text:
    J.M. v. J.W. (and a companion case ).
    17-P-1462 17-P-1553
    Appeals Court of Massachusetts.
    Entered: October 31, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      J.M. vs. C.W.

   On appeal, the defendants, J.W. and C.W., assert that a judge of the District Court erred in entering harassment prevention orders against them pursuant to G. L. c. 258E (258E orders). They argue that the plaintiff failed to establish three or more acts of harassment, as required by G. L. c. 258E, § 1. We agree and vacate both orders.

Background. The plaintiff and the defendants, a married couple, have been neighbors since 1990. On May 8, 2017, the plaintiff filed complaints for protection from harassment against both defendants. Following an evidentiary hearing on May 30, 2017, the judge issued the 258E orders.

The plaintiff's affidavits filed in support of her complaints described approximately a dozen incidents between 2013 and 2017. These include allegations that in 2013, C.W. threw pennies into the plaintiff's yard; in 2014, C.W. yelled at the plaintiff that she needed to paint her house; in 2015, the defendants threw yard waste onto the plaintiff's property, J.W. threw sticks and branches and kicked a rock onto the plaintiff's property, and, J.W., when C.W. was present, threw a rock onto the plaintiff's property and took mulch from her property; in 2016, C.W. threw yard waste onto the plaintiff's property, and J.W. stepped onto the plaintiff's property and threw sticks, rocks, and food debris onto the plaintiff's property; and in 2017, J.W. threw garbage onto the plaintiff's property and, J.W., when C.W. was present, threw something onto the plaintiff's property. At the hearing, the plaintiff reiterated the allegations set forth in her affidavits. She also testified that she was upset by these events, and that she felt "under attack," "unsafe," "afraid," "intimidated," "uncomfortable," and "harassed." The plaintiff became aware of all but one of these incidents by reviewing videos from surveillance cameras she had installed at her home.

Discussion. On review of a 258E order, "we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant committed '[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property.' " A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015), quoting G. L. c. 258E, § 1. "The plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended, defined by G. L. c. 258E, § 1, as being 'characterized by cruelty, hostility or revenge,' and that each act was intended by the defendant to place the plaintiff in 'fear of physical harm or fear of physical damage to property.' " A.T., supra, quoting O'Brien v. Borowski, 461 Mass. 415, 427 (2012).

1. Plaintiff's fear. The standard for assessing the plaintiff's fear is a subjective one. See O'Brien, 461 Mass. at 427. "[F]ear is narrowly defined as fear of physical harm or fear of physical damage to property." Van Liew v. Stansfield, 474 Mass. 31, 37-38 (2016). Generalized apprehension, nervousness, feeling aggravated or hassled do not rise to the requisite level of fear. Cf. Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998).

The plaintiff testified that she felt "under attack," "unsafe," and "afraid." In addition, she was fearful that the defendants could retaliate against her for filing a civil lawsuit against them in the future. She concedes that there were no physical or verbal aggressions aside from being yelled at to paint her home. We assume without deciding that the plaintiff's evidence was sufficient to establish fear.

2. Defendants' intent to cause fear, intimidation, abuse, or property damage. An essential element of civil harassment is intent. Here, the plaintiff failed to prove, by a preponderance of the evidence, that the defendants intended to cause fear, intimidation, abuse, or property damage.

a. Fear. With the exception of one incident, all of the defendants' conduct occurred outside of the plaintiff's presence and without the defendants' knowledge or expectation that she would become aware of these activities. But for the surveillance videos, the plaintiff would likely not have learned about the actions of the defendants. Moreover, the plaintiff concedes that there were no physical aggressions made by the defendants. There is no evidence that the defendants intended to cause the plaintiff fear.

b. Intimidation. General Laws c. 258E does not define intimidation, and it has thus far been held to be a form of fear. See C.E.R. v. P.C., 91 Mass. App. Ct. 124, 128 (2017). There is no evidence in this record that the defendants intended to intimidate the plaintiff, and the plaintiff's statement that she felt "intimidated" does not, by itself, prove that the defendants intended to intimidate her.

c. Abuse. Abuse is defined as "attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm." G. L. c. 258E, § 1. There is no evidence, and the plaintiff does not contend, that either defendant intended to cause or did cause physical harm to the plaintiff. Nor is there any evidence that the defendants intended to place the plaintiff in fear of imminent serious harm. Rather, the plaintiff testified that there were no physical aggressions against her.

d. Property damage. Although small amounts of debris and yard waste were thrown onto the plaintiff's property, the videos show the defendants throwing the items toward, but not directly at, the plaintiff's house. The videos also do not depict force sufficient to demonstrate that the defendants intended the items to hit the house or cause damage to the plaintiff's property.

3. Malicious conduct. Malicious conduct is defined as acts which display "cruelty, hostility or revenge." G. L. c. 258E, § 1. Because the statute does not define these terms, "we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose." Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977). "We derive [these] meanings from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions."Id.

Here, the defendants' actions, while callow, did not display cruelty. The evidence did not establish that the defendants intended to endanger the plaintiff's person or health or inflict pain or suffering. See Commonwealth v. Daly, 90 Mass. App. Ct. 48, 51 (2016) (construing "cruelty" in animal cruelty statute, G. L. c. 272, § 77, as requiring "infliction of severe or unnecessary pain"). See also Flavell v. Flavell, 324 Mass. 362, 364 (1949) (construing "cruelty" in divorce statute, G. L. [Ter. Ed.] c. 208, § 1, as "creat[ing] danger to the person or health"); Webster's Third New International Dictionary 546 (1993) (defining "cruelty" as "disposition to inflict pain or suffering"). The evidence also was insufficient to establish revenge. See Webster's Third New International Dictionary 1942 (1993) (defining "revenge" as "to inflict harm or injury in return for ... an injury or insult").

Further, we cannot say that the defendants' actions display the level of "hostility" required by the statute. Definitions of "hostility" and "hostile" range from "resistance in thought or principle," "opposition," "marked by ... unfriendliness," and "not hospitable," to "antagonism," "animosity," and "marked by malevolence and a desire to injure." Webster's Third New International Dictionary 1094 (1993). As these definitions vary considerably, we look to the Legislature's intent to determine the appropriate meaning. See Commonwealth v. Escobar, 479 Mass. 225, 228 (2018) ("term with multiple meanings may have only one within context of statute"). See also Camargo's Case, 479 Mass. 492, 497-498 (2018) ("For questions of statutory interpretation, we must consider the intent of the Legislature ascertained from all the words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated" [quotations and citations omitted] ). Given that the Legislature intended to "confine the meaning of harassment to either fighting words or 'true threats,' " O'Brien, 461 Mass. at 425, we think the hostility required by the statute must demonstrate malevolence or an intent to injure. Although the defendants' actions commonly would be considered to be antagonistic, unfriendly, and inhospitable, they do not display the requisite level of hostility. See C.E.R., 91 Mass. App. Ct. at 131-132 ("boorish and no doubt upsetting [conduct] ... [does] not constitute 'harassment' within the meaning of c. 258E"). Contrast A.T., 88 Mass. App. Ct. at 538 (defendant's conduct was malicious; his statements that he was " 'fucking with [the plaintiff]' because she ruined his life" and that he wanted to punch the plaintiff because "she ruined his life" supported conclusion defendant was motivated by hostility).

4. Conduct aimed at a specific person. General Laws c. 258E, § 1, requires that the acts of harassment be "aimed at a specific person." DeMayo v. Quinn, 87 Mass. App. Ct. 115, 115 (2015). Here, as all but one incident occurred outside the presence of the plaintiff, and the plaintiff's affidavit states that the defendants' actions were directed at her and her son, the plaintiff did not establish that each act was specifically aimed at her.

Conclusion. For the foregoing reasons, the plaintiff has failed to establish that there were three or more acts of harassment. Most of the items that the defendants threw onto the plaintiff's property consisted of sticks, small rocks, and yard waste. These items were not thrown at the plaintiff or directly at her house, but rather into her yard. Moreover, these acts, while childish, did not cause damage to the plaintiff's property.

Further, C.W.'s statement to the plaintiff that she needed to paint her house, must fall outside of a constitutionally protected category to be a valid basis for the 258E order against her. See Commonwealth v. Johnson, 470 Mass. 300, 311 (2014). This statement did not constitute a true threat or fighting words. Rather, it constituted protected speech and therefore cannot serve as the basis of the 258E order against C.W. See O'Brien, 461 Mass. at 422-425.

The c. 258E orders entered on May 30, 2017, against J.W. and C.W. are vacated.

So ordered.

Vacated.

      The cases were consolidated for hearing in this court.

      The orders expired on February 28, 2018.

      The plaintiff also contends that C.W. asked her about her church and her belief in God, and that C.W. called her a "bitch." As none of this speech amounts to "fighting words" or "true threats," it cannot be used as a requisite act to support the order against C.W. See O'Brien v. Borowski, 461 Mass. 415, 422-424 (2012).

      These videos were played and entered in evidence at the hearing.

      As we assume that the plaintiff experienced fear, we do not address whether she experienced intimidation or abuse.

      The plaintiff testified that prior to 2013 a stick hurled at her house broke a window, and that when she looked outside, she saw only C.W., but she (the plaintiff) did not see C.W. throw the stick.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Tony C. BABCOCK.
    17-P-813
    Appeals Court of Massachusetts.
    Entered: October 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury convicted the defendant, Tony C. Babcock, of armed assault with intent to murder and aggravated assault and battery by means of a dangerous weapon. The defendant filed a motion for new trial, based on ineffective assistance of counsel, which was denied by the trial judge after an evidentiary hearing. The defendant's appeal from the ruling on his motion for new trial was consolidated with his direct appeal, in which he claims error in the prosecutor's closing argument. We affirm the order denying the defendant's motion for new trial as well as the defendant's convictions.

Background. We recite the facts as the jury could have found them at trial, reserving other facts for later discussion. The events giving rise to the defendant's charges took place on October 23, 2013, in the area of Second Street in Pittsfield. The defendant and the victim, Casey Trumbull, knew each other, as they had been dating twin sisters during the time of the incident that resulted in the charges against the defendant. By the time of the incident in October, Trumbull and his girl friend were having "relationship problems," and the girl friend was residing with her sister and the defendant at 40 Second Street. On the evening of October 23, 2013, Trumbull and his girl friend were together and arguing outside of the defendant's apartment. The defendant came out of the apartment and punched Trumbull numerous times. To avoid his attacker, Trumbull ran down Second Street and hid in the back yard of 80 Second Street. Trumbull dropped his backpack when he was running from the defendant, and, after hiding a few minutes, he went to the street and picked up his backpack. The defendant saw Trumbull retrieving his backpack and chased Trumbull into the back yard. As Trumbull attempted to jump over a fence, the defendant stabbed Trumbull multiple times. Trumbull was hospitalized for four to five days and treated for stab wounds to his stomach, chest, leg, and back.

Discussion. 1. Closing argument. The defendant makes both preserved and unpreserved claims that the prosecutor's closing argument caused prejudicial error or a miscarriage of justice requiring a reversal of his convictions. "Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Felder, 455 Mass. 359, 368 (2009).

For the first time on appeal, the defendant contends the prosecutor's reference in his closing argument to the medical records was error, as it improperly brought to the jury's attention prior bad acts of the defendant. We review unpreserved claims of error to determine whether there was error, and, if so, whether the error created "a substantial risk of a miscarriage of justice." Commonwealth v. Robinson, 444 Mass. 102, 105 (2005).

Prior to trial, the defendant filed a motion in limine to keep out evidence of his prior bad acts. At the hearing on the motion the prosecutor agreed not to elicit such information. An additional motion in limine filed by the defendant sought to exclude unspecified portions of Trumbull's medical records. Without ruling on the motion, the judge requested that the attorneys work together to determine whether there were any disputes about what portions of the records should be admitted, and proposed that if there were any disagreements, he would address them at a later time. The defendant agreed to this request and did not seek any further rulings on the admissibility of the medical records. The defendant's closing argument made repeated use of the medical records to attack Trumbull's credibility. Specifically, the defendant pointed out references in the medical record where Trumbull failed to identify the defendant as his attacker. The prosecutor's closing argument referenced the medical records only in response to defense counsel's argument that Trumbull's identification of the defendant as his attacker was not reliable. The portion of the record cited by the prosecutor recounts Trumbull's statement of being stabbed by the defendant. The prosecutor did not refer to prior bad acts or direct the jury to look for reports of prior bad acts.

A prosecutor is permitted to "make a fair response to an attack on the credibility of a government witness." Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). In his closing, defense counsel argued that Trumbull's testimony was not reliable. There was no error in the prosecutor's challenged comment, as it was a legitimate attempt to defend Trumbull's credibility.

Additionally, at the completion of the prosecutor's closing argument, defense counsel objected to a portion of the argument, claiming the prosecutor had mischaracterized the defendant's testimony. We review this claim for prejudicial error. Commonwealth v. Garcia, 75 Mass. App. Ct. 901, 901 (2009).

Defense counsel objected to the prosecutor's characterization of the defendant's testimony as a statement that the defendant did not see any evidence of the stabbing. The defendant contends that the prosecutor's reference to the defendant's statement on cross-examination that he had "never seen any physical evidence that [Trumbull] was stabbed anywhere" improperly suggested an inference that the defendant was "so dishonest that he had flat out denied that Trumbull had even been stabbed."

Although prosecutors are not permitted to misstate the evidence or refer to facts not in evidence during closing arguments, Commonwealth v. Kozec, 399 Mass. 514, 516 (1987), they are "entitled to marshal the evidence and suggest inferences that the jury may draw from it." Commonwealth v. Roy, 464 Mass. 818, 829 (2013), quoting Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). Here, the prosecutor did just that. The defendant testified at trial that he had seen no evidence of the stabbing. There was no error in the prosecutor's drawing the jurors' attention to the defendant's testimony and arguing that the defendant was denying that Trumbull had been stabbed, as it was a fair inference from the evidence. See Commonwealth v. Harris, 468 Mass. 429, 454 (2014). In addition, the judge instructed the jury that closing arguments by counsel are not evidence. We conclude that there was no error, let alone a prejudicial error.

2. Motion for new trial. The defendant appeals from the denial of his motion for new trial, repeating the grounds on which he sought relief in the trial court. The defendant contends that his trial counsel provided ineffective assistance by (a) failing to adequately investigate his primary defense, namely, that Trumbull's inebriation affected his "ability to accurately perceive and recall the stabbing," and failing to present evidence at trial thereon; and (b) inadequately implementing his secondary strategy of casting doubt on the DNA evidence. Accordingly, the defendant argues, the judge abused his discretion in denying the motion for new trial.

The decision on a motion for new trial is left largely to the sound discretion of the judge, see Commonwealth v. Moore, 408 Mass. 117, 125 (1990), and is "granted only in extraordinary circumstances." Commonwealth v. Comita, 441 Mass. 86, 93 (2004). "Reversal for abuse of discretion is particularly rare where[, as here,] the judge acting on the motion was also the trial judge." Commonwealth v. Schand, 420 Mass. 783, 787 (1995). Where a motion for new trial is based on ineffective assistance of counsel, the defendant must show that the behavior of counsel fell below that of "an ordinary fallible lawyer," and that such failing "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

a. We agree with the judge's ruling that the defendant's trial counsel was not ineffective in investigating the defense that Trumbull's use of drugs and alcohol affected his ability to recall the events surrounding the stabbing. The judge found that defense counsel had in fact investigated the defense by retaining and consulting with an expert concerning the effects of drugs and alcohol on an individual's ability to recall. The defendant's expert advised defense counsel that the prosecution's expert witness could provide information regarding the impact of drugs and alcohol on Trumbull's ability to accurately recall the stabbing. The defendant's trial counsel presented that defense to the jury fully and fairly, through cross-examination of witnesses for the prosecution, including Trumbull, use of the medical records, and in argument. On this record there has been no showing that counsel's alleged failure to investigate his primary defense was behavior that fell below that of an ordinary, fallible lawyer. Nor did it deprive the defendant of a substantial defense.

b. The defendant also maintains that defense counsel was ineffective in executing his strategy of casting doubt on the DNA and blood evidence by failing to exclude evidence in the social worker's report of prior bad acts, by eliciting DNA evidence that otherwise would not have come in, and by failing to educate the jury that food substances could trigger false positive results on certain blood tests.

Here, the judge determined that trial counsel's failure to object to the prior bad acts evidence in the social worker's report was conduct that fell below the performance prong of Saferian, 366 Mass. at 96. The judge then evaluated the evidence and found that it was not prejudicial to the defendant, as it was cumulative of other properly admitted evidence. See Commonwealth v. Quincy Q., 434 Mass. 859, 869 (2001) ("the admission of inadmissible hearsay will not constitute prejudicial error if it is merely cumulative of other properly admitted evidence"). We discern no error in the judge's conclusion that the failure to object to the introduction of cumulative or nonprejudicial evidence did not constitute ineffective assistance. See Commonwealth v. Mattos, 49 Mass. App. Ct. 218, 225-226 (2000).

Finally, the defendant argues that counsel provided ineffective assistance by eliciting evidence that the DNA stain on the defendant's sweatshirt contained human blood, and by failing to educate the jury that food products could provide false positives indicating the presence of human blood. We agree with the judge that defense counsel was not ineffective in his attempts to undermine the blood and DNA evidence. The judge found that counsel's attempt to impeach the DNA expert was reasonable. See Commonwealth v. Knight, 437 Mass. 487, 503 (2002) ("The fact that the examination of any witness may not have been perfect is not the standard we use to evaluate the effectiveness of counsel").

Even if we assume that defense counsel was manifestly unreasonable in failing to educate the jury on the potential for a false positive test result indicating the presence of human blood, there was no prejudice to the defendant. The judge found that since evidence was presented on direct examination that the sweatshirt stain was of a human origin based on testimony that the sweatshirt stain contained DNA profiles consistent with both Trumbull and the defendant, counsel's failure to elicit the potential for a false positive did not prejudice the defendant. See Saferian, 366 Mass. at 96.

For the reasons stated above, we discern no error of law or abuse of discretion in the denial of the motion for new trial.

Judgments affirmed.

Order denying motion for new trial affirmed.

      At the hearing on the motion in limine, the defendant agreed with the prosecutor's resolution to limit testimony to "they [Trumbull and the defendant] don't like each other and had physical altercations."

      The defendant did not object to the introduction of the medical records as an exhibit.

      Defense counsel's decision not to present his own expert was not manifestly unreasonable. Compare Commonwealth v. White, 409 Mass. 266, 273-275 (1991). Tactical decisions of counsel, such as whether to call a witness, amount to ineffective assistance only if they were "manifestly unreasonable when made." Commonwealth v. Zagrodny, 443 Mass. 93, 102 (2004), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998). The test of ineffectiveness "is not to be made with the advantage of hindsight," Commonwealth v. Drumgold, 423 Mass. 230, 262 (1996), but with due deference to the reasoned strategic decisions of defense counsel.

      Defense counsel's affidavit in support of the new trial motion indicates that he had no strategic reason for failing to pursue this evidence. Although the judge did not make a finding that this was unreasonable, he did find that counsel's failure to bring this evidence forward did not prejudice the defendant.


text:
    COMMONWEALTH v. Shawn B. LEGEYT.
    17-P-1541
    Appeals Court of Massachusetts.
    Entered: October 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant was convicted of assault and battery causing serious bodily injury, G. L. c. 265, § 13A (b ). On appeal, the defendant claims that (1) the admission in evidence that he received full Miranda warnings was error which created a substantial risk of a miscarriage of justice, and (2) the denial of his pretrial motion to sever the offenses for trial was an abuse of discretion. Discerning no abuse of discretion or other error of law, we affirm.

Background. We summarize the relevant facts and procedural background. On April 20, 2016, at approximately 3 A . M ., Falmouth police officers responded to a reported disturbance at 32 Bonnie Lane. Upon arrival they observed the victim with what appeared to be a gaping wound in his stomach. The victim reported that he had been attacked by a white male wearing a gray top and tan pants. The assault had dislodged the victim's colostomy bag causing his intestines to protrude from a hole in his stomach.

After a brief unsuccessful search for the suspect, a police K-9 unit trained in the detection of human odor arrived to assist in the search. Shortly thereafter, the K-9 led police to the defendant who was hiding in the woods not far from 32 Bonnie Lane. He was wearing a gray T-shirt and tan pants. The defendant was directed to his knees and handcuffed. At that point the defendant stated that "he was smacked in the face by another male." One of the officers immediately began to give the defendant Miranda warnings by reading them from a card. The advisement was interrupted when neighbors began yelling at the defendant and the police. The officer then finished reading the Miranda warnings to the defendant.

The defendant became uncooperative when the officers told the neighbors to go inside. He rose to his feet and attempted to pull away. A struggle ensued and the officers forcibly took the defendant to the ground as he fought back. The officers regained control after fifteen to thirty seconds when a third officer arrived and "probed [the defendant] with his taser." The defendant was secured in leg irons and placed in a cruiser. While in the cruiser, the defendant stated that he had been involved in an altercation with a male in the vicinity.

The victim was transported to the hospital where he underwent surgery. While at the hospital, the victim was shown an array of photographs which included the defendant, whom he was unable to identify.

The defendant filed a motion to suppress his statements to the police claiming that (1) the statements were not voluntary due to his state of intoxication, and (2) he had not knowingly and voluntarily waived his constitutional rights. Following an evidentiary hearing and supplemental briefing, the judge denied the motion, reasoning that "both statements were voluntarily made while the defendant was in custody" and that "they were not the product of interrogation or the functional equivalent of interrogation by the police."

Discussion. 1. Testimony regarding Miranda warnings. The defendant does not challenge the denial of his motion to suppress. Rather, he claims error in the admission of testimony at trial that the defendant received his "full Miranda warnings," which, according to the defendant, was false and tainted the jury's consideration of the voluntariness of those statements. Because the defendant did not object to the testimony at trial, we review to determine whether there was error and, if so, whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. AdonSoto, 475 Mass. 497, 504 (2016).

First, we do not accept the defendant's assertion that the testimony that he received his full Miranda warnings was false. Officer Kotfila testified at both the suppression hearing and at trial that (1) he advised the defendant of his rights by reading them from a card, (2) he was interrupted when neighbors began shouting at them, and (3) he then completed reading the Miranda warnings to the defendant. The Commonwealth's statement in a post-hearing pleading that "it would be unable to meet its burden of proving that [the] [d]efendant was ever fully provided his Miranda warnings," does not render that testimony false, and the judge made no finding to that effect.

Second, evidence bearing on whether the warnings were given was relevant because the voluntariness of the defendant's statements was a live issue at trial. See Commonwealth v. Caputo, 439 Mass. 153, 164 (2003) ; Commonwealth v. Tavares, 385 Mass. 140, 153 n.19 (1982) ; Commonwealth v. Chung, 378 Mass. 451, 458 n.9 (1979). We therefore discern no error in the admission of that evidence. Finally, in light of the ample evidence that the defendant's statements were spontaneous rather than in response to police interrogation, testimony that the defendant received full Miranda warnings could not have created a reasonable doubt as to their voluntariness. In short, we see no substantial risk that justice miscarried.

2. Severance of charges. Before trial, the defendant filed a motion seeking to sever the assault and battery charge from the charges of disturbing the peace and resisting arrest. On appeal he claims that denial of the motion was an abuse of discretion, see Commonwealth v. Clarke, 418 Mass. 207, 217 (1994) ("[s]everance is a matter within the sound discretion of the trial judge"), because the evidence of resisting arrest was so overwhelming that the jury used it as a substitute for evidence of the assault and battery. We disagree.

Offenses are considered related for the purposes of joinder "if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct." Mass. R. Crim. P. 9 (a) (1), 378 Mass. 859 (1979). "Time and space play an important role in determining whether offenses are related offenses for the purposes of joinder." Commonwealth v. Delaney, 425 Mass. 587, 594 (1997). Here, where the conduct which culminated in charges of resisting arrest and disturbing the peace occurred as the defendant was being arrested for assault and battery, we think it plain that the offenses were close in time and place, and therefore related and properly joined for trial.

Further, the defendant failed to establish that "the prejudice resulting from a joint trial [was] so compelling that it prevent[ed] [him] from obtaining a fair trial." Clarke, 418 Mass. at 217, quoting Commonwealth v. Moran, 387 Mass. 644, 658 (1982). The jury's inability to reach a verdict on the charge of resisting arrest demonstrates that they did not substitute evidence of the defendant's resistance for evidence of his assault and battery on the victim.

Judgment affirmed.

      The defendant was also charged with disturbing the peace, G. L. c. 272, § 53, and resisting arresting, G. L. c. 268, § 32B. The disturbing the peace charge was dismissed at the request of the Commonwealth. The Commonwealth filed a notice of nolle prosequi with respect to the charge of resisting arrest following a mistrial on that count.


text:
    David J. HANLEY v. Katherine R. HANLEY.
    18-P-11
    Appeals Court of Massachusetts.
    Entered: October 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a trial, a Probate and Family Court judge issued a modification judgment that ordered the former husband, David J. Hanley, to pay alimony of $200 per week to the former wife, Katherine R. Hanley. The judgment also eliminated the husband's child support obligation of $250 per week and declined to impose a child support or education obligation on the wife, based on findings that the unemancipated child is no longer financially dependent on the wife and that the wife does not have the ability to pay for the support or education of the child. The husband appeals, claiming that the judge erred in issuing an alimony order that deviates from the presumptive durational limits without the support of sufficient findings, in determining that the husband had the ability to pay alimony, and in not attributing additional income to the wife. He also claims that the judge abused her discretion in vacating a provision of the original judgment pertaining to sharing college expenses. For the reasons that follow, we agree that the judgment of modification must be vacated and the matter remanded to the Probate and Family Court.

1. Continuation of alimony. The husband claims that there were insufficient findings to support a deviation from the presumptive durational limits of general term alimony. We agree. By statute, the duration of general term alimony is presumptively capped by formulas based on the "length of the marriage" for marriages lasting twenty or fewer years. See G. L. c. 208, § 49 (b ). An existing alimony award that exceeds the durational limits established by the Alimony Reform Act (Act) can be modified upon a complaint for modification without requiring a showing of a material change of circumstances. See St. 2011, c. 124, § 4 (b ); Chin v. Merriot, 470 Mass. 527, 536 (2015). A judge may order alimony to continue beyond the durational limits if written findings based on the evidence establish that deviation is "required in the interests of justice." George v. George, 476 Mass. 65, 70 (2016), quoting G. L. c. 208, § 49 (b ). "The recipient spouse bears the burden of proving by a preponderance of the evidence" that the deviation is required in the interests of justice. George, supra. "Further, a judge should evaluate the circumstances of the parties in the here and now, that is, as they exist at the time the deviation is sought, rather than the situation as it existed at the time of divorce." Id. While a " 'judge has broad discretion when awarding alimony under the [Act],' ... the judge must consider all relevant, statutorily specified factors, such as those set forth in G. L. c. 208, §§ 49 (d ) and 53 (a )." Duff-Kareores v. Kareores, 474 Mass. 528, 535-536 (2016), quoting Zaleski v. Zaleski, 469 Mass. 230, 235 (2014). The statutory factors to be considered for deviation are set forth in G. L. c. 208, § 53 (e ).

Here, it is not clear from the judge's written findings that she properly considered the factors of G. L. c. 208, § 53 (e ), before ordering a deviation from the durational limits. The judge's written findings are sparse and do not explicitly reference § 53 (e ) at all. The judge also did not make the necessary finding that deviation from the durational limits was "required in the interests of justice." Rather, the judge in her rationale for the modification judgment, stated that "[a]lthough the payment will be outside the durational limits of the Alimony Reform Statute, the court finds that based upon the foregoing there is justification." This was insufficient. See Zaleski v. Zaleski, 469 Mass. at 236 ; Heins v. Ledis, 422 Mass. 477, 481 (1996).

2. Ability to pay and need for support. The husband also claims that the judge erred in finding that he had the ability to pay alimony and in the evaluation of the wife's earning capacity. We agree. The Act "changed neither the essential purpose nor the basic definition of alimony: 'the payment of support from a spouse, who has the ability to pay, to a spouse in need of support.' " Van Arsdale v. Van Arsdale, 477 Mass. 218, 219 (2017), quoting G. L. c. 208, § 48. The judge's rationale on the husband's ability to pay stated that "[t]he husband earns $1,730 [per week] in the IT field and has the ability to pay." This finding is insufficient because the rationale is silent as to the husband's expenses and his recent decrease in pay.

For the wife's earning capacity, the judge's rationale stated that the wife had "no real employable skills except[ ] for piano teaching," while also finding "that a part time minimum wage job in the retail or service industry is all that is realistically available to her." However, the judge made no finding regarding how much the wife had earned or could potentially earn from private piano teaching, which the judge found was her only employable skill. At trial, the wife testified she had previously earned fifty dollars per one hour piano lesson and had provided five to ten lessons per week. There was also no explanation as to why the wife could only work a part-time rather than a full-time job. The judge found that the wife's mental health condition had improved since the time of the divorce but that she "remains with limitations" and that she has diagnoses including Attention Deficit Hyperactivity Disorder. The judge did not explain why the wife's mental health condition caused the judge to conclude that a part-time minimum wage job was the only job "realistically available to her." The judge also attributed income of $200 per week to the wife, but made no findings on whether the imputed income was from a potential minimum wage job or whether the judge had included possible income generated from piano teaching. The Act does not "unduly limit[ ] judicial discretion so long as judges make detailed subsidiary findings of fact." Hassey v. Hassey, 85 Mass. App. Ct. 518, 533 (2014). Where there were insufficient findings of fact to support the judge's conclusions we conclude that there was an abuse of discretion.

Based on the foregoing, we vacate the modification judgment and remand this matter to the Probate and Family Court to determine whether a continuation of the alimony is in the interests of justice after considering the factors in G. L. c. 208, § 53 (e ), and if so, to determine the amount of alimony, evaluating the husband's ability to pay alimony and the wife's need for support and her ability to self-support.

So ordered.

Vacated and remanded.

      Here, the parties agree that the judge erred in finding the length of their marriage to be fifteen years. The length of the marriage was fourteen years as defined in G. L. c. 208, § 48. Regardless of this error, by the time of trial, the statutory presumptive duration for general term alimony had expired. See G. L. c. 208, § 49 (b ) (3).

      The factors are as follows:
      "(1) advanced age; chronic illness; or unusual health circumstances of either party;
      "(2) tax considerations applicable to the parties;
      "(3) whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse;
      "(4) whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
      "(5) sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties['] divorce;
      "(6) significant premarital cohabitation that included economic partnership or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;
      "(7) a party's inability to provide for that party's own support by reason of physical or mental abuse by the payor;
      "(8) a party's inability to provide for that party's own support by reason of that party's deficiency of property, maintenance or employment opportunity; and
      "(9) upon written findings, any other factor that the court deems relevant and material."
      G. L. c. 208, § 53 (e ).

      For example, the judge did not make any finding regarding the expense the husband incurred relative to his making college tuition payments for his unemancipated child and how that affected his ability to pay alimony. Along this same line, and given our decision to remand this case, the judge should address the husband's claim that the judge abused her discretion in vacating the provision of the parties' separation agreement pertaining to sharing college expenses.


text:
    COMMONWEALTH v. Eric Javier GARCIA MERCADO.
    17-P-591
    Appeals Court of Massachusetts.
    Entered: October 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      The defendant also is commonly known as Eric Garcia.

   On August 6, 2014, the defendant pleaded guilty to eleven counts of aggravated rape and indecent assault and battery on a child under fourteen. His thirteen year old daughter was the victim. On March 24, 2017, the defendant filed a motion to withdraw his guilty pleas, arguing primarily that he received ineffective assistance of counsel because counsel advised him to plead guilty without first obtaining a ruling on a motion to suppress critical video evidence that had been found on the defendant's cellular telephone (cell phone). The motion to withdraw his guilty pleas was denied without a hearing. The defendant appeals, and we now affirm.

Background. The acts at issue took place between December, 2011, and June, 2013, and included, among other offenses, sexual intercourse and digital penetration. On several occasions the defendant recorded video and took photographs of these acts on his personal cell phone. In June, 2013, the victim took the defendant's cell phone containing these images to school with her, and lost the phone at school. The student who found the phone discovered the illicit videos. An administrator at the school learned of this discovery and promptly alerted authorities.

On June 19, 2013, Detectives Barry Dejardins and Thomas Burke interviewed the victim at her school and were informed by her that the defendant had sexually assaulted her on multiple occasions, and that the defendant had used a "My-Touch" cell phone to record video and photograph the victim during the sexual assaults. The victim, who was living with her father, also told them her father's home address, and the detectives then went to the defendant's home. When the defendant answered the door, the detectives entered the apartment and arrested the defendant without a warrant. In the process the detectives observed two cell phones on a table in the apartment, including a My-Touch cell phone. Thereafter, a third officer arrived and secured the residence, while Detective Desjardins obtained a search warrant to seize and search the cell phones. Detective Desjardins executed the warrant and upon searching the My-Touch phone discovered more than sixty videos and photographs depicting the sexual assaults the victim had described previously.

The defendant filed two motions before trial, one to suppress the cell phone evidence as the fruit of a warrantless arrest, and the other to dismiss the indictments due to alleged improper presentation of evidence during the grand jury proceedings. Neither motion was decided, however. Instead, on August 6, 2014, the day the motion to suppress was scheduled for hearing, the defendant changed his pleas to guilty, as part of an agreement with the prosecution. The defendant pleaded guilty to eleven of seventeen counts against him; pursuant to the agreement, the six most serious counts, which alleged rape of a child with force, were nolle prossed. Those counts carried a mandatory minimum sentence of fifteen years. The defendant was sentenced to serve thirteen to fifteen years.

On March 21, 2017, the defendant moved to withdraw his guilty pleas, arguing that counsel had provided ineffective assistance in failing to pursue the motion to suppress. The motion was denied without a hearing.

Discussion. A motion to withdraw a guilty plea is reviewed under the same standards as a motion for new trial. See Commonwealth v. Lastowski, 478 Mass. 572, 576 (2018). "We review the denial of a motion to withdraw a guilty plea to 'determine whether there has been a significant error of law or other abuse of discretion.' " Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016), quoting Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015). Where the motion to withdraw a guilty plea is predicated on counsel's ineffective assistance, the defendant must show that counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer," and that such conduct "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Milien, 474 Mass. 417, 430 (2016), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

Ineffective assistance of counsel. Here, the motion judge was within his discretion to deny the motion without a hearing because (1) counsel's failure to pursue the motion to suppress was not unreasonable, and (2) the record demonstrates that the defendant's guilty pleas were knowing and voluntary.

As to the motion to suppress, counsel's failure to pursue it cannot have been ineffective unless the motion had a substantial chance of excluding the important video evidence against the defendant. In this case the motion was not likely to succeed. We pass the question as to whether the arrest of the defendant, in his home and without a warrant, was unlawful. See generally Commonwealth v. Molina, 439 Mass. 206 (2003) (examining legality of warrantless arrests in defendant's home). Assuming it was unlawful, the warrant to seize and search the cell phones would still be valid if the warrant affidavit contained sufficient information to establish probable cause, independent of any information gained through the warrantless arrest. See Commonwealth v. Gray, 465 Mass. 330, 346 (2013). Here, Detective Desjardins's affidavit in support of the cell phone search warrant contained sufficient information to establish probable cause independent of any information learned during the arrest. In particular, prior to the arrest the victim had already told the police that the defendant engaged in illegal sexual acts with her, that the defendant used a My-Touch cell phone to photograph and record the encounters, and the defendant's home address.

The information from the victim was by itself sufficient to establish probable cause to search the defendant's home for his My-Touch phone, to seize it, and to search its contents. It identified the cell phone as evidence in a sexual assault, linked the defendant to the sexual assault, and established the defendant's address. See Gray, supra at 347. The cell phone, in this instance, is the type of item that could reasonably be expected to be found in the defendant's home because it is durable, of continuing use, and not inherently incriminating to possess. See id. at 347. Under the circumstances, the fact that the warrant affidavit also contained a description of what the officers learned when they arrested the defendant in his home does not fatally taint the warrant -- instead, under Gray, the affidavit should be evaluated with the tainted information disregarded. See id. at 347 ("Because a valid search warrant would have issued regardless of the inclusion of the tainted information discovered during the initial entry into the apartment, there was an independent source for the challenged evidence"). Based on the facts supplied by the victim, a valid warrant would have issued for the defendant's cell phone regardless of the detective's observation of the phones during the defendant's arrest.

Given the cell phone's inevitable discovery, defense counsel's failure to argue the suppression motion was not conduct falling measurably below that of the ordinary fallible lawyer.

Voluntariness of the guilty plea. The defendant further contends that his guilty pleas were compelled by situational pressures and his own counsel's poor advice and conduct on the day of the hearing. This argument was not well developed in the defendant's motion in the trial court, but in any event it is without merit. The record reflects a knowing and voluntary plea and the assertion of defense counsel's alleged coercion is unsubstantiated.

A guilty plea must be voluntary and intelligent. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 637 (2007). It must be "free from coercion, duress or improper inducements" -- the defendant must also understand "the nature of the charges [against him] and the consequences of his plea." Id. at 638. Where the plea is prompted by counsel's advice, the advice must be "within the range of competence demanded of" criminal attorneys to ensure its voluntariness. Commonwealth v. Chetwynde, 31 Mass. App. Ct. 8, 12 (1991), quoting Hill v. Lockhart, 474 U.S. 52, 56, 59 (1985).

Here, the motion judge conducted a lengthy and detailed plea colloquy. The defendant confirmed that he was not under the influence of any substances, that he understood the charges against him, that he was satisfied with his attorney's assistance, and that he was pleading guilty of his own free will. The transcript demonstrates the judge's care in questioning the defendant sufficiently to ascertain whether the defendant's pleas were knowing and voluntary. See Commonwealth v. Williams, 71 Mass. App. Ct. 348, 354 (2008). Indeed, when the defendant indicated some confusion, the judge paused, further explained the ramifications of pleading guilty, and allowed the defendant additional time to answer.

Although the defendant argues that situational pressures affected the pleas' voluntariness, his motion is accompanied only by his own affidavit. There is no corroborating material, nor is there a signed affidavit from plea counsel. Moreover, such inherent pressures as the fear of prison time, concern for a longer sentence if taken to trial, and the normal pressures exerted by family and defense counsel will not by themselves render a plea involuntary. See Commonwealth v. Berrios, 447 Mass. 701, 708 (2006). The defendant's contention that counsel's poor advice compelled his pleas is similarly without merit because, as previously discussed, the motion to suppress was not viable and therefore it was appropriate, in the face of the video evidence, to advise the defendant to accept a plea deal with a reduced sentence. See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).

Order denying motion to withdraw guilty pleas affirmed.

      The defendant raises several arguments on appeal that were not previously made in his motion to withdraw the guilty pleas. The court need not consider these arguments. See Commonwealth v. Stokes, 460 Mass. 311, 316 (2011).


text:
    COMMONWEALTH v. Henry FICKLING.
    17-P-1040
    Appeals Court of Massachusetts.
    Entered: October 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Henry Fickling, appeals from his conviction of violating an abuse prevention order, G. L. c. 209A, § 7, based on his presence in the library of Springfield Technical Community College (STCC). The victim and the defendant were involved in a six-year relationship that ended in 1996. The victim obtained an abuse prevention order that was made permanent in 2011. This order expressly states, without qualification, that the defendant is "ordered to stay away from the plaintiff's workplace located at STCC library, One Armory Square."

Based on the evidence presented at trial, the jury were warranted in finding that on April 28, 2015, the defendant was inside the library, sitting at one of the public computers. On that day, the victim, who obtained the restraining order and who was employed by the library, was in Hartford, Connecticut, visiting her severely ill sister. Shawn DeJong, chief of campus police, was informed that the defendant was inside the library in violation of an abuse prevention order. Chief DeJong responded to the library building, located the defendant, escorted the defendant from the building, and placed him under arrest. The defendant was informed that he was being arrested because he was in a location where he was not permitted to be under the terms of the abuse prevention order. A copy of the permanent abuse prevention order was admitted in evidence.

The defendant testified at trial that after his relationship with the victim ended, an abuse prevention order issued against him. On direct examination, he testified that his understanding of the order was that he was not permitted to contact the victim, and to stay away from the library while the victim was at work. On the day in question, at approximately 2 P . M ., the defendant was on the campus of STCC as he was attempting to re-enroll to complete the course of studies he began in 1996. He acknowledged that he had filed a motion to modify the abuse prevention order and that his motion was scheduled to be heard at 9 A . M . that day, but by mistake his social worker told him he had a morning doctor's appointment. After missing the court hearing, he decided to go to STCC to address an outstanding bill. He testified that he went to the financial aid office across the street from the library and was informed that he had to check his financial aid status on the school's Web site. He decided to go to the library to use the free computers. He also testified that he assumed the victim would not be working at the library that day but instead would be in court for the scheduled hearing.

On cross-examination, the defendant admitted that he received a copy of the abuse prevention order on December 11, 2011. When pressed about its terms, the defendant indicated that he was ordered not to contact the victim, but understood he was to stay away from the library only when she was working there.

On appeal, the defendant does not challenge whether the evidence presented by the Commonwealth was sufficient to support the jury's verdict. Furthermore, the defendant does not challenge the judge's basic instruction in which he explained the four elements that the Commonwealth is required to prove to establish a violation of G. L. c. 209A, § 7. Instead, the defendant cites Commonwealth v. Collier, 427 Mass. 385 (1998), and argues that the judge erred by not instructing the jury on the defense of accidental or incidental contact. In Collier, the Supreme Judicial Court reiterated its holding in Commonwealth v. Delaney, 425 Mass. 587, 595-597 (1997), that to prove a violation of G. L. c. 209A, § 7, the Commonwealth is not required to prove that the defendant intended to violate the order. See Collier, supra at 388. In Collier, the court also explained that when the crime in question involves an act that the defendant is prohibited from doing, the Commonwealth must prove that the defendant intended to do the act that constitutes the crime. See id. at 389. However, this was not a case in which there was a factual dispute over whether the defendant intended to enter the library. The only evidence before the jury was that the defendant entered the library on the day in question voluntarily and not under duress or by accident. The defendant also seeks to draw support from Commonwealth v. Shea, 467 Mass. 788, 794 (2014), arguing that even if an abuse prevention order forbids a person to be in a specific location, if he is there for a lawful purpose he would be excused from all but nonincidental contact with the victim. Setting aside the fact that the defendant did not raise this issue below, nothing in the Shea case supports the defendant's argument. The defense of mistaken or accidental contact arises in connection with an alleged violation of the no-contact provision of an abuse prevention order. In this case, the defendant was charged with violating the provision of the order that stated he must "stay away from the plaintiff's workplace located at STCC library, One Armory Square." The only intent requirement that the Commonwealth was required to prove was that the defendant intended to enter the library on the day in question.

Judgment affirmed.

      "To prove a defendant guilty of such a violation, the Commonwealth must prove four elements beyond a reasonable doubt: (1) that a court had issued an abuse protection order; (2) that the order was in effect on the date when its violation allegedly occurred; (3) that the defendant knew the relevant terms of the order were in effect, either by having received a copy of the order or by having learned of the terms of the order in some other way; and (4) that the defendant violated a term of the order." Commonwealth v. Shea, 467 Mass. 788, 794 (2014).

      In particular, the court stated that, " '[w]here the definition of a crime requires some forbidden act by the defendant, his bodily movement, to qualify as an act, must be voluntary. To some extent, then, all crimes of affirmative action require something in the way of a mental element -- at least an intention to make the bodily movement which constitutes the act which the crime requires.' ... In this case, the jury could have found that the defendant was aware of the protective order, but that the Commonwealth failed to prove that he intended that the car take a route that might violate the order. Where the evidence fairly raises an issue as to the defendant's intent either to direct, or acquiesce in, conduct of a third party, there must be proof that the defendant at least intended the act that resulted in the violation. Accordingly, in those comparatively rare situations where a third party is involved in the act that results in the violation, to obtain a conviction under G. L. c. 209A, § 7, the Commonwealth is required to prove beyond a reasonable doubt an intentional act by the defendant which led to the violation of the c. 209A order." Collier, 427 Mass. at 389, quoting 1 W. LaFave & A.W. Scott, Jr., Substantive Criminal Law § 3.5(e), at 314 (1986).

      In fact, during the charge conference, the judge considered and rejected the need to instruct the jury on the defense of accidental or incidental contact. Defense counsel voiced no objection.


text:
    COMMONWEALTH v. Phonekeo SISOMBATH.
    17-P-1136
    Appeals Court of Massachusetts.
    Entered: October 29, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Phonekeo Sisombath, appeals from an order denying his motion for a new trial based on a claim of ineffective assistance of counsel. We affirm.

Background. The following facts are drawn from the motion judge's memorandum of decision and order. In July, 2010, a jury found the defendant guilty of eleven counts of indecent assault and battery on a child under the age of fourteen and six counts of rape of a child. The victim was the defendant's stepdaughter. In October, 2012, a panel of this court affirmed the convictions in an unpublished decision. See Commonwealth v. Sisombath, 82 Mass. App. Ct. 1115 (2012).

In January, 2015, the defendant filed a motion for a new trial contending that his trial counsel was ineffective. The motion judge, who was also the trial judge, held an evidentiary hearing on the motion in November, 2015. Trial counsel testified at the hearing. The judge found that the initial defense strategy was to challenge the victim's credibility by introducing her prior allegations of sexual abuse by another person, and by emphasizing her failure to report the defendant's abuse earlier despite having numerous opportunities to do so. However, at the beginning of the trial, the judge ruled that any mention of the victim's alleged prior sexual assault was precluded by the rape-shield statute, G. L. c. 233, § 21B, as amended by St. 2010, c. 267, §§ 46-48. As a result, trial counsel shifted his strategy and sought to undermine the victim's credibility by impeaching her testimony that the defendant's penis was "normal" with the defendant's testimony and photographic evidence that his penis has a scar. Although defense counsel learned of the scar two or three months prior to trial, he did not pursue the issue until after the trial had commenced. The defendant's wife took photographs of her husband's scarred penis on a weekend during the trial; these photographs were introduced in evidence during the defendant's case.

The defendant's sister testified at the hearing on the defendant's motion for a new trial that she was never asked to testify at trial, that she remembered seeing the defendant's scar as a young child, and that the defendant was teased as a child about the appearance of his penis. The defendant also submitted an affidavit from a plastic surgeon who stated that he would have testified at trial that he received from the defendant a history of the scar, that the scar was consistent with a burn in the manner and during the time period that the defendant provided, and would be visible on the side and underside of the distal penis. He also would have opined that it is impossible to determine whether the scar would be visible on an erect penis. The judge denied the defendant's motion in a well-reasoned memorandum of decision.

Discussion. A motion for a new trial may be allowed when "it appears that justice may not have been done." Mass. R. Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001). We review claims of ineffective assistance under the familiar two-prong Saferian test, examining (1) whether the defendant demonstrated "serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer" -- and (2) whether such behavior "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was 'manifestly unreasonable' when made." Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 347 Mass. 722, 728 (1978). Our review of the denial of a motion for a new trial is limited to determining "whether the motion judge 'committed an abuse of discretion or a significant error of law.' " See Commonwealth v. Lys, 91 Mass. App. Ct. 718, 720 (2017), quoting Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). "[W]e show special deference to the judge's decision on a motion for a new trial when that judge was also the ... trial judge," as he was here. Id.

The defendant argues, as he did below, that trial counsel was ineffective because he failed to adequately prepare a defense based on the penile scar, substantially weakening his challenge to the victim's credibility. According to the defendant, counsel's failure permitted the Commonwealth to exploit the absence of evidence corroborating his testimony as to when the injury causing the scar occurred and highlighted the fact that the photographs had been taken recently. The judge did not abuse his discretion in rejecting this argument.

We agree with the judge's conclusion that trial counsel's conduct did not fall below that which might be expected from an ordinary, fallible lawyer nor did it deprive the defendant of an otherwise available, substantial defense. Trial counsel did in fact present this defense to the jury: he cross-examined the victim as to her observations of the defendant's penis, which the victim described as "normal"; the defendant testified to his injuries; and trial counsel introduced photographs that clearly show a visible scar on the defendant's penis. As the judge stated, "the defendant achieved the benefit of complete surprise when the issue was presented through [the defendant's] testimony after the complaining witness had already completed hers." Furthermore, trial counsel argued this evidence to the jury in his closing and suggested that no sexual assaults occurred, as the victim would have noted the scar. Additionally, the proposed testimony of a plastic surgeon did not answer the question whether the scar would have been visible on an erect penis or whether a child being assaulted would notice the scar, which was on the side and underside of the penis.

Order denying motion for new trial affirmed.

      The trial judge dismissed two counts of witness intimidation prior to trial.

      The history the plastic surgeon received matched the testimony given by the defendant at trial.


text:
    COMMONWEALTH v. Matthew B. WHITNEY.
    17-P-1444
    Appeals Court of Massachusetts.
    Entered: October 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury-waived trial, the defendant was convicted of possession of a class A substance in violation of G. L. c. 94C, § 34. On appeal, he contends that his motion to suppress the contraband discovered in the car should have been allowed and that statements made after faulty Miranda warnings likewise should have been suppressed. We reverse the judgment and set aside the finding.

Background. The arresting State police trooper was the only witness at the suppression hearing. We briefly summarize his testimony at that hearing. The defendant was driving a car with an expired inspection sticker on Route 6 in Wareham when Trooper Russell Patenaude stopped the car. There was one passenger in the front passenger seat. After the defendant pulled into a parking lot, Trooper Patenaude approached the car and noted that the defendant and passenger were "moving around" in the car. Upon arriving at the driver's window, Trooper Patenaude made the following observations of the defendant: "His body was jerking. He kept making sudden jerky movements with his hands and body shaking. And he had open sores on his face, on his arms. I could see fresh needle marks on his arms. And I also observed his eyes were pinpointed." Trooper Patenaude then asked the defendant when he had last used heroin, and the defendant responded that he had used "yesterday." Trooper Patenaude testified, "After making those observations and watching his body move and the way he was acting, I determined the need to perform field sobriety tests, and I asked [the defendant] to step from his vehicle."

The defendant initially refused to exit the car, but complied once Trooper Patenaude informed the defendant that he would otherwise physically remove and arrest him. As the defendant exited the car, Trooper Patenaude observed a knife in the defendant's pocket and immediately removed it. As a result, Trooper Patenaude decided to pat frisk the defendant and as he attempted to do so, the defendant continued "not [to] cooperate." At this point, concerned for his safety, the trooper handcuffed the defendant and placed him in the back of the police cruiser without administering any field sobriety tests. Trooper Patenaude testified that he then advised the defendant of his Miranda rights by memory:

"I told him you have the right to remain silent. Anything you say or do can and will be used against you in a court of law. If you decide to answer any questions or make any statements without an attorney present, you can stop at any time and request the services of an attorney. And if you cannot afford an attorney, one may be provided to you by the Commonwealth. Then I asked him if he understood those rights. He stated he did."

After receiving the warnings, the defendant admitted to having used heroin "around noontime, maybe 12:30" on that day, approximately four and one-half hours prior to his arrest. The defendant also told Trooper Patenaude that there might be a needle in the glove compartment and that the passenger might have heroin in his pants. When Trooper Patenaude conducted an inventory search of the car, nothing was found in the glove compartment, but he did discover a folded piece of paper holding what he believed to be heroin "inside the driver's door." In addition, in the back-seat floor area, the trooper found a "heroin kit," which included a spoon and needles. Trooper Patenaude did not find heroin in the passenger's pants, but upon questioning, the passenger also admitted to using heroin earlier that day.

Motion to suppress. The defendant moved to suppress all items discovered by and statements made to Trooper Patenaude. The motion to suppress asserted that the exit order as well as the search of the car were unconstitutional and that the defendant was not advised of his Miranda rights. Although the motion made no claim that the Miranda warnings were defective, in closing argument at the motion hearing, the defendant argued that the Miranda warnings given were "not sufficient." The motion was denied. On appeal, the defendant contends that the motion judge erred in denying the motion because the exit order was not supported by reasonable suspicion and the trooper's Miranda warnings were constitutionally inadequate.

"In reviewing a decision on a motion to suppress, 'we accept the judge's subsidiary findings of fact absent clear error "but conduct an independent review of [the judge's] ultimate findings and conclusions of law." ' " Commonwealth v. Keefner, 461 Mass. 507, 515 (2012), quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004). Here, the motion judge heard testimony only from Trooper Patenaude and, according to the record, made no written or oral findings. Only the word "Denied" appears on the defendant's motion. From these circumstances, we infer that the judge found the trooper's testimony credible.

a. Exit order. While there was no evidence to suggest that the defendant was driving erratically, the initial stop was warranted because the car's inspection sticker had expired. See Commonwealth v. Santana, 420 Mass. 205, 207 (1995) ("Where the police have observed a traffic violation, they are warranted in stopping a vehicle" [quotation omitted] ). After approaching the car, Trooper Patenaude observed the defendant make sudden, jerking movements and that he had open sores on his face and arms, fresh needle marks on his arms, and "pinpointed" eyes. When asked, the defendant admitted to heroin use the day before. Those facts gave the trooper reasonable suspicion to believe that the defendant may have been operating the car while under the influence of drugs, which made issuing the exit order to administer field sobriety tests appropriate. See Commonwealth v. Blais, 428 Mass. 294, 298 (1998) ("it is appropriate for an officer with reasonable suspicion that a person is operating a vehicle while under the influence of drugs or alcohol to take the brief, scarcely burdensome steps involved in administering these tests in order to assure himself that he is not turning loose a drunk driver on the traveling public"). The exit order, therefore, was justified.

b. Miranda warnings. As stated above, the defendant did not raise the Miranda claim with particularity in his motion to suppress. Typically, that would bar his claim on appeal pursuant to Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004). See Commonwealth v. Johnston, 60 Mass. App. Ct. 13, 17-21 (2003). However, rule 13 (a) (2) requires that the motion state "all reasons, defenses, or objections then available... [and] [g]rounds not stated which reasonably could have been known at the time a motion is filed shall be deemed to have been waived, but a judge for cause shown may grant relief from such waiver" (emphasis added). On this record, the defendant could not have reasonably known about the deficiency in the Miranda warnings until Trooper Patenaude testified at the suppression hearing. Contrast Commonwealth v. Lodge, 431 Mass. 461, 473-474 (2000) (in motion to suppress, defendant failed to raise whether search for weapon found behind refrigerator was outside curtilage of his apartment); Johnston, supra at 15-17 (Miranda challenge not preserved where warnings were provided to defendant on written police form). Once aware of the deficiency, the defendant raised the issue with specificity in his closing argument.

Because the Miranda issue was properly raised, we analyze whether the warnings were insufficient, and if so, whether the admission of the post-Miranda statements was harmless beyond a reasonable doubt. See Commonwealth v. Dagraca, 447 Mass. 546, 552 (2006). Before any custodial interrogation, a suspect must be warned:

"[1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."

Johnston, supra at 15-16, quoting Miranda v. Arizona, 384 U.S. 436, 479 (1966). A suspect's right to counsel is paramount. "[T]his warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead." Miranda, supra at 471-472.

Trooper Patenaude's Miranda warnings fall short of this standard. He never stated unequivocally that the defendant had the right to an attorney or that the right to an attorney extends prior to any questioning. Further, by using the word "may," Trooper Patenaude made the provision regarding the right to an attorney sound conditional rather than mandatory. Miranda warnings should be clear to the least educated among us, and the trooper's statements failed to explicitly outline the full scope of the defendant's rights. Because the warnings were insufficient, the defendant's subsequent statements were inadmissible. See Dagraca, supra.

In determining "whether the erroneous admission was harmless beyond a reasonable doubt," id., we must weigh certain factors, including:

"[1] the importance of the evidence in the prosecution's case; [2] the relationship between the evidence and the premise of the defense; [3] who introduced the issue at trial; [4] the frequency of the reference; [5] whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; [6] the availability or effect of curative instructions; and [7] the weight or quantum of evidence of guilt."

Commonwealth v. Seino, 479 Mass. 463, 467-468 (2018), quoting Dagraca, 447 Mass. at 553. "An assertion that the error is harmless beyond a reasonable doubt is most particularly vulnerable where the over-all strength of the Commonwealth's case radiates from a core of tainted evidence." Commonwealth v. Castano, 478 Mass. 75, 82 (2017), quoting Commonwealth v. Tyree, 455 Mass. 676, 701-702 (2010). "[W]e analyze the case to see whether the error might have had an effect on the [judge] or contributed to the [finding], and whether the Commonwealth's evidence was ' "merely cumulative" of evidence properly before the jury,' Commonwealth v. Sinnott, [399 Mass. 863,] 872 n.8 [ (1987) ], or was overwhelming without the erroneously admitted evidence." Dagraca, 447 Mass. at 553.

Here, we conclude that the admission of the evidence resulting from the faulty Miranda warnings was not harmless error. The Commonwealth was attempting to prove that the defendant possessed the heroin, and to do so it had to prove knowledge and intent. See Commonwealth v. Proia, 92 Mass. App. Ct. 824, 830 (2018) ("In order to prove that a defendant constructively possessed contraband, the evidence must be sufficient to permit the jury to infer that the defendant had knowledge of the contraband, as well as the ability and intent to exercise dominion and control over it"). The defendant's post-Miranda assertions provided a substantial amount of the evidence for that determination. The defendant's statement that drug paraphernalia might be found in the car (as well as in the passenger's pants) provided the only concrete evidence suggesting that the defendant knew that drugs were in the car and that he had the intention to exercise dominion and control over them. Likewise, the fact that he admitted to using heroin earlier in the day substantially increased the likelihood of his knowledge and intent with respect to the heroin found in the car. Here, it is clear that the trial judge relied on this evidence in making her determination.

Without the excludable statements, the Commonwealth still would have had evidence of a driver, showing visual indicia of drug use, found in a car where heroin was located in the driver's door and a "heroin kit" was located in the back-seat floor area. No evidence was presented at trial regarding the ownership of the car, nor was an expert witness called to testify in regards to the age of the alleged track marks seen on the defendant's body. We certainly cannot say that the remaining balance of evidence is so "overwhelming" as to nullify the effect of the improper statements. Dagraca, 447 Mass. at 555. The admission of this evidence therefore was not harmless beyond a reasonable doubt.

Judgment reversed.

Finding set aside.

      The defendant had been charged with two additional crimes. A directed verdict was entered at the close of the Commonwealth's case as to negligent operation of a motor vehicle and the defendant was found not guilty of operating a motor vehicle under the influence of narcotic drugs.

      According to the motion to suppress, "Trooper Patenaude ordered the Defendant out of the car, searched him, handcuffed him and arrested him prior to questioning him without having advised him of his rights under Miranda v. Arizona.... Trooper Patenaude asked specific questions of the Defendant with the intention of extracting incriminating responses at a time when no reasonable person would have felt free to leave."

      Defense counsel stated, "[F]inally, Your Honor, the Miranda warnings given were not sufficient. There was no indication that Mr. Whitney was entitled to an attorney before or during the questioning. That was lacking, and I would suggest that the Miranda as given was not sufficient, so the statements made to the trooper in the back -- from the back of the cruiser must be suppressed."

      During the closing arguments at trial, the judge interrupted defense counsel to question his argument that the defendant had no knowledge or intent regarding the drugs found in the car: "So let's see if it's a reasonable inference that he might have -- you know, someone who's admitted to having ingested heroin at some point during the course of the day where he directs the trooper to needles that may be located in the car, and within arm's reach is a package of what is later determined to be heroin, I don't know that it's not unreasonable to infer that he certainly had knowledge of that item and the intent to exercise dominion and control."

      At trial, when asked during cross-examination whether the car was registered to the defendant, Trooper Patenaude testified, "I'll agree that it might not have been [the defendant's] car."