text:
    COMMONWEALTH v. Rafael Nina BRITO.
    17-P-945
    Appeals Court of Massachusetts.
    Entered: August 27, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   By the Court (Vuono, Neyman & Shin, JJ. ),

The defendant, Rafael Nina Brito, appeals from an order denying his motion under Mass.R.Crim.P. 29(a)(2), as appearing in 474 Mass. 1503 (2016), to revise or revoke his sentence. He was convicted by a jury of rape on an indictment charging him with aggravated rape; three codefendants were similarly charged. As grounds for his rule 29 motion, the defendant claims that the sentence he received was "unlawfully disparate" from the sentences received by his codefendants and that he was punished for electing to proceed to trial. He also claims that the judge failed to adequately consider his acceptance of responsibility for his conduct. We conclude that the judge did not abuse his discretion in denying the defendant's motion, see Commonwealth v. Malick, 86 Mass. App. Ct. 174, 185 (2014), and, therefore, we affirm.

Background. We summarize the facts and procedural history as follows. The defendant and three of his high school classmates, Harold Baltodano, Lois Arias, and Justin Louf, were the subject of indictments charging aggravated rape. The victim, who attended the same school, was under the influence of alcohol and marijuana when the defendant and the codefendants brought her to the defendant's home on the evening of February 15, 2008, and raped her. Baltodano's case was severed, and the three remaining defendants were scheduled to have a joint trial commencing on March 19, 2012. After jury selection, Arias and Louf pleaded guilty to aggravated rape. Upon acceptance of the pleas, the judge sentenced Arias to serve from four and one-half to five years in State prison. Louf received a sentence of from three years and nine months to four years and three months in State prison. The defendant's case proceeded to trial, and he was convicted of the lesser included offense of rape.

At the sentencing hearing, the prosecutor recommended a seven to eight-year sentence. Defense counsel argued that the defendant deserved a more lenient sentence than his codefendants because he (1) was found guilty of the lesser included offense of rape whereas the codefendants each pleaded guilty to the crime of aggravated rape, (2) had taken responsibility for his actions when he spoke to the police shortly after the rape, (3) had no prior criminal record and came from a good family, and (4) had not make any disparaging remarks about the victim during the trial. Defense counsel suggested that a short term of incarceration, from one to two and one-half years in a State prison, would be adequate punishment. The judge essentially adopted the prosecutor's recommendation and imposed a sentence of from six and one-half to eight years.

The defendant appealed his sentence to the Appellate Division of the Superior Court, but subsequently withdrew that appeal for reasons which are not apparent in the record. We affirmed the defendant's conviction in an unpublished memorandum and order issued pursuant to our rule 1:28. See Commonwealth v. Brito, 89 Mass. App. Ct. 1108 (2016). After the rescript had issued, the defendant filed a motion to revise and revoke his sentence. The motion was accompanied by an affidavit in which the defendant averred, among other things, that he had discussed with his attorney the Commonwealth's pretrial offer of a five-year sentence in exchange for a plea of guilty to aggravated rape. The defendant decided to proceed to trial "because [he] believed it was the right thing to do at that time based on [his] attorney's advice for [him]self and [his] family." Following a nonevidentiary hearing, the trial judge denied the defendant's motion in a margin endorsement. This appeal ensued.

Discussion. The purpose of rule 29"is to permit a judge to reconsider the sentence he has imposed and determine, in light of the facts as they existed at the time of sentencing, whether the sentence was just." Commonwealth v. Layne, 386 Mass. 291, 295 (1982) (emphasis in original). It is within the judge's discretion to grant or deny a motion to revise or revoke the defendant's sentence. Commonwealth v. Malick, 86 Mass. App. Ct. at 185.

The defendant contends that his sentence is unjust because it is harsher than the sentences received by his codefendants, even though he was found guilty of the lesser included offense of rape. The Supreme Judicial Court rejected a similar argument nearly forty years ago. See Commonwealth v. Longval, 378 Mass. 246 (1979). In that case, the defendant, who was convicted after trial of armed robbery (among other offenses), was sentenced to consecutive terms of incarceration in State prison of thirty-two to forty years, and eight to ten years. Id. at 247. By contrast, a codefendant who pleaded guilty to the same indictments received three years in a house of correction and an additional term of probation. In rejecting the defendant's claim that his sentence was unjust, the court explained that "[w]e agree that this court should review sentences for errors of law or constitutional violation, but we do not accept the premise that we ordinarily have jurisdiction to review for alleged disparity." Id. at 252-253. The court further observed that there may be "a case in which the sentence is so severe or the demonstrated disparity so great as to amount to an abuse of discretion and, thus, [will] present an appropriate subject for [ ] review." Id. at 253. However, the circumstances in Longval did not present such a case, and neither does this one. The defendant's sentence falls well below the maximum twenty-year sentence that may be imposed for the crime of rape, G. L. c. 265, § 22(b ). Given these circumstances, we do not view the disparity at issue here to be "so severe ... as to amount to an abuse of discretion." Longval, supra.

We turn next to the defendant's argument that the judge punished him for exercising his right to a jury trial. He points to comments made by the judge before trial commenced indicating that he would take the defendants' acceptance of responsibility, as demonstrated by pleading guilty, into consideration in fashioning an appropriate sentence, and argues that the comments reflected the judge's intent to impose a heavier sentence after trial.

Although we agree with the defendant's premise, that to the extent a trial judge punishes a defendant for having a trial by jury the judge commits constitutional error, that did not occur here. The judge's comments do not support an inference of punishment. Rather, the judge appropriately advised the defendant (and codefendants) that they would be rewarded for accepting responsibility and sparing the victim from the ordeal of testifying. The judge did not suggest that he "had an interest in avoiding trial or that [ ]he was displeased with the defendant's decision to put the Commonwealth to its proof," Commonwealth v. Ravenell, 415 Mass. 191, 195 (1993), and he never stated "that a more severe punishment would follow conviction." Commonwealth v. Souza, 390 Mass. 813, 821 n.6 (1984). Consequently, we conclude that there is no likelihood that the defendant was punished for exercising his constitutional right to have a trial.

Lastly, the defendant asserts the judge abused his discretion by not giving him credit for accepting responsibility for his conduct when he was interviewed by the police shortly after the criminal episode. The short answer to this argument is that the judge, having heard all of the evidence, apparently disagreed with the defendant's characterization of himself as a minor or reluctant participant. Although we do not have the benefit of knowing the judge's reasons for his decision, the record amply supports the conclusion that the defendant was as culpable as his codefendants, if not more so. The victim, who already was intoxicated, was given liquor obtained by the defendant and then brought to the defendant's house. More importantly, by his own admission, the only reason the defendant did not fully engage in the physical act of rape was because he failed to achieve an erection. The defendant also admitted that he did nothing to protect the victim. Furthermore, while the defendant describes his statements to the police as forthright and helpful to the investigation, they were also self-serving and calculated to minimize his role in the offense. In sum, the judge did not abuse his discretion in denying the defendant's motion on the ground that the sentence imposed did not reflect the degree to which he accepted responsibility for his conduct.

Order denying motion to revise and revoke sentence affirmed.

      The panelists are listed in order of seniority.

      Baltodano subsequently pleaded guilty before the same judge, who imposed a sentence of from four to four and one-half years in State prison.

      The defendant points to the fact that he voluntarily appeared at the police station where he gave a statement admitting his involvement in the rape. He described picking the victim up with his friends and bringing her to his home. He admitted that the victim was intoxicated and that he grabbed the victim's breast and the outside of her vagina before attempting to engage in oral sex. The defendant claimed that he did not penetrate the victim because he did not feel aroused. The defendant stated to the officers that "I think I'm just as guilty as them, because I saw it happen ... even if I didn't get involved ... but I'm here fixing it now." In addition, he stated that it is "all my fault because I didn't stop it."

      Longval's sentences were reduced by the Appellate Division as a result of a sentence appeal as follows: concurrent terms of thirty to forty years on the armed robbery indictments, and lesser terms as to the other sentences, all to be served concurrently with the sentences for armed robbery.

      See also Commonwealth v. Grimshaw, 412 Mass. 505, 513 (1992).

      The judge stated: "Okay. I just want to make it clear that if the defendants -- if any defendant were to plead guilty before the victim, the alleged victim, testifies, they get full credit for acceptance of responsibility, just so you know, Okay?" The judge continued: "All right? I don't -- I mean we have this -- you know, with this many defendants, we had to select a jury and everything anyways. So there's no harm, no foul."

      Among other statements, the defendant told the police that "if my thing went up, I would have been involved in it too."


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Edwin NUNEZ.
    16-P-1415
    Appeals Court of Massachusetts.
    Entered: August 27, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   By the Court (Rubin, Maldonado & Ditkoff, JJ. ),

The defendant, Edwin Nunez, appeals from jury trial convictions on two counts of manslaughter, G. L. c. 265, § 1, in Superior Court. The defendant challenges only the denial of his motion to suppress various statements made to law enforcement and hospital personnel. Finding no error in the motion judge's conclusion that the challenged statements were made voluntarily by the defendant and that the defendant voluntarily waived his Miranda rights, we affirm.

1. Background. On the morning of July 23, 2010, the defendant and Sophan Yin left 2 Butman Place in Lowell, where they were staying with the defendant's sometime paramour, Debbie Grossi, to purchase "crack" cocaine at a nearby apartment located at 342 Westford Street. The purchase did not go as planned; they returned to the house separately without the drugs or the eighty dollars Yin had given the defendant to pay for them. The defendant claimed he had been "burnt," or "scammed," by the dealers at the apartment. Both men were angry and upset and discussed getting their money back. During this time the defendant smoked some crack cocaine and consumed one-half of a pint of vodka and several beers.

Around 3:30 P.M. , the defendant, Yin, and Phouvieng Phouthavong left the residence and made the short walk to 342 Westford Street. They followed the defendant to an apartment upstairs. The two women inside the apartment admitted the defendant while Yin and Phouthavong waited outside the door. An argument between the defendant and the women about the money erupted and quickly intensified into a fight. Yin and Phouthavong fled, and witnesses reported two Asian men running out of the apartment, followed by screams from a woman covered in blood.

Responding to 911 calls, Lowell police officers and other law enforcement personnel found the two women bleeding heavily from multiple stab wounds to the neck and chest. Both women died before they reached a hospital. Deoxyribonucleic acid evidence mixed with the victims' blood and collected from the apartment and a blood-stained knife recovered nearby matched the defendant.

The defendant returned to 2 Butman Place soon after. He was clearly intoxicated and very distressed, telling Grossi, "I'm going to get blamed for something I didn't do," before grabbing a kitchen knife and stabbing himself repeatedly. Grossi telephoned 911. Responding officers and paramedics found the defendant on the floor, bleeding heavily from stab wounds to the chest and abdomen, and rushed him to a hospital.

Subsequent investigation resulted in the defendant's indictment on two counts of murder in the first degree and two counts of assault and battery by means of a dangerous weapon. Prior to trial, the defendant moved to suppress statements he made to hospital and law enforcement personnel from July 23 through July 26, 2010. After an evidentiary hearing, a Superior Court judge denied the motion. The defendant was convicted of two counts of manslaughter on December 17, 2014, and this appeal followed.

2. Standard of review. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of his ultimate findings and conclusions of law.' " Commonwealth v. Callender, 81 Mass. App. Ct. 153, 154 (2012), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). "[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Clarke, 461 Mass. 336, 340 (2012), quoting from Commonwealth v. Bostock, 450 Mass. 616, 619 (2008).

3. Discussion. A defendant's statement is admissible only if made voluntarily, "regardless of whether [it is] made to police or civilians." Commonwealth v. Kolenovic, 478 Mass. 189, 198 (2017). The Commonwealth, moreover, must prove voluntariness "beyond a reasonable doubt." Commonwealth v. Knowles, 92 Mass. App. Ct. 617, 628 (2018), quoting from Commonwealth v. Tremblay, 460 Mass. 199, 206 (2011). Although "separate and distinct issues," we apply the same analysis to the voluntariness of a defendant's Miranda waiver as to the voluntariness of statements challenged on due process grounds. Commonwealth v. Woodbine, 461 Mass. 720, 729 (2012), quoting from Commonwealth v. Edwards, 420 Mass. 666, 673 (1995). "[T]he ultimate inquiry is 'whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.' " Knowles, supra, quoting from Commonwealth v. Molina, 467 Mass. 65, 75-76 (2014).

Statements that are the product of "a defendant's debilitated condition, such as ... drug abuse or withdrawal symptoms, [or] intoxication ... are not the product of a rational intellect or free will and are involuntary." Commonwealth v. Bell, 473 Mass. 131, 141 (2015), quoting from Commonwealth v. Allen, 395 Mass. 448, 455 (1985). Thus, "special care must be taken to assess the voluntariness of a defendant's statement where there is evidence that he was under the influence of alcohol or drugs." Commonwealth v. Brown, 462 Mass. 620, 627 (2012). An otherwise voluntary act, however, "is not necessarily rendered involuntary simply because an individual has been drinking or using drugs," Knowles, 92 Mass. App. Ct. at 628, quoting from Commonwealth v. Shipps, 399 Mass. 820, 826 (1987), nor is a statement made under "even profound distress" necessarily considered involuntary. Commonwealth v. Stroyny, 435 Mass. 635, 646 (2002).

Rather, such statements are admissible where a defendant proves alert, coherent, and capable of rational thought and conversation despite pain, injury, emotional distress, or the influence of alcohol or drugs. See, e.g., Commonwealth v. Wills, 398 Mass. 768, 776 (1986) (defendant's statements voluntary despite stab wounds to abdomen and arm where "his condition was described as stable, calm, and alert"); Brown, 462 Mass. at 627 (defendant's statements properly not suppressed where, although he "was sluggish from the influence of drugs, there [was] nothing to suggest that he was acting irrationally or was out of control"); Knowles, 92 Mass. App. Ct. at 620 (defendant's statement voluntary despite evidence he "was intoxicated on alcohol, marijuana, and prescription sedatives").

In Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 77 (2011), the defendant was involved in a high-speed collision, killing another driver. The defendant was found unconscious and partially hanging out of his vehicle's front passenger side window. Id. at 78. He suffered fractures to his right tibia and fibula, a concussion, and lacerations to his head and face. Id. at 79. The defendant told emergency responders, "I'm never going to drink again," admitted he had been the driver, and mentioned drinking that night. Ibid. He appeared intoxicated and recorded a blood alcohol level of .19 at the hospital, where morphine and oxycodone were administered. Ibid. The defendant thereafter waived his Miranda rights and made other incriminating statements. See ibid. He later moved to suppress his statements, arguing "that the effects of the combination of injury, alcohol, emotional distress, and prescription medication rendered his statements, both at the accident scene and in the hospital, involuntary." Id. at 80. The motion was denied. Id. at 77.

In affirming, we emphasized that the defendant was alert and oriented, and responded coherently to questioning. Id. at 81. In spite of his "traumatic and painful injuries," the defendant "spoke cogently, answered questions promptly, and was able to carry on a conversation." Ibid. That the defendant "retained the presence of mind" to minimize his culpability by stating he had only "[o]ne or two beers" was also significant. Ibid. Ultimately, we determined that, "[d]espite the defendant's anxiety, physical trauma, and consumption of alcohol and pain medication," there was "no error in the motion judge's conclusion that the statements were voluntarily made." Id. at 81-82. Liptak is instructive here.

a. Statement number one. The first challenged statement in this case was made at approximately 4:00 P.M. on July 23, 2010, when officers initially encountered the defendant at 2 Butman Place. When asked what happened and who stabbed him, the defendant answered, "I'm depressed. I stabbed myself." Although he was injured and later determined to be intoxicated by alcohol and some amount of cocaine, officers testified that the defendant was conscious, responded appropriately, and was not visibly intoxicated or under the influence of drugs. The judge could credit this testimony, see Commonwealth v. Beland, 436 Mass. 273, 281 (2002), and nothing in the record requires a conclusion to the contrary. See, e.g., Wills, 398 Mass. at 776 ; Liptak, 80 Mass. App. Ct. at 80. See also Knowles, 92 Mass. App. Ct. at 628 (crediting police officer's observations as to defendant's lucid condition, despite evidence of drug and alcohol intoxication, in finding statements voluntary).

b. Statement number two. After arriving at the hospital at approximately 4:20 P.M. , the defendant was asked by the attending physician how he was injured. The defendant replied that "he was jumped, he ran away, and then stabbed himself." At that time, he was "somewhat groggy" and suffering from the stab wounds and a collapsed lung. The defendant, however, was awake and conversing, and registered sufficient cognitive awareness. His collapsed lung was unlikely to cause additional disorientation or dizziness, especially given that his vital signs were normal. Moreover, although a toxicology report indicated a blood alcohol level of .17, there was no trace of opiates in his system. The defendant's mental and physical condition, given the circumstances, did not render these statements involuntary. See Brown, 462 Mass. at 627. See also Liptak, 80 Mass. App. Ct. at 81 ("[A]lthough the defendant may have been anxious ... and was suffering from traumatic and painful injuries, he nevertheless made his statements voluntarily").

c. Statement number three. The next challenged statement occurred at approximately 6:40 P.M. In response to hearing a nearby police officer mention to the nurse that the two victims were dead, the defendant allegedly said, "I'm sorry, I did that too." By this time the defendant was in stable condition with improved alertness. He was following commands and answering questions appropriately, registered increased cognitive awareness, and was oriented to person, place, and time. Pain medication had not yet been administered, and the nurse could not discern any odor of alcohol. The facts again permit the motion judge's finding that this statement was made rationally and voluntarily. See Liptak, 80 Mass. App. Ct. at 80-82 (combination of "injury, alcohol, emotional distress, and prescription medication" did not render defendant's statements involuntary); Commonwealth v. Bigley, 85 Mass. App. Ct. 507, 514 (2014) (although intoxicated, "the fact that the defendant was emotional and agitated does not mean he was 'detached from reality' ").

d. Statement number four. Between 7:00 P.M. and 8:00 P.M. , the defendant initiated a conversation with a nursing assistant. The defendant said he was robbed and stabbed while attempting to purchase drugs from two Asian men. According to the defendant, they robbed him of eighty dollars and said they were going to kill him, so the defendant grabbed their knife and started stabbing himself.

The nursing assistant testified that the defendant did not appear "crazy." Rather, they were able to converse and to understand each other. This is consistent with the testimony of other hospital personnel that the defendant was alert, oriented, and able to communicate normally at the time. Thus, despite the significant pain, intoxication, and medication, there is adequate evidence to support the motion judge's conclusion that the statement was voluntary. See, e.g., Wills, 398 Mass. at 776 ; Liptak, 80 Mass. App. Ct. at 81 ; Bigley, 85 Mass. App. Ct. at 514.

e. Statement number five. The last challenged set of statements from July 23, 2010, was made around 8:30 P.M. Detective Felix Figueroa and another officer, being assured by a nurse that the defendant was able to speak with them, first entered the defendant's hospital room at approximately 8:09 P.M. They left shortly thereafter, though, because the defendant appeared too drowsy and distracted by pain to have a productive conversation.

Detective Figueroa returned approximately fifteen minutes later. The nurse repeated that the defendant was fine to talk to the detective, and the detective found the defendant awake, alert, and speaking with family members in his room. The family agreed to let Detective Figueroa speak with the defendant and left the room.

When asked again what happened, the defendant provided a detailed account of the events leading to his injuries. He described (1) attempting to buy drugs from two women at the Westford Street apartment, with eighty dollars provided by an Asian male, and returning with neither money nor drugs; (2) an ensuing altercation between the women and the two Asian men at Westford Street about the money; (3) being stabbed twice by one of the Asian men during the fight; and (4) fleeing the scene and returning to Butman Place, where he stabbed himself repeatedly because he was depressed. Again, there is ample evidence from which the motion judge could conclude that these statements were voluntary.

The defendant was "much more calm" and no longer seemed to be in great pain. He had received opiate-based pain medications at 7:00 P.M. which, consistent with expert medical testimony, appeared to calm the defendant and to assist his ability to focus and to converse, rather than making him irrational or unreliable. Witnesses observing him around that time similarly described the defendant as alert, coherent, and conversational, and the attending nurse and the defendant's own family saw no reason he would be unable to talk with police. Additionally, the defendant had been at the hospital for nearly four hours and was no longer legally intoxicated from the alcohol.

Significantly, by this point the statements themselves indicate a pattern of rational thinking on the defendant's part. Parts of his story changed, but the defendant consistently minimized his culpability, see Liptak, 80 Mass. App. Ct. at 81, while increasingly portraying himself as a victim. In seeking a plausible alibi and attempting to redirect blame, the defendant demonstrated logical reasoning, which is strong evidence that these statements were voluntary. See, e.g., Commonwealth v. Wolinski, 431 Mass. 228, 232 (2000) (false accounts to police "revealed the defendant's rational effort at self-preservation, and ... clearly reflected rational choice"); Bigley, 85 Mass. App. Ct. at 514 (concluding statements were voluntary where defendant "made statements that reflected his awareness of the serious nature of the charges and the potential consequences in terms of his liberty"). Moreover, that the defendant's differing accounts increasingly provided details otherwise corroborated by the record further reveals clear thinking. See Commonwealth v. Wilborne, 382 Mass. 241, 252 (1981) (defendant's "ability to recall the detailed chronology of the events recited in the statement 'belie[d] a person whose mind was befogged by any sort of drug' ").

f. Statement number six. Throughout the early morning hours of July 24, 2010, the defendant was administered more pain medication. Around 8:00 A.M. , he complained of pain and was given another dosage, then felt better and fell asleep shortly thereafter. After the defendant awoke later that morning, he described a similar version of events to the attending nurse as he told to Detective Figueroa the prior evening. He added, however, that during the fight at the Westford Street apartment he was stabbed first by one of the women before he wrestled the knife away and stabbed both of them.

These statements were made around 10:00 A.M. , when the defendant was alert and oriented, coherent, and able to follow commands and to converse normally while recounting his narrative in detail. See Wilborne, 382 Mass. at 252. Although the defendant admitted to stabbing the women in self-defense, this version remains consistent with his continuing attempt to minimize criminal liability and deflect blame. See Wolinski, 431 Mass. at 231-233 ; Liptak, 80 Mass. App. Ct. at 81. As with the previous statements, we discern no error in the motion judge's finding that these statements were voluntary.

g. Statement number seven. Detective Figueroa and another officer returned to interview the defendant at the hospital around 5:40 P.M. on July 25. The parties do not dispute that the defendant's statements at that time were the product of a custodial interrogation, nor that the defendant signed a waiver of his Miranda rights. The defendant, however, argues that the waiver was not voluntary on account of his condition. We disagree.

The interviewing officers testified that the defendant was alert, engaged, and conversational at the time of the waiver. He was calm and collected throughout the interview, responded appropriately to all questions, and appeared to consider his responses before answering. The defendant stated that he understood the seriousness of the situation, and there is no reason to think otherwise given the officers' testimony. See Knowles, 92 Mass. App. Ct. at 628 (judge could credit police observations of defendant's conduct at time of statements). See also Commonwealth v. Ringuette, 60 Mass. App. Ct. 351, 354, S.C., 443 Mass. 1003 (2004) (statements voluntary where defendant "appeared ... sober, coherent, [and] responsive" despite suffering severe withdrawal symptoms and previously ingesting crack cocaine). Moreover, it is significant that when the defendant signed the waiver he had the presence of mind to refuse to have his statements recorded, and that he continued to change his narrative in response to information proffered by the officers. See, e.g., Wolinski, 431 Mass. at 232-233 ; Liptak, 80 Mass. App. Ct. at 81 ; Bigley, 85 Mass. App. Ct. at 514.

Given that the judge was "free to reject the testimony of the defendant's expert" as to the amount or effect of the medications administered and could credit the testimony of the officers, Beland, 436 Mass. at 281, it was not error to conclude that the defendant's waiver was made voluntarily. See Knowles, 92 Mass. App. Ct. at 629 ("With deference to the ... judge's credibility determinations, we have no difficulty concluding that the Commonwealth proved beyond a reasonable doubt that the defendant made a knowing, intelligent, and voluntary waiver").

Judgments affirmed.

      The panelists are listed in order of seniority.

      We set out the background facts to provide context for the reader, but do not rely on them for the purpose of deciding the issues regarding the suppression motion. See, e.g., Commonwealth v. Deramo, 436 Mass. 40, 43 (2002) ; Commonwealth v. Dew, 478 Mass. 304, 309 n.3 (2017).

      Yin and Phouthavong are both of Asian descent.

      The Commonwealth did not proceed on the assault and battery counts.

      With the exception of the third statement, the defendant progressed from (1) self-inflicted wounds caused by depression to (2) self-inflicted wounds caused by a robbery to (3) self-inflicted wounds caused by a robbery and attempted murder by men matching the description of those implicated in the same crime from which the defendant hoped to exculpate himself.

      Approximately one hour after the statements to the attending nurse, the defendant told a doctor that he had been stabbed and had stabbed himself with a kitchen knife. The defendant raises no specific objection on appeal to this bare-bones statement. In any event, the motion judge was justified in finding this statement voluntary for the same reasons he found the statements to the attending nurse voluntary.

      It is unnecessary to determine precisely how much morphine the defendant received in the seven hours leading up to this interview, as the motion judge based his determination on the defendant's appearance and actions, and specifically stated that he found the statements voluntary "even accepting" the amount of morphine argued by the defendant.

      The defendant raises no challenge on appeal to the admissibility of the statements he volunteered at booking.


text:
    COMMONWEALTH v. David ARISTIDE.
    17-P-207
    Appeals Court of Massachusetts.
    Entered: August 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a trial in the Superior Court, a jury found the defendant guilty on seven indictments charging him with cruelty to animals ( G. L. c. 272, § 77 ), one indictment charging fraudulent use of water ( G. L. c. 165, § 11 ), and one indictment charging larceny under $250 ( G. L. c. 266, § 30 ). The jury also found the defendant responsible on a charge of operating a dog kennel without a license ( G. L. c. 140, §§ 137A & 141 ). Based on the evidence at trial, the judge ordered the defendant to pay restitution to the city of Quincy (city) for his fraudulent use of water in the amount of $2,112.21.

On appeal, the defendant argues that (1) the judge's failure to give a specific unanimity instruction as to the cruelty to animals charges created a substantial risk of a miscarriage of justice, (2) he should not have been found responsible for keeping an unlicensed kennel because his conduct was not prohibited by the kennel licensure statute, and (3) the judge's order of restitution for water usage must be vacated because it was based on an arbitrary calculation. We agree that the order of restitution to the city's water department must be vacated. We otherwise affirm the judgments.

Specific unanimity instruction. The defendant contends that the judge erred in not giving a specific unanimity instruction regarding the cruelty to animals indictments and argues that the jurors may have convicted him without agreeing on which specific act constituted the offense charged in each indictment. See Commonwealth v. Shea, 467 Mass. 788, 798 (2014). The defendant did not request such an instruction, nor did he object to the instructions as given. We therefore review the absence of such instruction for a substantial risk of a miscarriage of justice. See generally Commonwealth v. Keevan, 400 Mass. 557, 566-567 (1987).

"When a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required." Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 905 (1995). Here, the Commonwealth provided evidence that the defendant was guilty of seven charges of animal cruelty in relation to seven dogs seized from the 23-25 Kidder Street basement. The testimony at trial indicated that the defendant repeatedly abused his dogs by failing to provide each of the seven dogs with proper food, drink, shelter, and a sanitary environment. The defendant's overlapping conduct in which he exposed the dogs to sharp objects, untreated injuries, excrement-covered floors, and insufficient food, water, and natural light constituted one unbroken criminal episode. Thus, the facts in this case demonstrated a continuous course of conduct, and the absence of a specific unanimity instruction did not create a substantial risk of a miscarriage of justice. See Keevan, 400 Mass. at 567.

Operating a kennel without a license. A "kennel" is defined by statute as "a pack or collection of dogs on a single premise, including a commercial boarding or training kennel, commercial breeder kennel, domestic charitable corporation kennel, personal kennel or veterinary kennel." G. L. c. 140, § 136A, as appearing in St. 2012, c. 193, § 4. Kennel licenses are governed by G. L. c. 140, § 137A(a ), as appearing in St. 2012, c. 193, § 4, which provides that "[a] person maintaining a kennel shall obtain a kennel license." Failure to obtain a kennel license may result in a civil penalty pursuant to G. L. c. 140, § 141.

Evidence at trial was uncontroverted that the defendant did not possess a kennel license for any dogs kept at the 23-25 Kidder Street property. The defendant argues for the first time on appeal that the basement where he kept the dogs was not a "single premise" under G. L. c. 140, § 136A, because 23-25 Kidder Street was once a two-family home. We reject the defendant's extremely restrictive reading of the statute where prior cases have interpreted "single premise" to include vast swaths of land and multiple distinct dwellings. See, e.g., Mioduszewski v. Saugus, 337 Mass. 140, 141 (1958) (ten to twelve acres of land); Hume v. Building Inspector of Westford, 355 Mass. 179, 180 (1969) (one and one-third acres of land); Sturbridge v. McDowell, 35 Mass. App. Ct. 924, 924 (1993) (eighty-two acres of land). Here, the 23-25 Kidder Street basement was undivided and was at the time unconnected to the aboveground portion of the abandoned two-family home. Evidence at trial showed that the defendant maintained a personal kennel by keeping seven dogs over the age of three months on the same premises. The evidence was sufficient to support the finding that the defendant was responsible on the charge of violating G. L. c. 140, §§ 137A and 141, by failing to obtain a kennel license.

Restitution. We review a judge's restitution order for abuse of discretion or other error of law. See Commonwealth v. McIntyre, 436 Mass. 829, 836 (2002). A judge considering restitution must first "determine the amount of the victim's actual economic loss causally connected to the defendant's crime." Commonwealth v. Henry, 475 Mass. 117, 121 (2016). "Restitution may be ordered only for those economic losses adequately documented by the victim and established by the Commonwealth," and "[t]here must be a sound basis in the evidence for the calculation." Commonwealth v. Buckley, 90 Mass. App. Ct. 177, 184 (2016). "If the record reveals an arbitrary method of determining the amount of restitution, the order cannot stand." Commonwealth v. Nawn, 394 Mass. 1, 7 (1985).

Here, the calculation of restitution in the amount of $2,112.21 was based on a bill from the city's "[s]ewer, [w]ater, [d]rain [d]epartment" that was admitted in evidence. The bill provides a total amount due, but does not provide an explanation of how the total was calculated. Furthermore, testimony from the city's chief plumbing and gas inspector suggested that there was no way to measure how much water the defendant used at the 23-25 Kidder Street premises after 2007. Even if the amount listed on the bill was the result of an estimate of the defendant's use over the relevant time, the record does not reveal the method used for the estimate or the causal relationship to the defendant's crime. Accordingly, the Commonwealth failed to meet its burden to prove the amount of the city's loss by a preponderance of the evidence, and that portion of the order of restitution must be vacated. See Commonwealth v. Casanova, 65 Mass. App. Ct. 750, 757 (2006).

Conclusion. The portion of the order of restitution in the amount of $2,112.21 to be paid to the city's water department is vacated. The judgments are otherwise affirmed.

So ordered.

Vacated in part; affirmed in part.

      The jury found the defendant not guilty on five additional indictments charging him with cruelty to animals.

      The judge did not conduct a separate restitution hearing.

      The judge also ordered the defendant to pay restitution of $36,260 to the city's animal shelter.

      A personal kennel is defined as "a pack or collection of more than 4 dogs, 3 months old or older, owned or kept under single ownership, for private personal use; provided, however, that breeding of personally owned dogs may take place for the purpose of improving, exhibiting or showing the breed or for use in legal sporting activity or for other personal reasons; provided further, that selling, trading, bartering or distributing such breeding from a personal kennel shall be to other breeders or individuals by private sale only and not to wholesalers, brokers or pet shops; provided further, that a personal kennel shall not sell, trade, barter or distribute a dog not bred from its personally-owned dog; and provided further, that dogs temporarily housed at a personal kennel, in conjunction with an animal shelter or rescue registered with the department, may be sold, traded, bartered or distributed if the transfer is not for profit." G. L. c. 140, § 136A, as appearing in St. 2012, c. 193, § 4.

      The defendant does not appeal from the order of restitution in the amount of $36,260 to the city's animal shelter.


text:
    COMMONWEALTH v. Michael TOMASO.
    17-P-535
    Appeals Court of Massachusetts.
    Entered: August 23, 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 on a correction officer. See G. L. c. 127, § 38B(b ). The central issue in the case was whether the defendant acted in self-defense. On appeal, the defendant contends that the judge erred in denying his request to instruct the jury that they could consider evidence of alleged threats or specific acts of violence committed by the victim against him on the issue whether he was reasonably afraid for his safety. See Instruction 9.260 and Supplemental Instruction 7 of the Criminal Model Jury Instructions for Use in the District Court (2009), and note 3, infra. The defendant also claims that the judge improperly limited the jury's consideration of this evidence to issues of the witnesses' bias and motive to testify. We affirm.

Background. 1. Facts. The jury could have found the following facts. At the time of the altercation upon which the conviction is based, the defendant was civilly committed to the Massachusetts Treatment Center, at which the victim, Manuel Baptiste, was employed as a correction officer. At approximately 7:20 A.M. on December 24, 2013, Baptiste saw the defendant out of his cell and ordered him to return. The defendant refused. Baptiste approached the defendant, who was retrieving two cups of coffee from a microwave. The defendant then threw a cup of hot coffee at Baptiste, burning his arm. As the defendant began to throw the second cup, Baptiste took hold of the defendant's elbow. The defendant punched Baptiste in the face, and a fight ensued. Baptiste managed to wrestle the defendant to the ground, but he could not restrain him. During the struggle, the defendant clawed and scratched at Baptiste's eyes, and Baptiste bit the defendant's finger. The fight continued until other officers intervened and pulled the men apart. Baptiste suffered a number of injuries, including a cut lip, a hole in his retina, a scratched cornea, and torn cartilage in his knee.

The defendant testified at trial and related a different version of events. He claimed that he was helping his elderly roommate out of the cell when he stopped to get water for coffee. As he was returning to his cell, Baptiste "impetuously" swatted the cup of water out of his hand. Baptiste then took the defendant by the elbow and moved him out of the view of the cameras, where he slammed the defendant's head against a window and pulled him to the ground. At this point, with Baptiste on top of him, the defendant was fearful of being suffocated and he fought back.

The defendant also testified about his prior history with Baptiste. On direct examination, he claimed that he had several "prior run-ins" with Baptiste. As the defendant described it, Baptiste would "shadow" him as he walked to and from his cell and did "things" to his personal property in order to "shame or humiliate" him. The defendant could not specify when any of these incidents took place, but stated that they were part of a "continuum." The defendant testified that none of the prior encounters with Baptiste involved physical violence. However, on cross-examination, the defendant stated that Baptiste "hit my hand a few times and knocked food out of it as he br[ought] food to the cell." He also testified that Baptiste bit him on the finger. The defendant stated that this only happened once, and he could not recall when.

2. Jury instructions. Defense counsel requested an instruction on self-defense. The Commonwealth did not object, but requested that the judge also give supplemental instructions on reasonable apprehension, excessive force, and the defendant as first aggressor. See Supplemental Instructions 1, 3, and 6 of Instruction 9.260 of the Criminal Model Jury Instructions for Use in the District Court (2009). Defense counsel's objection to the supplemental instructions regarding excessive force and the defendant as first aggressor was overruled. Trial counsel then asked the judge to "consider giving [supplemental] instruction number seven about the victim's prior threats and violence towards the Defendant." The judge denied the request. Relying on the Supreme Judicial Court's decision in Commonwealth v. Adjutant, 443 Mass. 649, 665-666 (2005), the judge stated: "That has to be pleaded. I heard nothing about it. I'm not going to do that. Your objection's noted to that as well." After some further discussion, the judge stated: "I will say something about it in terms of bias and motive, but I'm not going to do anything about prior acts under Adjutant and the cases that follow." There was no objection.

The judge proceeded in his final charge to instruct the jury on self-defense, reasonable apprehension, excessive force, and the defendant as first aggressor. Before giving the model instruction on self-defense, the judge told the jury that "[i]t is for [them] to decide whether or not there is any evidence of self-defense in the case," and that, if they decide that such evidence is present, "the Commonwealth must prove beyond a reasonable doubt that the Defendant did not act in self-defense." The judge noted that it was for the jury to decide whether there was a first aggressor and who it was, and he also instructed the jury with respect to the credibility of witnesses. Specifically, the judge informed the jury that they "may ... consider whether or not [the witness] displays any bias in testifying and whether he or she has any interest in the outcome of the case." Referring to the defendant's testimony about prior incidents with Baptiste, the judge stated:

"And speaking of that, I did allow evidence in from one of the witnesses [the defendant], about previous incidents that he suggests occurred between him and Officer Baptiste, Correctional Officer Baptiste. I do not allow you to consider whether those are true or not, but you may consider that evidence if you want to on the issue of whether or not someone has a bias or a motive to testify in a particular way. And that could be any one of the witnesses in the case."

There were no objections to the judge's instructions.

Discussion. 1. Victim's prior threats or acts of violence. The primary thrust of the defendant's argument is that the judge misinterpreted Adjutant and the notice requirements imposed by that case when he denied the defendant's request for an instruction on Baptiste's prior threats and violence against him. We agree with the defendant that the judge's reliance on Adjutant was misplaced.

Before Adjutant was decided, juries were permitted to consider evidence of a victim's prior acts of violence or reputation for violence, provided that the defendant knew about such acts or reputation at the time of the altercation. See Commonwealth v. Fontes, 396 Mass. 733, 735 (1986). In Adjutant, supra at 665-666, the Supreme Judicial Court "announced a new rule granting trial judges the discretion in self-defense cases to admit prior bad act evidence of victims -- even if unknown to the defendant -- for purposes of illuminating the identity of the first aggressor." Commonwealth v. Pring-Wilson, 448 Mass. 718, 736 (2007). "A defendant who intends to introduce evidence of the victim's specific acts of violence to support a claim that the victim was the first aggressor must provide notice to the court and the Commonwealth of such intent and of the specific evidence he intends to offer." Adjutant, supra at 665. See Mass.R.Crim.P. 14(b)(4), as amended by 463 Mass. 1504 (2012). Here, Baptiste's alleged prior acts of violence were known to the defendant. Consequently, the new rule announced in Adjutant is not applicable, and the defendant was not required to provide pretrial notice as a prerequisite to receiving the instruction at issue.

Despite the improper rationale for the judge's ruling, the question remains whether there was a basis for instructing the jury as the defendant requested and, if so, whether the judge's decision not to give the instruction constitutes prejudicial error warranting a new trial. See Commonwealth v. Rosario, 460 Mass. 181, 187 (2011) ("requested jury instructions that are denied by the trial judge are preserved on appeal"). We conclude that the defendant was not entitled to the requested instruction because, as defense counsel conceded at oral argument, there was no evidence that Baptiste previously had threatened the defendant with violence. Contrast Commonwealth v. Edmonds, 365 Mass. 496, 499 (1974). While the defendant did testify to instances of Baptiste's violent conduct, he could not identify a "specific" instance where Baptiste allegedly knocked food out of his hand and his testimony did not support an inference that the incidents to which he testified were "recent." Commonwealth v. Fontes, supra at 735-736.

Even if we were to conclude otherwise, the defendant's challenge to his conviction fails because the alleged error was nonprejudicial. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) (quotation omitted) ("An error is nonprejudicial only if ... the conviction is sure that the error did not influence the jury, or had but very slight effect"). Evidence of Baptiste's prior conduct toward the defendant was not offered or relied upon to demonstrate that the defendant had a reasonable fear for his safety on the day of the altercation. See Commonwealth v. Fontes, supra at 737 (evidence of prior violent acts by the victim admissible when relevant to "what was in the defendant's mind when he confronted the victim"). Instead, the defendant testified that, in light of his "prior run-ins" with Baptiste, getting "the hell out of [Baptiste's] way" was what was in his mind on that day. This point was driven home during closing arguments, when defense counsel urged the jury to credit the defendant's version of events based on his testimony regarding his prior history with Baptiste. Where, as here, the critical issue for the jury was to determine which version of the altercation was credible, and where they were properly instructed on self-defense and how to assess the credibility of witnesses, the failure to give the requested instruction had, at best, "very slight effect" on the jury. Commonwealth v. Flebotte, supra.

2. Remaining claims. Next, the defendant argues that the judge erred by limiting the jury's consideration of his prior history with Baptiste to "the issue of whether or not someone has a bias or a motive to testify in a particular way." Because there was no objection to this instruction, we review to determine if there was an error and, if so, whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

We agree with the defendant that the challenged instruction was flawed. However, the error did not create a substantial risk of a miscarriage of justice in the context of the evidence in the case and the instructions as a whole because, as previously noted, the central issue in the case was whether the defendant acted in self-defense. To resolve that issue, the jury necessarily had to determine who was telling the truth, Baptiste or the defendant. The judge allowed the jury to consider the evidence of prior incidents to resolve this question. In such circumstances, we discern no risk of a miscarriage of justice.

The defendant's final argument is that the judge erroneously omitted the first sentence of the model instruction on self-defense from his final charge and this omission resulted in an impermissible shift of the burden of proof. See Instruction 9.260 of the Criminal Model Jury Instructions for Use in the District Court (2009) ("A person is allowed to act in self-defense"). This argument does not require extended discussion. While the judge omitted the sentence in question, he correctly instructed the jury on the Commonwealth's burden to prove that the defendant did not act in self-defense beyond a reasonable doubt.

Judgment affirmed.

      The defendant was found not guilty of assault and battery by means of a dangerous weapon (hot coffee).

      "1. Reasonable apprehension":
      "A person cannot lawfully act in self-defense unless he (she) is attacked or is immediately about to be attacked. The Commonwealth may prove that the defendant did not act in self-defense by proving beyond a reasonable doubt that there was no overt act -- either words, a gesture, or some other action -- that gave rise to a reasonable belief of attack or immediate danger."
      "3. Excessive force":
      "A person cannot lawfully act in self-defense if one uses more force than necessary in the circumstances to defend oneself. How much force is necessary may vary with the situation. Exactness is not always possible. You may consider whether the defendant had to decide how to respond quickly under pressure. The Commonwealth may prove the defendant did not act in self-defense by proving beyond a reasonable doubt that the defendant used clearly excessive and unreasonable force. You may also consider any evidence about the relative size or strength of the persons involved, where the incident took place, (and what kind of weapons, if any, were used), among other things."
      "6. Defendant as original aggressor":
      "Generally, the original aggressor has no right of self-defense unless he (she) withdraws from the conflict in good faith and announces his (her) intention of abandoning the fight."

      The proposed instruction tracked verbatim the District Court's model jury instruction on a victim's prior threats and violence against the defendant. See Supplemental Instruction 7 of Instruction 9.260 of the Criminal Model Jury Instructions for Use in the District Court (2009). It states:
      "In considering who was being attacked by whom, you may take into account any threats of violence made by (the alleged victim) against the defendant and whether, as the defendant contends, (the alleged victim) was trying to carry out such threats during this incident. If the defendant was aware, at the time of the incident, that such threats had been made, you may also consider them in determining whether the defendant was reasonably afraid for his (her) own safety. You may also consider any specific, recent acts of violence that were committed by (the alleged victim) against the defendant and that were known to the defendant, on the issue of whether the defendant was reasonably afraid for his (her) own safety."

      The defendant could not identify a specific date or time frame over the "continuum" of his commitment when Baptiste allegedly knocked food out of his hand or bit his finger. Even if the judge had applied the correct analysis, he would not have abused his discretion in concluding that this evidence was not recent enough to justify giving the defendant's requested instruction.

      In light of the judge's specific instruction that it was for the jury to decide whether there was a first aggressor and who it was, we are not persuaded by the defendant's assertion that the judge's failure to give the requested instruction deprived him of the right to present a meaningful defense.

      To the extent that the defendant claims that the judge's limiting instruction violated Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979) ("[t]he judge shall inform counsel of his proposed action upon requests prior to their arguments to the jury"), we note that the judge specifically stated during the charge conference that he would limit the jury's consideration of evidence regarding the defendant's prior history with Baptiste to the issues of bias and motive.


text:
    COMMONWEALTH v. Eddie L. CARREKER.
    17-P-699
    Appeals Court of Massachusetts.
    Entered: August 23, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Background. After a jury trial, the defendant, Eddie L. Carreker, was found guilty of kidnapping, see G. L. c. 265, § 26, assault and battery, see G. L. c. 265, § 13A(a ), and assault and battery on a police officer, see G. L. c. 265, § 13D. A panel of this court affirmed the judgments on direct appeal. See Commonwealth v. Carreker, 89 Mass. App. Ct. 1111 (2016) (rule 1:28 decision). On direct appeal, the defendant argued, in part, that his trial counsel was ineffective for failing to inform him that kidnapping is a general intent crime. The panel rejected that claim, stating that "the defendant has not shown indisputably, on this record," that he was prejudiced by trial counsel's erroneous understanding of the elements of the crime of kidnapping.

The defendant subsequently filed a motion for a new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), in which he again alleged that trial counsel was ineffective for failing to inform him prior to trial that kidnapping is a general intent crime. The defendant argued that he was prejudiced by trial counsel's failure because he would have pleaded guilty to the crime of kidnapping had he known that it was a general intent crime. The defendant and trial counsel each filed an affidavit in support of the defendant's motion for a new trial. In paragraphs numbered four and five of his affidavit, the defendant stated, "4. I did not want to plead guilty to kidnapping because I believed I was innocent of kidnapping. 5. I believed I was innocent of kidnapping because I did not intend to kidnap the child."

The motion judge denied the defendant's motion after concluding that the disposition of that ineffective assistance claim on direct appeal estopped the defendant from making the same ineffective assistance argument in his subsequent motion for a new trial. The motion judge went on to conclude, after crediting certain statements made in the affidavits, that the defendant did not have a valid ineffective assistance of counsel claim on the basis that the defendant was not given incorrect legal advice. The motion judge in his order did not make explicit findings as to the above-quoted paragraphs four and five of the defendant's affidavit in deciding the defendant's motion.

Discussion. 1. Direct estoppel. The defendant argues that the motion judge erroneously concluded that he was directly estopped from raising the ineffective assistance of counsel claim in his motion for a new trial. We agree.

Direct estoppel applies to bar a defendant from relitigating an issue in a motion for a new trial where a defendant "raises no new factual or legal issue in [his or] her rule 30(b) motion." Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005). By submitting, in support of his motion for a new trial, his own affidavit and that of trial counsel which contain facts not previously presented, there are new factual issues relevant to the defendant's claim that he received ineffective assistance of counsel. Direct estoppel thus is not a bar to the litigation of the defendant's ineffective assistance claims in this proceeding. The question, therefore, is whether the defendant has demonstrated, as required by Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), that he was prejudiced by counsel's failure to advise him of the elements of the crime of kidnapping. See Commonwealth v. Marinho, 464 Mass. 115, 128-129 (2013). See also Commonwealth v. Zinser, 446 Mass. 807, 812 (2006). Of course, whether those affidavits are to be credited, in whole or in part, and whether a hearing is required are left to the discretion of the motion judge, who was also the trial judge.

2. Ineffective assistance of counsel. The record indicates that the first prong of Saferian, regarding the substandard performance of counsel, was met due to trial counsel's misunderstanding of the elements of kidnapping as late as the first day of trial. See Saferian, supra (first requirement of ineffective assistance claim is "behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer").

We must next determine whether the defendant was prejudiced by trial counsel's deficient performances. See Marinho, supra. "To establish prejudice on account of counsel's deficient performance in the plea context, the defendant must show a reasonable probability that the result of a plea would have been more favorable than the outcome of the trial." Id. at 129. "In particular, the defendant must demonstrate a reasonable probability that the prosecution would have made an offer, that the defendant would have accepted it, and that the court would have approved it." Ibid. See Missouri v. Frye, 566 U.S. 134, 147-148 (2012) ; Lafler v. Cooper, 566 U.S. 156, 163-164 (2012).

After reviewing the record before us, we conclude that it is necessary to remand the case to the Superior Court for the motion judge to determine whether the defendant was prejudiced by trial counsel's deficient performance. Proper evaluation of prejudice requires the motion judge to resolve the factual question whether the defendant, had he been properly advised that kidnapping, as charged in this instance, is a general intent crime, would have agreed to plead guilty prior to trial. See Marinho, supra. Findings must be made by the judge on the credibility of paragraphs four and five of the defendant's affidavit and on the aforementioned factors set forth in Marinho, see ibid., as well as in Lafler. See Lafler, supra. See also Director of the Div. of Employment Security v. Mattapoisett, 392 Mass. 858, 862 n.5 (1984) ("Appellate courts are not fact finders"). Here, the judge did not explicitly state that he discredited paragraphs four and five of the defendant's affidavit, and thus on the record before us we are unable to discern whether the judge made the credibility determinations needed to support a denial of the defendant's motion.

Conclusion. Accordingly, we vacate the order denying the motion for a new trial and remand the case to the Superior Court for further proceedings consistent with this memorandum and order.

So ordered.

Vacated; remanded.

      After making those findings, the motion judge may exercise his discretion by denying or allowing the motion. We accordingly decline to retain jurisdiction over the case.


text:
    C.O. v. D.S.
    17-P-1161
    Appeals Court of Massachusetts.
    Entered: August 23, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff obtained a harassment prevention order (HPO) against the defendant pursuant to G. L. c. 258E. On appeal, the defendant claims that the judge erred in not (1) transferring the case to Housing Court; (2) granting his motion to dismiss; (3) allowing him to give a closing argument and submit proposed findings of facts and conclusions of law; (4) making findings on the record; (5) denying the plaintiff's petition due to insufficient evidence; and (6) disregarding his actions because they were constitutionally protected speech. Concluding that the evidence was insufficient to support its issuance, we vacate the HPO.

Sufficiency of the evidence. To obtain an HPO pursuant to G. L. c. 258E, a plaintiff must demonstrate harassment. G. L. c. 258E, § 3(a ). The statute defines harassment in pertinent part as "3 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 does in fact cause fear, intimidation, abuse or damage to property." G. L. c. 258E, § 1, inserted by St. 2010, c. 23. Malicious is further defined as "characterized by cruelty, hostility or revenge." Ibid.

The plaintiff initially obtained an ex parte HPO, which was extended for one year after a hearing at which both the plaintiff and the defendant were present. At the extension hearing, the judge, who did not make findings, took testimony on the following events. On July 8, 2017, the defendant distributed flyers to buildings nearby the plaintiff's condominium building advising dog owners to maintain control over their dogs. These flyers, which referenced "recent Court proceedings and issuance of an injunction," stated that dogs must be kept on leashes and not be allowed to urinate on plants and flowers in that area. Those flyers did not identify either the plaintiff, her husband, or their dog.

At some point the plaintiff installed a security camera, which faced the walkway between the defendant's and the plaintiff's condominium buildings. On July 12 and 13, 2017, it captured the defendant stepping onto the outside entryway of the plaintiff's multiunit condominium building and departing within approximately one and one-half to two minutes. On July 14, 2017, the security camera also captured the defendant taking photographs of the security camera. Last, the plaintiff complained that on July 27, 2017, the defendant followed a few feet behind her on their walkway in violation of the ex parte HPO.

The defendant countered that he went to the plaintiff's building on July 12 and 13 to contact one of the plaintiff's condominium association trustees to protest the plaintiff's installation of a security camera that pointed toward his condominium. The July 14 footage of the defendant photographing the security camera supported this explanation, and the judge did not state that he was rejecting the defendant's explanation. The defendant also explained that his walkway encounter with the plaintiff in alleged violation of the HPO was accidental owing to the narrowness of the walkway where their condominium buildings were located, and that at that time, "not a word was exchanged and [he] just left."

Based on this evidence, we cannot find, as we must, that the defendant committed three wilful and malicious acts against the plaintiff. Assuming arguendo that the defendant's presence on the walkway on July 27 at the same time as the plaintiff and without his immediate retreat, constituted one malicious act under the statute, in the circumstances presented here, the other acts the plaintiff complains of do not.

First, the flyers the defendant posted were not directed at the plaintiff. They pertained to the proper curbing of dog waste, went to every neighborhood building, and did not specify the plaintiff, her husband, or their dog. Cf. Seney v. Morhy, 467 Mass. 58, 63 (2014) (electronic mail message written and sent by defendant to third party describing plaintiff "in unflattering terms ... was not directed at [plaintiff]").

Second, the July 12-14 visits to the plaintiff's condominium building, while slightly more concerning, also do not rise in this case to wilful or malicious acts directed at the plaintiff. The defendant gave plausible explanations for his presence at the outside entryway of the plaintiff's multiunit condominium building; these explanations were supported by the record and the judge did not state that he rejected them. Therefore, in these narrow circumstances, we cannot conclude that the HPO was supported by three malicious or wilful acts directed at the plaintiff. Accord O'Brien v. Borowski, 461 Mass. 415, 430 (2012) (where judge does not make findings and record alone does not support inference of harassment, HPO cannot stand). Accordingly, we vacate the HPO.

Remaining claims. Concluding as we do, we need not reach the defendant's other claims of error.

Harassment prevention order vacated.

      The plaintiff's and the defendant's residences, located in separate buildings, are diagonally across from each other -- separated only by a narrow, private walkway.

      Deciding as we do, we need not address whether the flyers are constitutionally protected speech. See Bleich v. Maimonides Sch., 447 Mass. 38, 45 n.14 (2006) (cases should be decided first on questions of statutory construction or general law before being decided on constitutional questions).

      Since, based on the record before this panel, the HPO has expired, remanding for further proceedings is pointless. See O'Brien, 461 Mass. at 430.


text:
    COMMONWEALTH v. Eliezer MONTANEZ.
    17-P-402
    Appeals Court of Massachusetts.
    Entered: August 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Eliezer Montanez, appeals from convictions after trial by a Superior Court jury of attempted extortion, G. L. c. 265, § 25, and receiving stolen property, G. L. c. 266, § 60. Concluding that the motion judge properly denied the defendant's motions to suppress a detective's eyewitness identification of him and to suppress statements made in an interview at the police station, and further discerning no error in sentencing, we affirm.

1. Motion to suppress identification. On appeal from a decision denying a motion to suppress, "[w]e accept all of the judge's factual findings" unless clearly erroneous, Commonwealth v. Galipeau, 93 Mass. App. Ct. 225, 226 (2018), and we "review without deference the judge's application of the law to the facts as found." Commonwealth v. Johnson, 473 Mass. 594, 602 (2016).

An out-of-court identification obtained by law enforcement must be suppressed where the defendant demonstrates that "the procedures employed were so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law." Commonwealth v. Cavitt, 460 Mass. 617, 632 (2011), quoting from Commonwealth v. Miles, 420 Mass. 67, 77 (1995). Generally, one-on-one showup identifications "are viewed as inherently suggestive." Commonwealth v. Pearson, 87 Mass. App. Ct. 720, 723 (2015), quoting from Commonwealth v. Austin, 421 Mass. 357, 361 (1995).

Here, contrary to the defendant's argument, the motion record does not establish the existence of a one-on-one showup identification of the defendant by Detective Nathan Bowler at the police station. Rather, the identification was the product of an unplanned encounter; there was no evidence that anything was done by the police to direct Detective Bowler to identify or even notice the defendant while Detective Bowler happened to be sitting at his desk. See Cavitt, 460 Mass. at 632 (no one-on-one showup where identifying witness "simply looked around as he exited the detective bureau and observed the defendant's photograph on [a] screen"). There is no evidence that anyone told Detective Bowler the defendant was coming in to the station or was even a suspect; he was never asked to identify the defendant as the driver nor was there any plan or reason for him to do so at the time. Detective Bowler was familiar with the defendant, see Johnson, 473 Mass. at 601-602, and the motion judge could credit that he initially recognized the defendant as the driver and then later identified him by name without improper influence. See Commonwealth v. Neves, 474 Mass. 355, 360 (2016), quoting from Commonwealth v. Moon, 380 Mass. 751, 756 (1980) ("The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses"). Cf. Commonwealth v. Rivers, 93 Mass. App. Ct. 120, 125 (2018) (rejecting defendant's claim that victim's review of police report naming defendant as one of assailants influenced victim's memory of who attacked him). Viewing the totality of the circumstances, see Galipeau, 93 Mass. App. Ct. at 227, the identification was not "the product of unnecessarily suggestive police procedures." Cavitt, supra.

For that reason, the identification was admissible. See Cavitt, 460 Mass. at 632, quoting from Commonwealth v. Watson, 455 Mass. 246, 251 (2009) ("Where an identification procedure is not impermissibly suggestive, a pretrial identification is admissible without any further showing"). Any question as to its reliability -- including Detective Bowler's recognition of the defendant as the driver despite his initial description of the suspects as three "dark-skinned or African-American males" -- was for the jury to consider at trial. See Commonwealth v. Meas, 467 Mass. 434, 443 (2014) (conflicting testimony as to suspect's identity "was a matter to be pursued at trial and one for the jury to resolve"); Galipeau, 93 Mass. App. Ct. at 230 ("[A]ny equivocation in [the witness's] initial identification went to the weight of the evidence, not its admissibility"). The motion judge properly denied suppression of the identification.

2. Motion to suppress statements. In reviewing the denial of the defendant's motion to suppress his statements to Detective Sergeant Joseph Murray at the police station, we likewise "accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of [her] ultimate findings and conclusions of law.' " Commonwealth v. Cawthron, 479 Mass. 612, 616 (2018), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004).

a. Miranda warning and custodial interrogation. A defendant is not entitled to a Miranda warning except when in custody. See Commonwealth v. Vincent, 469 Mass. 786, 795 (2014) ; Cawthron, 479 Mass. at 616-617. "To determine whether a defendant was subjected to custodial interrogation, 'the court considers several factors: (1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that that person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest.' " Cawthron, supra at 617-618, quoting from Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). "[I]nability to leave may support a finding of custody," but is not sufficient by itself to establish custody. Id. at 623.

Here, it is undisputed the defendant was not in custody when the interview with Detective Sergeant Murray began. The defendant argues the interview became custodial after Detective Sergeant Murray told the defendant that "he was not under arrest and that if he was truthful to me about who had shot at the police officer, that he would not be arrested that night." Detective Sergeant Murray did not make an impermissible ultimatum. Rather, Detective Sergeant Murray promised the defendant he would not be arrested that night if he was truthful; Detective Sergeant Murray did not say the defendant would be arrested if he did not talk or confess. There is a logical discrepancy between the two. In the latter, the defendant must speak or be arrested. Detective Sergeant Murray's actual statement informed the defendant that he would not be arrested that night as a result of his truthful statements, even if they were inculpatory, not that such statements were necessary to leave freely. Compare Commonwealth v. Coleman, 49 Mass. App. Ct. 150, 155-156 (2000) (release conditioned on defendant's confession created custodial environment), with Commonwealth v. Morse, 427 Mass. 117, 127 (1998) (officer's "statement that the defendant 'be truthful' was noncoercive"), and Commonwealth v. Kirwan, 448 Mass. 304, 313 (2007) ("The possibility that an incriminating response might be forthcoming does not necessarily elevate the nature of questioning to a custodial level").

This is not just semantics, but rather a reflection of the context of the interview. Detective Sergeant Murray made his statement in response to the defendant's initial request for the detective to explain what was going to happen to him. See Commonwealth v. Libby, 472 Mass. 37, 46 (2015), quoting from Commonwealth v. Molina, 467 Mass. 65, 74 (2014) (officer "explained to the defendant the focus of his questioning and revealed some degree of suspicion" but "the 'exchange was explanatory rather than accusatory' " in noncustodial interview). Although the defendant was alerted that he could be charged for his involvement, the focus of the investigation was not on the defendant, because the police were primarily looking for the shooter. The knowledge that the police had no intention to arrest the defendant that night unless he lied would naturally lead the defendant to believe he was not in custody. Contrast Coleman, 49 Mass. App. Ct. at 155 (police "unmistakably and forcefully conveyed" that defendant "was the prime suspect" during interrogation and he understood "[h]is 'freedom' was thus threatened and limited"). Cf. Libby, supra (interview's focus on defendant as primary suspect was indicative he would not feel free to leave, but was not enough to justify finding of custody).

Indeed, the defendant was expressly told he was not under arrest. See Groome, 435 Mass. at 213 (defendant's "fear that he might be in custody" addressed when told he was not being arrested by police officer); Libby, 472 Mass. at 46, quoting from Groome, supra at 215 ("To whatever extent the interview may have led a reasonable person to think he or she was not free to leave, 'any such mistaken impression was dispelled by [the officer's] correct explanation of the defendant's actual [noncustodial] status' "). This would only be reinforced by the fact that the defendant was never handcuffed or otherwise constrained at any time by the police that night. See Cawthron, 479 Mass. at 623. Accord Commonwealth v. Bermudez, 83 Mass. App. Ct. 46, 51 (2012), quoting from California v. Beheler, 463 U.S. 1121, 1125 (1983) ("Custody for purposes of Miranda attaches where there is a 'formal arrest' or a 'restraint of movement akin to formal arrest' "). He came to the police station voluntarily, was treated courteously and interviewed calmly and casually, and was given a ride home by officers instead of being arrested. See, e.g., Libby, supra at 47 (noncustodial interview where defendant went to police station voluntarily, was told he was not in custody, was interviewed informally, and "left the police station without hindrance"); Commonwealth v. Woollam, 478 Mass. 493, 506-507 (2017) (informal and short interview where defendant arrived voluntarily and "both he and the detective spoke in calm, even tones" supported finding defendant was not in custody during questioning).

In short, the circumstances surrounding Detective Sergeant Murray's statement to the defendant about speaking truthfully "do not demonstrate an environment 'so dominated by the police that a reasonable person would perceive that his liberty was restrained to a degree associated with a formal arrest.' " Libby, 472 Mass. at 47, quoting from Kirwan, 448 Mass. at 312. See Cawthron, 479 Mass. at 624 ("Because we conclude that the environment was noncoercive ..., the fact that the defendants were not free to leave does not transform the stops into custodial interrogations where the other Groome factors weigh against custody"). Accordingly, the defendant was not entitled to Miranda warnings.

b. Voluntariness. "Where a defendant makes statements to the police while 'not in custody, we focus solely on the question whether his statements were voluntary.' " Libby, 472 Mass. at 48, quoting from Molina, 467 Mass. at 75. "The test for voluntariness of a defendant's statement is 'whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.' " Rivers, 93 Mass. App. Ct. at 126, quoting from Commonwealth v. McCowen, 458 Mass. 461, 471 (2010). There is nothing in the interview to suggest that occurred in this case.

Stating that the defendant would not be arrested that night if he spoke truthfully was permissible under the circumstances. "[A]n officer is not prohibited from 'suggest[ing] broadly that it would be "better" for a suspect to tell the truth,' " Commonwealth v. Santana, 477 Mass. 610, 619 (2017), quoting from Commonwealth v. Tremblay, 460 Mass. 199, 209 (2011), and Detective Sergeant Murray's assurance was not combined with misleading comments or any trickery or deception. Compare Commonwealth v. Baye, 462 Mass. 246, 257 (2012) (multiple misrepresentations of evidence against defendant and gravity of crime through ten-hour police interrogation required suppression of statements), and Commonwealth v. DiGiambattista, 442 Mass. 423, 439 (2004) ("combination of trickery and implied promises" of leniency "recognized as potentially coercive to the point of making innocent people confess to crimes"), with Libby, 472 Mass. at 48 (officer "did not engage in any trickery, and this was not a case in which the police obtained a confession by materially misrepresenting the defendant's fundamental constitutional rights"). Indeed, the defendant was truthfully advised that he could be charged and was allowed to leave freely following the interview. Contrast Rivers, 93 Mass. App. Ct. at 126-127 (telling defendant "that coming forward would make him 'very highly likely to avoid being charged with a felony' ... amounted to a prohibited assurance").

The defendant's argument that his confession was coerced by the earlier promise of witness protection is similarly unpersuasive. Any reference by Detective Sergeant Murray to witness protection in regard to the defendant concerned an unrelated crime that occurred years earlier -- and was not discussed or even mentioned during the instant interview. Accordingly, there is nothing in the record to suggest this had any coercive effect on the defendant's statements. See Commonwealth v. Burbine, 74 Mass. App. Ct. 148, 154 (2009) (no evidence of promises or other inducements to support ruling that statement was involuntary). Accordingly, the motion judge properly denied the defendant's motion to suppress.

3. Sentencing. We may "review a sentence to determine whether it is unconstitutional," Commonwealth v. Perez, 477 Mass. 677, 682 (2017), including whether it was "imposed upon a defendant for a crime other than that for which he stands convicted." Commonwealth v. Jackmon, 63 Mass. App. Ct. 47, 56 (2005), quoting from Commonwealth v. Coleman, 390 Mass. 797, 804 (1984). "We do not review the judge's discretion but inquire only whether the sentence was tainted by error of law." Commonwealth v. Vega, 54 Mass. App. Ct. 249, 250 (2002). In this case, we discern no such error.

The defendant was convicted of attempted extortion and receiving stolen goods but acquitted of armed assault with the intent to murder. In considering the defendant's sentence at the hearing, the trial judge commented on aspects of the assault charge. These statements were made in proper consideration of "the circumstances attending the crime's commission," Commonwealth v. Jones, 71 Mass. App. Ct. 568, 576 (2008), on the basis that the defendant was responsible "for an extremely dangerous situation" even though he was not the shooter. Accord Commonwealth v. Oquendo, 83 Mass. App. Ct. 190, 196 (2013). Reference to the defendant as a coconspirator reflects only that the defendant participated in the extortion plot that resulted in an armed assault on an officer. See Vega, 54 Mass. App. Ct. at 251 (acquittal of murder "does not relieve the defendant of responsibility for having set in motion a chain of events in which death was a distinct possibility"). As a result, "[w]e do not read these remarks as reflecting anything other than a consideration of [the] 'nature of the offense and the circumstances surrounding the commission of the crime.' " Commonwealth v. Dora, 57 Mass. App. Ct. 141, 149 (2003), quoting from Coleman, 390 Mass. at 805.

Most significant, the trial judge expressly stated he would "respect the jury's decision" that the defendant "was not convicted of any assault." Compare Coleman, 390 Mass. at 810 ("That the judge was affected by the defendant's false testimony is all too clear from the transcript of the sentencing hearing"), and Commonwealth v. Gomes, 465 Mass. 1003, 1003-1004 (2013) (judge acknowledged defendant's uncharged perjury "affected" sentencing), with Commonwealth v. Morse, 402 Mass. 735, 740 (1988) ("[W]e are not presented with a case ... where the record clearly demonstrated that the defendant was being sentenced for a crime other than that of which he was convicted"). The record here does not establish that the sentence was improper, and we will not disturb it.

Judgments affirmed.

      With the Commonwealth's agreement, the trial judge allowed the defendant's motion for a required finding of not guilty on the greater offense of receiving stolen property valued over $250.

      Although Detective Bowler recognized the defendant driving the black Honda, he could not identify him by name before seeing him at the station jogged his memory. Without knowledge of the connection between the defendant and the investigation, Detective Bowler would have no inclination to target the defendant outside his own recollection before seeing the defendant a second time. The motion judge also heard testimony that Detective Bowler did not inform fellow officers or his superiors that he recognized the defendant until after the defendant had already been brought in and questioned. Cf. Commonwealth v. Walker, 460 Mass. 590, 604 (2011) (identification was not unnecessarily suggestive because it was not required to "lock onto a suspect").

      The defendant is Hispanic with light-to-medium colored skin.

      The motion judge found that the defendant was told "he would not be arrested that night if he answered some questions and viewed a photo array" (emphasis supplied). As both parties agreed at oral argument, nothing in the record of the motion hearing supports this finding. Accordingly, we do not accept this finding on appeal. See Cawthron, 479 Mass. at 620-621 ("This factual finding is unsupported by the evidence introduced at the hearing, and, therefore, we decline to defer to it").


text:
    Anita RANA & another v. Momen M. EL NESR.
    17-P-810
    Appeals Court of Massachusetts.
    Entered: August 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Kuldeep R. Rana.

   The defendant appeals from a Superior Court judgment entered on October 7, 2016, allowing the plaintiffs' requests for a declaratory judgment, a permanent injunction, and damages stemming from the removal and destruction of a tree located in a joint landscape bed between the parties' respective properties. The defendant also appeals from a contempt judgment entered on August 11, 2015. For the reasons set forth below, we affirm.

Background. The judge found the following facts, which are supplemented with undisputed facts from the record. The plaintiffs are the owners of developed property (lot 5) in Southborough, and the defendant is the owner of an adjacent, developed lot (lot 3). The Fisher Road Realty Trust had deeded lot 5 to the plaintiffs in November, 2010 (lot 5 deed) and lot 3 to the defendant in March, 2013 (lot 3 deed). A series of joint landscape beds exist along the property line separating lots 3 and 5, with portions of the landscape beds extending onto each lot. The defendant informed the plaintiffs that he intended to alter the shape, size, and contents of one of the joint landscape beds in order to accommodate the installation of a circular driveway on his property. The defendant was told by both the plaintiffs and members of the corporation from which he purchased the property that certain deed restrictions prevented him from making such alterations to the joint landscape bed. Despite these warnings, the defendant ultimately decided to unilaterally remove a maple tree and bush from one of the joint landscape beds. The maple tree later died because it was improperly planted in another location on the defendant's property.

In May, 2013, the plaintiffs sought and were granted a preliminary injunction preventing the defendant from further destroying, removing, or altering any of the five joint landscape beds that lie on the boundary of the two properties, as well as from failing to maintain the plants or shrubbery in those beds that are on his property. After the preliminary injunction issued, the defendant was found in contempt of that order for having installed piping for an irrigation system in one of the joint landscape beds. Following a five-day, jury-waived trial on the merits, the judge entered a declaratory judgment for the plaintiffs after concluding that the restrictions set forth in the lot 5 deed prevent the defendant from disturbing, altering, or destroying the joint landscape beds. The judge also imposed a permanent injunction preventing the defendant from any such actions with regard to the joint landscape beds, and ordered the defendant to pay $3,000 plus statutory interest to the plaintiffs for the destruction of the maple tree.

Discussion. 1. Deed restrictions. The defendant first argues that the judge erroneously concluded that the lot 5 deed restricted the defendant from altering the joint landscape beds according to his subjective tastes. The lot 5 deed provides, in pertinent part:

"Grantor, as the owner of said Lot 3, agrees for the benefit of the owners from time to time of Lot 5 to maintain those portions of the 'Joint Landscape Beds' which are located within the bounds of Lot 3, and the plantings, shrubbery and vegetation presently located thereon in the same condition as now exists or in such better condition as may hereafter exist, all in a reasonable and professional manner and (ii) and [sic ] grants to Grantor the perpetual right and easement appurtenant to Lot 5 for the owner of Lot 5 to enter upon Lot 3 to perform such maintenance in the event that Grantor and its successors in title to Lot 3 fail to do so."

The lot 3 deed states that the property is conveyed subject to the "rights and easements sets forth in a deed from Grantor to [the plaintiffs]." The defendant concedes that this language subjects him to the requirements set forth in the lot 5 deed. He nevertheless argues that the language of the lot 5 deed does not operate as a restriction, and thus cannot prevent him from altering the portions of the joint landscape beds that are located on his property as he sees fit. We disagree.

"The interpretation of a deed presents a question of law, which we review de novo." Skye v. Hession, 91 Mass. App. Ct. 423, 425 (2017). "The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances." White v. Hartigan, 464 Mass. 400, 410-411 (2013) (quotation omitted). "When the language of the applicable instruments is 'clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.' " Hamouda v. Harris, 66 Mass. App. Ct. 22, 25 (2006) (Hamouda ), quoting from Cook v. Babcock, 7 Cush. 526, 528 (1851).

Here, the language of the lot 5 deed placed an affirmative duty on the defendant to keep the joint landscape beds, including the plantings and shrubbery located thereon, "in the same condition as now exists or in such better condition as may hereafter exist, all in a reasonable and professional manner." The deed language operates as a restriction because it prevents the defendant, who is in possession of a portion of the joint landscape bed, from using that land in any way he deems suitable. See Labounty v. Vickers, 352 Mass. 337, 347 (1967) ("A 'restriction on the use of land' is a right to compel the person entitled to possession of the land not to use it in specified ways").

While "any ambiguity in an asserted restriction ... should be construed in favor of the freedom of the property from that restriction," Boston Redev. Authy. v. Pham, 88 Mass. App. Ct. 713, 718 (2015) (quotation omitted), we do not consider the lot 5 deed to be ambiguous. The lot 5 deed explicitly restricts the defendant's use of his property by requiring him to maintain the joint landscape beds and the plantings and shrubbery located thereon in the same or better condition as existed at the time the deed was conveyed. Cf. Hamouda, supra at 26 (deed held to be ambiguous because language was "uncertain and susceptible of multiple interpretations"). The defendant sought to alter the joint landscape bed in a manner inconsistent with the provisions of the lot 5 deed by removing a maple tree and bush in order to accommodate the construction of a circular driveway. The judge did not err by entering a declaratory judgment in the plaintiffs' favor.

The defendant further argues that the judge improperly granted the plaintiffs' request for permanent injunctive relief as a means of enforcing the deed restriction. "Trial judges have broad discretion to grant or deny injunctive relief and we review a judge's decision for an abuse of that discretion." LightLab Imaging, Inc. v. Axsun Technologies, Inc., 469 Mass. 181, 194 (2014) (citation omitted). Here, the defendant went forward with the removal of the tree and bush from the joint landscape bed after being told that he could not do so by the plaintiffs, members of the corporation from which he purchased the property, and the Southborough police. Moreover, the defendant consistently took the position that he could take any action that he wanted with respect to the joint landscape beds, so long as he subjectively believed that his actions improved the property. In light of these findings, we cannot say that the judge abused his discretion in granting the plaintiffs' request for a permanent injunction in order to prevent the defendant from further altering the joint landscape beds.

2. Damages. The defendant claims that the judge erred in awarding the plaintiffs damages for the removal of the maple tree. As the record makes clear, the parties and the judge were in agreement that the plaintiffs were proceeding with a claim for compensatory damages based on the value of the tree removed by the defendant. The judge found that the cost to replace and install a comparable tree in the joint landscape bed was $3,000, based on the evidence presented at trial, and therefore awarded the plaintiffs that amount in damages. Contrary to the defendant's assertion, the plaintiffs were clearly not awarded treble damages from the removal of the tree under G. L. c. 242, § 7, and did not otherwise waive their claim for compensatory damages.

3. Contempt order. The plaintiffs filed a complaint for civil contempt against the defendant on July 17, 2015. On August 11, 2015, a contempt judgment entered finding that the defendant violated the preliminary injunction and awarding the plaintiffs $1,500. The defendant did not appeal from the contempt judgment until November 4, 2016, when he filed his notice of appeal from the judgment entered on October 7, 2016. "Despite the fact that a civil contempt action is typically docketed with the number of the underlying action ... it is understood to be an action distinct from the underlying action, culminating in a separate judgment." Jones v. Manns, 33 Mass. App. Ct. 485, 489 (1992). Thus, the defendant's appeal from the contempt judgment is not properly before us because it was not taken within thirty days of the entry of the contempt judgment. See id. at 490 ; Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013).

Judgment entered October 7, 2016, affirmed.

      The parties do not challenge any of the judge's subsidiary findings of fact.

      The judge also entered judgment for the plaintiffs on the defendant's invasion of privacy counterclaim. On appeal, the defendant has made no argument as to his counterclaim.

      The defendant also argues that the relief granted to the plaintiffs cannot stand because the judge did not comply with G. L. c. 184, § 30, inserted by St. 1961, c. 448, § 1, which requires that before a restriction is enforced "it must be determined that the restriction is at the time of the proceeding of actual and substantial benefit to a person claiming rights of enforcement. See Exit 1 Properties Ltd. Partnership v. Mobil Oil Corp., 44 Mass. App. Ct. 571, 573-574 (1998). The record reflects that the judge, who took a view of the property, heard the testimony of six witnesses, and considered fifty-one exhibits, did make such a finding. This is supported by the plain language of the lot 5 deed, which provides assurances that the condition of the joint landscape beds located on lot 3 will not deteriorate, and, in the event they do, it authorizes the owner of lot 5 to enter upon lot 3 "to perform such maintenance."