 (1970). Furthermore, even if the defendant's averments-that had he known about the Caetano appeal he would have asked for a continuance of trial, moved to dismiss the charges against him, or moved to suppress the cocaine seized-were credited by the motion judge, the defendant did not meet his burden of showing a reasonable probability that it would have been rational for him to proceed to trial, since the evidence supporting the cocaine charge was extremely strong and the resulting CWOF with probation on that charge was a very favorable disposition as a result of the plea. See Commonwealth v. Roberts, 472 Mass. 355, 365 (2015). As the defendant's plea counsel observes in his affidavit, a continuance of the trial on the stun gun statute pending Supreme Court review would only have given the Commonwealth time to obtain a certificate of drug analysis, which would have further improved the case against the defendant on the cocaine possession charge at a later trial date.

We likewise reject the defendant's contention that the motion judge abused his discretion in finding the defendant in violation of his probation. "Any conduct by a person on probation [that] constitutes a violation of any of the conditions of his probation may form the basis for the revocation of that probation." Commonwealth v. Durling, 407 Mass. 108, 112 (1990), quoting from Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976). A probation revocation hearing does not carry with it "the 'full panoply of constitutional protections applicable at a criminal trial.' " Commonwealth v. Bukin, 467 Mass. 516, 520 (2014), quoting from Durling, supra at 112-113. Hearsay evidence is admissible and can form the sole basis for a revocation if it has "substantial indicia of reliability." Durling, supra at 118. The burden is on the Commonwealth to prove a violation by a preponderance of the evidence. See Bukin, supra at 520.

In finding the defendant in violation of his probation, the motion judge looked to the police incident report, which he found to be substantially reliable. The report was based on the personal knowledge and direct observations of the arresting officers, drafted the same night as the defendant's arrest. The report details the basis for the officers' stop of the vehicle, where the vehicle was stopped, where the defendant was sitting, why they ordered the driver and defendant out of the car, the interaction and conversations between the officers and the defendant and driver, that the defendant had been sitting on the bag that contained the firearm, and that the defendant made an admission that the firearm belonged to him. The judge also heard testimony from the probation officer that, based on the defendant's supervising probation officer's case notes, the defendant had failed to pay the required monthly probation fees or maintain employment. Under these circumstances, the judge permissibly relied on the evidence to find the defendant in violation of his probation.

The defendant's conviction for possession of an electric stun gun is vacated pursuant to Ramirez v. Commonwealth, 479 Mass. 331 (2018), the finding is set aside, and judgment is to enter for the defendant on that count. The remaining judgment is affirmed. The order denying the motion for new trial is affirmed. The order revoking probation is affirmed.

So ordered.

affirmed in part; vacated in part.

      The defendant was arrested on May 27, 2016, and charged on May 31, 2016, with unlawfully carrying a firearm and unlawful possession of ammunition. See G. L. c. 269, §§ 10(h )(1), 10(n ), 10G(a).

      The judge originally sentenced the defendant to concurrent six-month terms in the house of correction, but later that day amended the sentence to apply only to the conviction for possession with intent to distribute cocaine. On the charge of unlawful possession of a stun gun, a guilty finding was entered and probation was terminated.

      In Commonwealth v. Caetano, 470 Mass. 774 (2015), the Supreme Judicial Court held that § 131J did not violate the Second Amendment to the United States Constitution right to bear arms, as interpreted by District of Columbia v. Heller, 554 U.S. 570 (2008). In Caetano v. Massachusetts, 136 S.Ct. 1027 (2016), a decision issued twelve days after the defendant entered his guilty pleas, the Supreme Court rejected the several rationales offered by the Supreme Judicial Court, vacated the judgment, and remanded the case for further proceedings. Following the remand, Caetano was dismissed as moot after it was resolved to the parties' mutual satisfaction. On April 17, 2018, however, the Supreme Judicial Court released its opinion in Ramirez v. Commonwealth, 479 Mass. 331 (2018), declaring that § 131J is unconstitutional.

      The defendant was facing up to two and one-half years in a house of correction (or up to ten years in State prison if indicted) for possession of cocaine with the intent to distribute. See G. L. c. 94C, § 32A(a ). The police report indicates that the case against the defendant was strong given the number of bags of cocaine recovered from him, his possession of a large amount of currency, and the fact that his cellular telephone was ringing nonstop during booking. By admitting to sufficient facts, the defendant not only avoided jail time, he had the potential to avoid a guilty finding if he successfully completed probation. By admitting to both charges, it also permitted the defendant to receive concurrent probationary sentences.

      Moreover, the defendant has put forth no evidence to suggest that a motion to suppress the cocaine would have been successful. The constitutionality of § 131J would have no bearing on the arrest of the defendant and resulting search, which were proper as the officers were acting in accordance with the law as it existed at that time. See Commonwealth v. Miller, 78 Mass. App. Ct. 860, 864-865 (2011).

      Such indicia include whether a hearsay statement is factually detailed, based on personal knowledge and direct observation, made close in time to the events to which it pertains, provided under circumstances that support the veracity of the source, and provided by a disinterested witness. See Commonwealth v. Negron, 441 Mass. 685, 691 (2004).