text:
    Jack CLEMENTE v. Gary E. MARTINELLI & another
    17-P-87
    Appeals Court of Massachusetts.
    Entered: February 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Martinelli Discenza PC.

   The plaintiff, Jack Clemente, appeals from a Superior Court summary judgment in favor of the defendants, Gary E. Martinelli and Martinelli Discenza PC (collectively, Martinelli), on all counts of his complaint. The sole issue we consider on appeal is whether the judge was correct in concluding that there was no attorney-client relationship between the plaintiff and Martinelli, as all three counts of the plaintiff's complaint depend upon the existence of such a relationship. We affirm.

The facts of this case are undisputed. Gary E. Martinelli is an attorney practicing law in the town of Longmeadow. In 2004, Martinelli assisted the plaintiff in forming a business, Convenient Cards, LLC (CC), and provided CC with various legal services. Martinelli billed CC directly for his work. In 2007, the plaintiff and Martinelli began negotiating a partnership within CC. Martinelli sent the plaintiff a letter advising him that a business partnership between them would create a conflict of interest for him, and that the plaintiff should seek the advice of another lawyer. Martinelli eventually became a partner in CC and continued to provide CC legal services.

Several years later, in 2009, CC's struggling financial situation necessitated a merger with another company. Martinelli conducted a majority of the merger negotiations on CC's behalf. The final merger agreement, in relevant part, provided that the plaintiff would remain a salaried employee of the new business. The plaintiff's position has since been terminated, although he remains a shareholder and continues to act as a director for the business.

The plaintiff later filed a three-count suit against Martinelli, claiming that in negotiating the merger, Martinelli, acting as the plaintiff's personal attorney, committed legal malpractice by failing to adequately represent his personal interests (count III). Count II alleged that if Martinelli was not in fact the plaintiff's personal attorney, he fraudulently induced the plaintiff into believing that he was. In addition, count I claimed unfair and deceptive business practices in violation of G. L. c. 93A.

In a claim for legal malpractice, a plaintiff must first demonstrate the existence of an attorney-client relationship. Miller v. Mooney, 431 Mass. 57, 61 (2000). An attorney-client relationship can be either express or implied. See DeVaux v. American Home Assur. Co., 387 Mass. 814, 817-818 (1983). "An attorney-client relationship may be implied 'when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney's professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance.... In appropriate cases the third element may be established by proof of detrimental reliance, when the person seeking legal services reasonably relies on the attorney to provide them and the attorney, aware of such reliance, does nothing to negate it.' " Ibid. (quotation omitted). However, in circumstances " 'where an attorney is also under an independent and potentially conflicting duty to a client,' [the court is] less likely to impose a duty to nonclients." Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 524 (1989) (Robertson ), quoting from Page v. Frazier, 388 Mass. 55, 63 (1983).

In this case, is it undisputed that there was no contract for services between the plaintiff and Martinelli, and thus no express attorney-client relationship existed. The plaintiff argues that an attorney-client relationship was implied, however, because Martinelli performed legal services for CC, and the plaintiff was CC's only employee. As the judge below determined, this belief betrays a fundamental misunderstanding of an incorporated business. See Robertson, supra at 522 (quotation omitted) ("An attorney for a corporation does not simply by virtue of that capacity become the attorney for ... its officers, directors[,] or shareholders"); Clair v. Clair, 464 Mass. 205, 216 (2013).

Here, Martinelli had sent the plaintiff a letter in which he specifically informed the plaintiff that he only represented CC. The letter also identified Martinelli's conflict of interest were he to become a partner in CC, and advised the plaintiff to seek outside advisement. Given these statements, any reliance that the plaintiff may have placed on Martinelli representing his personal interests was unwarranted. Therefore, the judge was correct in concluding that Martinelli owed no duty to the plaintiff, as no attorney-client relationship existed. Accordingly, summary judgment was correctly granted on count III.

Since the judge was correct in determining that no attorney-client relationship existed, the grant of summary judgment on counts I and II of the plaintiff's complaint was also correct. On count II, the judge concluded that Martinelli did not fraudulently induce the plaintiff's reliance on him for personal legal advice, because he expressly told the plaintiff that he was acting as CC's attorney, that he was serving a dual role as a shareholder and attorney, and that the plaintiff should seek independent advice. As to count I, the judge ruled that absent an attorney-client relationship, Martinelli was acting as either the plaintiff's business partner or CC's corporate counsel during the merger, and as such the dispute was essentially an internal business dispute, which is not governed by c. 93A. See Zimmerman v. Bogoff, 402 Mass. 650, 662-663 (1988). We conclude likewise on both counts.

Judgment affirmed.

      Specifically, the letter stated:
      "In making this proposal, I have a 'conflict of interest.' In our dealings up until this time, I have only represented the interests of CC. In making this proposal, I am not only trying to help CC but am looking out for my own interest in making an intelligent investment decision. As a result, I have suggested that you seek the advice of others, be it CC's accountant, another lawyer[,] or a trusted advisor before you accept my proposal, and I understand you have done so."

      Specifically, the plaintiff claims that Martinelli should have negotiated a cash payout for money the plaintiff personally invested in CC, a two-year guaranteed employment contract with the newly formed entity, and a severance package should the new company terminate the plaintiff.

      The plaintiff relies on another part of Martinelli's letter, where he states, "I propose to help solve the remainder of this problem by assisting you as counsel in the capital-raising process" (emphasis added). From the context of the entire letter, however, it is apparent that Martinelli is referring to assisting CC, not the plaintiff personally. In the very next sentence, Martinelli states that he "would not expect to be paid until CC raised additional cash." In addition, the following paragraph states that in consideration of his extending credit for legal services performed, CC should grant him the option of buying additional units in CC. Since Martinelli had always billed CC for his services, it is clear that he was stating his willingness to continue working for CC on credit until its cash-flow issues were resolved. Finally, in the letter Martinelli expressly states (in the passage quoted in full in note 2, supra ) that he has been working solely for CC.


source: Caselaw Access Project

license: Public Domain

text:
    Jon HARDAKER v. SUPERINTENDENT, MASSACHUSETTS TREATMENT CENTER & another.
    17-P-346
    Appeals Court of Massachusetts.
    Entered: February 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Jay E. Sylvia, in his official capacity as disciplinary officer at the Massachusetts Treatment Center.

   The plaintiff is confined to the Massachusetts Treatment Center at Bridgewater. In June of 2015, five items of contraband were found in the plaintiff's cell. Based on this, and on remarks he made when confronted with the items, the plaintiff was charged administratively with eight disciplinary violations. As the result of a plea agreement, the plaintiff received and served an agreed-upon sanction of twenty days of confinement in the "minimum privilege unit" (MPU). Nevertheless, he brought an action in the nature of certiorari, G. L. c. 249, § 4, challenging the disposition of the disciplinary proceeding in various respects. After a Superior Court judge ruled in the defendants' favor, the plaintiff appealed from the judgment. We affirm.

Background. It is undisputed that as part of the plea agreement, the plaintiff pleaded "guilty" to one of the eight charges: charge 2-01, which was for "[u]nauthorized possession of items or material likely to be used in an escape." It is also undisputed that the parties agreed that five of the seven other charges would be dismissed. The parties dispute what was agreed upon with respect to the remaining two charges. The defendants maintain that the plaintiff pleaded guilty to these additional charges, while the plaintiff claims he did not. As the judge accurately observed, the "Entry of Guilty Plea" form that contemporaneously memorialized the plea agreement supports the defendants' position and contradicts the plaintiff's.

When the parties agreed to the plea agreement, they contemplated that the agreed-upon sanction of twenty days of confinement in the MPU would be imposed on charge 2-01, with no additional sanction to be imposed on the two additional charges to which the plaintiff pleaded guilty. However, when the disciplinary officer went to enter the disposition into the system, he noticed that only fifteen days of MPU confinement could be imposed on charge 2-01. He therefore reallocated the additional five days that the parties had agreed upon to one of the other charges to which the plaintiff had pleaded guilty.

Discussion. In an action in the nature of certiorari, judicial review is limited to correcting "substantial errors of law that affect material rights and are apparent on the record." Debnam v. Belmont, 388 Mass. 632, 635 (1983). Our inquiry is whether the administrative official's decision was "legally tenable and supported by substantial evidence on the record as a whole." Gloucester v. Civil Serv. Commn., 408 Mass. 292, 297 (1990).

We agree with the judge that the plaintiff has shown no reversible error here. The administrative record supports the defendants' position that the plaintiff pleaded "guilty" to three of the violations. Although it is true that the parties originally appear to have contemplated that the entirety of the twenty-day "sentence" would be imposed on charge 2-01, the plaintiff has not shown how the reallocation of that sanction between two of the charges affected his rights in any material way. Indeed, he received exactly the sanction to which he agreed: twenty days in the MPU. Certiorari relief therefore was not warranted.

Judgment affirmed.

      The plaintiff points out that the plea agreement resulted in his being suspended from participating in the music program at the Massachusetts Treatment Center. However, this resulted from his pleading "guilty" to possession of unauthorized and altered tools, not from how the total agreed-to number of days in the MPU would be allocated between the various administrative charges to which he pleaded guilty. Moreover, the suspension from the music program for security reasons was not itself an additional disciplinary sanction. See LaChance v. Commissioner of Correction, 88 Mass. App. Ct. 507, 510-512 (2015).

      This memorandum and order should not be interpreted as endorsing a practice of the Department of Correction to unilaterally modify administrative plea agreements based on the agency's belief as to what an inmate would have agreed to. In fact, even in the case before us, when departmental personnel learned that the agreed-to settlement could not be implemented in the specific form to which the parties had agreed, the better practice would have been to bring this information and the agency's proposed resolution back to the inmate for ratification. Nevertheless, under the particular facts before us, the inmate has not shown a material violation of his rights warranting certiorari relief.
      To the extent the plaintiff raises additional arguments in his brief, these arguments "have not been overlooked. We find nothing in them that requires discussion." Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004) (quotation omitted).


text:
    COMMONWEALTH v. Jamil T. FERNANDES.
    17-P-807
    Appeals Court of Massachusetts.
    Entered: February 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The Commonwealth appeals from an order of a District Court judge allowing the defendant's motion to suppress evidence found during a search of the defendant's vehicle following a traffic stop. We affirm.

Background. In March, 2016, a Massachusetts State Police trooper initiated a traffic stop of a vehicle driven by the defendant on North Montello Street in Brockton. The trooper did so upon learning that the vehicle's registration had been revoked due to lack of insurance. After the trooper activated his vehicle's lights and sirens, the defendant pulled his vehicle off the street and into a parking lot. The trooper asked the defendant for his license and registration, and confirmed that the registration was revoked. He informed the defendant that the vehicle was required to be towed.

After the defendant's vehicle was hooked onto the flatbed of the tow truck, the trooper searched the vehicle. He opened the glove box in which he found a firearm with an obliterated serial number. The defendant was arrested, and charged with, among other offenses, carrying a firearm without a license in violation of G. L. c. 269, § 10(a ), and operating an unregistered motor vehicle in violation of G. L. c. 90, § 9.

The defendant moved to suppress the firearm as the fruit of an unconstitutional search. At the suppression hearing, the trooper testified that the defendant was "visibly nervous, physically shaking" when he was retrieving his license and registration, and the defendant "talk[ed] rapidly and walk[ed] away from the vehicle as if to get [the trooper's] attention away from the vehicle" when they were waiting for the tow truck. The only other witness at the suppression hearing was the defendant's cousin-who was one of two passengers in the vehicle when it was pulled over. She testified that the trooper and she engaged in a "very casual conversation" while they were waiting for the tow truck, and that the defendant was "[s]itting there with us drinking his coffee." The cousin further testified that she had discussions with the tow truck driver about towing the vehicle to her home, which was nearby, and that the trooper did not search the vehicle until after it was hooked onto the tow truck. The judge credited the cousin's testimony on the timing of the search.

At the hearing, the Commonwealth argued that the tow was authorized pursuant to Department of State Police General Order TRF-09 (tow policy), which authorizes an officer to tow an unregistered vehicle "found upon a road/state highway," and that the search was a lawful inventory search pursuant to General Order TRF-10 (inventory policy), which concerns the conduct of inventory searches of vehicles including those ordered towed "[a]s outlined within TRF-09." The defendant argued that the search was an investigatory search based on the trooper's decision to conduct the search after "develop[ing] a hunch."

The motion judge allowed the motion, stating that the trooper's "search of the locked glove box was a pretextual investigatory search for evidence." This appeal followed.

Discussion. During oral argument, the Commonwealth conceded that the tow policy did not govern the vehicle's towing because the vehicle was not "found upon a road/state highway," expressly abandoning its argument that the search was lawful pursuant to the inventory policy as an inventory search of a vehicle ordered towed pursuant to the tow policy. Instead, the Commonwealth argued that the defendant violated G. L. c. 90, § 9, concerning the operation of an unregistered vehicle "upon any way," and that the search was permissible under the inventory policy as a search of a vehicle subject to seizure for being used in the commission of a crime. The Commonwealth acknowledged that this was a new argument, which was not presented to the motion judge or in its brief in this court. We decline to examine the point. "It has long been our rule that we need not consider an argument that urges reversal of a [judge's] ruling when that argument is raised for the first time on appeal." Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006).

Order allowing motion to suppress affirmed.

      General Order TRF-09 provides, in relevant part, that "[o]fficers are authorized to remove (or cause to be removed) any vehicle found upon a road/state highway when ... [t]he vehicle is not validly registered or insured."

      General Order TRF-10 provides, in relevant part, that the Department of State Police "shall inventory any vehicle ordered towed ... [a]s outlined within TRF-09 Towing ... [or] [a]s a seizure-the vehicle is subject to statutory forfeiture or lawful seizure pursuant to a government interest, such as ... [t]he vehicle was used in the commission of a crime, as an instrument of a crime, or is stolen."

      Both policies were entered as exhibits at the hearing.

      The Commonwealth's attorney stated, "correct ... my argument is that the tow policy ... doesn't apply here, because this isn't a car that's just found on the side of the road, on the roadway or [S]tate highway." In response to a follow-up question asking the Commonwealth to confirm that it was abandoning its reliance on the tow policy, the Commonwealth's attorney expressly confirmed, "I would say it does not apply, no."

      General Laws c. 90, § 9, as amended through St. 2008, c. 310, § 7, provides in part that "[n]o person shall operate, push, draw or tow any motor vehicle or trailer, and the owner or custodian of such a vehicle shall not permit the same to be operated, pushed, drawn or towed upon or to remain upon any way except as authorized by section three, unless such vehicle is registered in accordance with this chapter and carries its register number displayed as provided in section six, and, in the case of a motor vehicle, is equipped as provided in section seven."


text:
    COMMONWEALTH v. Frank A. FARROW.
    16-P-1492
    Appeals Court of Massachusetts.
    Entered: February 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 2005, following a jury-waived trial, a Superior Court judge found the defendant guilty of unlawful possession of a firearm. We affirmed that judgment in an unpublished memorandum and order. Commonwealth v. Farrow, 71 Mass. App. Ct. 1103 (2008). In 2016, a different Superior Court judge denied the defendant's motion for new trial after holding an evidentiary hearing. Before us now is the defendant's appeal of that order. We affirm.

Background. During a police chase on foot, the defendant tossed the firearm in question onto the roof of a nearby home. After the gun was retrieved, a ballistician (original ballistician) tested its operability. Although the firing pin of the gun was broken, the gun was able to be fired after the pin was replaced. Because the original ballistician had retired by the time of trial, a second ballistician (substitute ballistician) testified instead. While the substitute ballistician had not been present when the original ballistician had installed a new firing pin, he had examined the gun, the broken firing pin, and the available documentation, and had fired the gun prior to trial. He testified as an expert witness that replacing a broken firing pin in this type of gun is easy to do; according to him, "all it takes is a very small screwdriver and some small bit of manual dexterity." The expert testified in detail about how such a repair would be made.

In his prior direct appeal, the defendant challenged the sufficiency of the evidence of operability. With the substitute ballistician's having testified that the gun could be fired after a simple repair, we held that the evidence of operability was sufficient. See Farrow, 71 Mass. App. Ct. at 1103. See also Commonwealth v. Prevost, 44 Mass. App. Ct. 398, 403 (1998), citing Commonwealth v. Bartholomew, 326 Mass. 218, 219 (1950) (replacing firing pin is simple repair).

At the evidentiary hearing on the new trial motion, the Commonwealth presented the testimony of a third ballistician (the substitute ballistician himself having retired). He provided very similar testimony to that given by the substitute ballistician at trial. In addition, the third ballistician demonstrated the simplicity of replacing the firing pin on the gun in front of the judge. The motion judge expressly credited the third ballistician's testimony and made the following findings regarding the ease of the repair:

"The repair here, involving no more than inserting a screwdriver (or, as demonstrated in the courtroom, a ballpoint pen) into the release mechanism at the rear of the gun, which permits the slide to be raised and the firing pin removed and replaced, is not the sort of repair that seemingly involves any particular degree of expertise or sophistication. Indeed, one is challenged to imagine an easier repair."

A ballistician presented by the defendant also testified at the motion hearing. The judge stated that he did not believe that the defense expert's testimony, "if offered at trial, would have made an[y] difference on the objective determination of whether replacing a firing pin constitutes more than a 'slight repair.' "

Discussion. We review the denial of a motion for new trial for "an abuse of discretion or other error of law." Commonwealth v. Murphy, 442 Mass. 485, 499 (2004). The defendant claims that the judge erred in three respects, which we address in turn.

a. Confrontation clause. The defendant's lead argument is that the Commonwealth's use of a substitute expert caused a violation of his rights under the confrontation clause of the Sixth Amendment to the United States Constitution. See Commonwealth v. Nardi, 452 Mass. 379, 392-394 (2008) (medical examiner could not testify on direct as to autopsy findings made by nontestifying doctor). However, the substitute ballistician here testified that the gun worked based on his own test firing of it. His testimony that the original firing pin included in the evidence bag was broken was also based on his own observations. Similarly, he testified to his opinion about the ease with which firing pins can be replaced on this type of gun based on his own knowledge, including his training and experience, not on any findings or opinions of the original ballistician. Such testimony therefore created no confrontation clause problem. See Commonwealth v. Barbosa, 457 Mass. 773, 783-784 (2010) ("Where a Commonwealth expert testifies as to her own opinion, the opinion is not hearsay, because the declarant of the opinion is testifying at trial"). Cf. Nardi, 452 Mass. at 392.

At oral argument, the defendant was hard pressed to identify any findings or statements by the original ballistician that effectively were admitted by the substitute ballistician's testimony. The fact that the gun would not fire when it first came into police custody is one that was entirely in the defendant's favor and one that would have come out in cross-examination in any event. The introduction of that fact therefore could not have caused a significant risk of a miscarriage of justice. See id. at 395-396 (even though it was error for medical examiner to testify on direct examination as to autopsy findings made by nontestifying doctor, this did not create substantial risk of miscarriage of justice where findings were helpful to defendant).

That leaves consideration of the propriety of the expert's testimony that the original ballistician replaced the firing pin. The substitute ballistician testified that he had gleaned this fact from "an indication on the [evidence] envelope that it said: broken firing pin replacement in the weapon." Assuming arguendo that the defendant had a basis to object to the substitute ballistician's testifying to that fact on direct examination, we conclude that any error from its admission did not cause a substantial risk of a miscarriage of justice. The defendant has never contested the fact that the firing pin needed to be repaired, which is not surprising given that this fact was in the defendant's favor. Rather, the key factual dispute was over the ease with which such a repair could be done. On that issue, the substitute expert testified from his own knowledge and was fully available for cross-examination.

b. Daubert/Lanigan hearing. The defendant also argues that the second ballistician's testimony should not have been allowed without a Daubert-Lanigan hearing. This argument requires little discussion. Because the defendant did not make such a request in a pretrial motion (or, for that matter, at trial), he waived the issue. See Barbosa, 457 Mass. at 783. In any event, a Daubert-Lanigan hearing generally is not required where, as here, courts have "previously admitted expert testimony of the same type, where the testimony is offered for the same purpose, and where there is no factual issue as to whether the expert is qualified, whether the appropriate methodology has been followed, or whether the quality of the evidence is sufficient to permit an opinion." Commonwealth v. Pytou Heang, 458 Mass. 827, 845 (2011). In sum, the trial judge cannot be faulted for not holding a Daubert-Lanigan hearing where one was neither requested nor required.

c. Ineffective assistance. Finally, the defendant argues that his trial counsel was constitutionally ineffective for not retaining a ballistician prior to trial. To make out a claim of ineffective assistance, a defendant must demonstrate (1) that his counsel's conduct fell "measurably below that which might be expected from an ordinary fallible lawyer," and (2) that it "likely deprived [him] of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Here, the defendant has not satisfied either prong. As to the first prong, the judge accepted trial counsel's explanation that his decision not to pursue his own expert was the product of a deliberate strategic choice. "Where an ineffective assistance of counsel claim is based on a tactical or strategic decision, we find error only if the decision was manifestly unreasonable when made." Commonwealth v. Field, 477 Mass. 553, 556 (2017), citing Commonwealth v. LaCava, 438 Mass. 708, 713 (2003). The defendant has not demonstrated that the decision to forego hiring a ballistician was "manifestly unreasonable."

As to the second Saferian prong, the motion judge-having heard the testimony of the ballistician that the defendant eventually retained-concluded that this would not have made a difference at trial. We have no valid reason to question that conclusion. It follows that even were defense counsel's decision not to pursue a ballistician considered deficient, this did not deprive his client of an "otherwise available, substantial ground of defence."

Conclusion. We discern no abuse of discretion or other error in the motion judge's denial of the defendant's motion for new trial. Accordingly, we affirm the order denying that motion.

So ordered.

Affirmed.

      The defendant also was convicted of unlawful possession of ammunition. That conviction is not at issue in the current appeal. The defendant was acquitted of resisting arrest.

      The Supreme Judicial Court denied further appellate review. See 451 Mass. 1102 (2008).

      It is uncontested that the defendant waived the confrontation clause argument, not having raised it at trial (or, for that matter, during his initial appeal). See Commonwealth v. Amirault, 424 Mass. 618, 641 (1997), quoting from Smith, Criminal Practice and Procedure §§ 2070, 2084 (Supp. 1996) ("It is clear that the doctrine of waiver 'applies equally to constitutional claims which could have been raised, but were not raised on direct appeal or in a prior motion for a new trial' "). Therefore, our review is limited to whether any error caused a substantial likelihood of a miscarriage of justice. See ibid.

      To some extent, the defendant appears to be arguing that it was not enough for a ballistician to speak to how easy it is in general to replace a firing pin on this sort of gun; he suggests instead that there needed to be testimony about the ease of the actual replacement done here. This is not a confrontation clause argument but a sufficiency argument, and the sufficiency of the Commonwealth's proof was already addressed by the earlier appeal.

      See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) ; Commonwealth v. Lanigan, 419 Mass. 15 (1994).

      As the judge found, defense counsel settled on a strategy that through cross-examination and argument, he would seek to establish "that the replacement of a firing pin, while relatively easy for a trained and experienced ballistician with access to replacement parts, might not be so simple to an unlicensed and untrained individual in the defendant's position." He also was concerned about his hiring a ballistician "alerting the prosecutor to his challenge to the operability of the firearm to avoid an effort by the prosecutor to introduce other act evidence (that the firearm was connected to a shooting several days earlier)." Assuming arguendo that the defendant is correct that his trial counsel could have taken the minimal step of consulting an expert without disclosing this consultation to the Commonwealth, we remain unconvinced that the defendant has shown that counsel's failure to take that action fell "measurably below that which might be expected from an ordinary fallible lawyer."


text:
    COMMONWEALTH v. Kevin J. CONNOR.
    16-P-1500
    Appeals Court of Massachusetts.
    Entered: February 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Kevin J. Connor, appeals from a Superior Court order revoking his probationary sentence and imposing his suspended house of correction sentence. On appeal, he claims that (1) there was insufficient evidence to support the revocation of his probation; (2) the hearsay considered by the judge was unreliable; and (3) the judge erred in continuing the hearing after the Commonwealth rested, and by ordering sua sponte that additional evidence and witnesses be produced at the continued hearing. We affirm.

Discussion. 1. Sufficiency of the evidence. We review a judge's decision to revoke the defendant's probation for an abuse of discretion. We examine the record to determine "whether [it] discloses sufficient reliable evidence to warrant the findings by the judge." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000). The standard of proof in a probation revocation proceeding is the civil standard of preponderance of the evidence rather than the criminal standard of proof beyond a reasonable doubt. Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001). A proposition is proved by a preponderance of the evidence "if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there." Ibid., quoting from Sargent v. Massachusetts Acc. Co., 307 Mass. 246, 250 (1940).

From the evidence presented on the first day of the hearing by probation Officer Dingle, the judge could have found that on August 24, 2015, police officers arrived at the defendant's apartment after a neighbor telephoned 911 to report that he could see on his security camera a man and a woman fighting. Officers spoke to the defendant, who insisted that "there was nothing going on." They then spoke to the neighbor, who told the police that he had seen the defendant putting his hands on the victim, his girl friend, whom he lived with along with her two young sons. When police went inside the apartment, they did not observe any visible markings on the victim. They spoke to the victim's young son, who was hiding in the bathroom and appeared visibly scared. The boy told police that the defendant had put his hands on the victim.

The neighbor also testified on the first day of the hearing. While his testimony largely differed from what he told the police at the scene, he did testify that he observed someone on his surveillance camera "trying to beat up the girl next door," referring to the victim. The neighbor denied that he told police that he had seen the defendant hit the victim. The neighbor also admitted that he and the defendant were friends, that they had discussed the case prior to the hearing, and that the defendant had given him a ride to the court house that day.

We conclude that sufficient evidence was presented, on the first day of the hearing, to support the judge's decision to revoke the defendant's probation. Even though some of the evidence was hearsay, when coupled with the testimony given by Dingle and the neighbor, the judge could have found by a preponderance of evidence that the defendant either pushed or hit the victim. Thus, the judge properly revoked the defendant's probation.

2. Hearsay statements. The defendant claims that the judge erred by admitting in evidence, through the testimony of probation Officer Dingle, the victim's child's statement, because it was hearsay and unreliable. We disagree. Hearsay is admissible in a revocation proceeding if it is reliable, and if reliable, then good cause has been established for its admission. Commonwealth v. Nunez, 446 Mass. 54, 58-59 (2006). Having examined the record, we are satisfied that the child's statement was sufficiently reliable. The statement was corroborated by Dingle's testimony about his conversation with one of the responding officers, as well as by the neighbor's testimony at the hearing, and by the police report summarized by Dingle. The police report itself, while also constituting hearsay, likewise was reliable. See Commonwealth v. Maggio, 414 Mass. 193, 199 n.3 (1993) (detailed police reports constitute reliable, factually detailed hearsay). There was no error. See Commonwealth v. Durling, 407 Mass. 108, 118-120 (1990) ; Commonwealth v. Patton, 458 Mass. 119, 134 (2010).

3. Reopening the case. Finally, the defendant contends that the judge erred when he permitted the Commonwealth to reopen its case after it had rested. At the outset of the revocation hearing, Dingle informed the judge that only one of the expected witnesses was present, and asked the judge to continue the hearing so that all witnesses could testify or, in the alternative, to hear testimony of the one present witness and continue the hearing for the other witnesses. After questioning whether the other witnesses had been summonsed and the reason why one witness was not there, the judge then said, "We'll take this witness," and the parties proceeded to examine the neighbor. At the end of his testimony, the Commonwealth attempted to rest, but the judge stated he would not allow that, to which the Commonwealth repeated its request to continue the hearing, which the judge then allowed.

This case is akin to Commonwealth v. Burke, 20 Mass. App. Ct. 489 (1985). There, the prosecution rested its case, but requested that the judge take judicial notice of certain statutes and read them to the jury. Id. at 512. The judge adjourned for the day without acting on that request. Ibid. The following day, the defendant moved for required findings of not guilty, while the Commonwealth moved to reopen its case in order to admit additional evidence. Ibid. This court upheld the judge's ruling that the Commonwealth had technically not rested because the judge still had to act on its request from the prior day. Ibid.

Here, it is apparent from the record that the judge, in continuing the hearing, implicitly allowed the Commonwealth's request to hear testimony from the neighbor and then continue the hearing so that the other witnesses could be present. The confusion appears to stem from the fact that the judge delayed acting on the Commonwealth's request until after the neighbor had testified and the Commonwealth attempted to rest its case. However, like Burke, supra, technically the Commonwealth had not rested because the judge had yet to rule on its request to continue the case. We discern no error.

Order revoking probation affirmed.

      Because we conclude that the Commonwealth presented sufficient evidence on the first day of the hearing to support the judge's finding that the defendant violated the terms of his probation, we need not address the propriety of the judge's decision to order the tape of the 911 call to be produced for the second day of hearing, and express no opinion on the matter here.

      Furthermore, even if the Commonwealth had rested, this is not a case in which the judge reopened the evidence to permit the Commonwealth to supplement evidence on a missing element of the offense, in response to a defendant's motion for a required finding of not guilty. See Commonwealth v. Zavala, 52 Mass. App. Ct. 770, 777 (2001). Here, the judge was not satisfied with the neighbor's testimony, which conflicted with the report of his 911 call and his statements to police at the scene, and sought to get a full picture of the underlying events. A trial judge has a measure of discretion in deciding whether to allow the Commonwealth to reopen its case after it has rested. See Commonwealth v. Ieradi, 17 Mass. App. Ct. 297, 302-303 (1983). While "the decision whether to reopen a case ... cannot be made in an arbitrary or capricious manner," Commonwealth v. Moore, 52 Mass. App. Ct. 120, 126 (2001), "[i]t is within the sound discretion of the judge to admit material evidence" when good reason is supplied and in order to achieve a just result. Ibid., quoting from Commonwealth v. Shine, 398 Mass. 641, 656 (1986). Thus, even if the Commonwealth had rested, it would not have been error for the judge to allow it to reopen the case in these circumstances.


text:
    COMMONWEALTH v. Wayne ROGERS.
    16-P-1604
    Appeals Court of Massachusetts.
    Entered: February 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Wayne Rogers appeals from his conviction of possession of a class B substance with intent to distribute. See G. L. c. 94C, § 32A(a ). On appeal, he contends that: (1) a Commonwealth witness offered lay opinion as to constructive possession; (2) the Commonwealth's expert testified to negative profiling evidence; and (3) the prosecutor misstated the evidence in closing argument. We affirm.

Officer Kaplan testified that he focused his search on "the room that I was in, I believe, being Mr. Wayne Rogers'." Passing on whether the reference to the room constituted a lay opinion as to constructive possession by Rogers, any error did not create a substantial risk of a miscarriage of justice. The defendant had the keys to the apartment, and the officers found a utility bill and DTA card in Rogers's name in the room. "Assuming that the statement[s were] improperly admitted in evidence, we nonetheless determine that, in light of the other abundant evidence that established the defendant's dominion and control over the bedroom area, there was no risk that justice miscarried." Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 100 (2010). The fact that his girl friend also lived in the room does not negate the evidence of the defendant's dominion and control, nor does the fact that the defendant argued that they were her drugs mean that the testimony, which was cumulative of other evidence in the case, created a substantial risk of a miscarriage of justice.

A closer question is presented by the Commonwealth's expert witness's use of negative profiling evidence. Sergeant John Dineen properly testified, in response to hypothetical questions, that various factors were "consistent with" the sale of "crack" cocaine. See Commonwealth v. Wilson, 441 Mass. 390, 400-401 (2004). However, when asked if certain factors were consistent with street level distribution, rather than mere possession, he answered, "If someone was a user, they would have-if you have-buy crack cocaine, you're going to smoke it, people smoke it immediately after they buy it. So one would have something, an instrument to ingest that crack cocaine with, that glass pipe I referred to. You always-if we stop someone buying crack cocaine, they would almost always have that crack pipe on them." In addition, the prosecutor relied on this evidence in his closing argument, stating, "[t]hink about something else Sergeant Dineen, the expert, told us.... Think about those characteristics of somebody who's a drug user, as opposed to a dealer, and think about that bedroom again. A user is disheveled and dirty. Does that bedroom look like someone who is disheveled and dirty or organized and (indiscernible), like a business person might be[?]"

The testimony constituted negative profiling evidence of the type disapproved of in Commonwealth v. Horne, 476 Mass. 222, 226-228 (2017), and cases cited. The prosecutor's repetition of the evidence (albeit in a somewhat convoluted context) compounded the error. Id. at 228. However, there was no substantial risk of a miscarriage of justice. Id. at 225-226.

Unlike Horne, in which there was no evidence of drug paraphernalia consistent with drug distribution, here, the police officers recovered two digital scales and several cut-up plastic baggies. The presence of the scales and cut baggies also informed the expert's opinion, which in all other respects was confined to admissible statements. The evidence of drug paraphernalia materially distinguishes this case from Horne, and leads us to conclude that the testimony did not create a substantial risk of a miscarriage of justice.

Judgment affirmed.

      He was acquitted of unlawful possession of ammunition, G. L. c. 269, § 10(h ).

      The defendant points to the prosecutor's argument that the defendant, himself, wrote his name on the mailbox, when, in fact, there was no evidence presented at trial as to who had written his name. The distinction is immaterial, as it is the fact of the name on the box that matters. The defendant also claims that it was error for the prosecutor to refer to the fact that the utility bills had been paid, since the bills and envelope were admitted solely for a nonhearsay purpose, that is, to show his connection to the residence. See Commonwealth v. Koney, 421 Mass. 295, 303 (1995) ; Commonwealth v. Cohen, 6 Mass. App. Ct. 653, 657 (1978) ; Commonwealth v. Gonzalez, 23 Mass. App. Ct. 990, 991 (1987) ; Commonwealth v. Ramirez, 55 Mass. App. Ct. 224, 227-228 (2002). While the reference to payment would have been better left unsaid, the gravamen of the evidence was that the defendant was receiving the bills at the apartment's address.

      There was no objection to the testimony.

      As he testified, the lack of a pipe, "coupled with the baggies and scale, those are indicators of someone that would be putting all that stuff together to sell it."


text:
    Dennis FARMER v. FEDERAL NATIONAL MORTGAGE ASSOCIATION & Others.
    16-P-1673
    Appeals Court of Massachusetts.
    Entered: February 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Countrywide Home Loans, Inc., Mortgage Electronic Registration Systems, Inc., BAC Home Loans Servicing, LP, and Bank of America, N.A.

   In the underlying action, a homeowner sought to raise various claims in Superior Court with regard to the foreclosure of his property. The current appeal is the second one that has come before us. The earlier appeal was of a "judgment" in the homeowner's favor on two of his seven counts (without resolving the other five counts). In a memorandum and order issued pursuant to our rule 1:28, we vacated that judgment based in part on the preclusive effect of an earlier Housing Court judgment. Farmer v. Federal Natl. Mort. Assn., 87 Mass. App. Ct. 1121 (2015) (Farmer I ). We remanded the case "for further proceedings in the Superior Court consistent with [that] memorandum and order." On remand, a Superior Court judge allowed the defendants' motion for summary judgment and entered judgment in their favor on all counts. On the homeowner's new appeal, we affirm.

Background. Plaintiff Dennis Farmer owned property in Boston subject to a mortgage. After Farmer stopped making mortgage payments, the record holder of the mortgage, defendant Bank of America, N.A. (BANA), foreclosed on the property. BANA purchased the property at a foreclosure sale held on August 19, 2011, and assigned its interest to defendant Federal National Mortgage Association (Fannie Mae). After Farmer refused to leave, Fannie Mae brought a summary process action against him in Housing Court. In that action, Farmer challenged the validity of the foreclosure in various respects. A Housing Court judge ruled in Fannie Mae's favor, and a judgment of possession entered on July 10, 2012. The same judge subsequently denied a motion for postjudgment relief that Farmer filed pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974).

Farmer brought no timely appeal of the Housing Court judgment or rule 60(b) ruling. Instead, he filed a seven-count action in Superior Court, through which he sought to challenge the foreclosure and to recover damages. Counts VI (quiet title) and VII (declaratory judgment) went directly to whether Farmer held a superior interest in the property compared to the defendants. In a memorandum and order dated May 2, 2013, a Superior Court judge ruled in Farmer's favor as a matter of law with regard to these counts (the title-based claims). Specifically, after determining that two underlying assignments of the mortgage were invalid, she invalidated the foreclosure deed from BANA to Fannie Mae, and declared that "Farmer's interest in the property is superior to any interest claimed by each and every one of the defendants in this case." A judgment to that effect entered on August 19, 2013. The judgment left counts I through V of the amended complaint unresolved.

All of the defendants appealed, and they filed a joint brief. Although defendants BANA and BAC Home Loans Servicing, LP (BAC) joined in the substantive arguments raised by the other defendants, they also raised an additional argument, namely that judgment should not have entered against them because they were not parties to the motion proceedings on which judgment was entered.

In Farmer I, we noted that because no separate and final judgment had entered pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), "there [was] a serious question whether the appeal [was] properly before us." Nevertheless, "[b]ecause the issues ha[d] been fully briefed and argued by the parties, and no useful purpose would [have been] served at [that] point by requiring additional proceedings below, we exercise[d] our discretion to reach the merits."

On the merits, we held that Farmer's title-based claims were barred by res judicata based on the earlier Housing Court judgment. Specifically, we concluded that the "alleged defects in the foreclosure process" that Farmer had sought to raise-"the jurisdiction and authority of BANA to foreclose, the validity of the assignments [of the mortgage], and the alleged noncompliance with G. L. c. 244, § 14"-"were or should have been raised in the Housing Court proceeding." See Federal Natl. Mort. Assn. v. Rego, 474 Mass. 329, 339 (2016) (where defendant in postforeclosure summary process action raises affirmative defenses or counterclaims that "challenge the right to possession, the judge must resolve those claims as part of the summary process action"); Santos v. U.S. Bank Natl. Assn., 89 Mass. App. Ct. 687, 695 (2016) ("It is not acceptable for a homeowner mortgagor to seek to force a foreclosing lender to litigate in multiple venues across separate proceedings by unilaterally holding certain claims back from summary process when those claims are within the summary process court's jursidiction and assertedly essential to the determination of superior title"). We went on to conclude that "[i]n any event, even if these issues were properly before the Superior Court judge, there was no merit to them." Having concluded that the defendants were entitled to judgment in their favor on the title-based claims, we vacated the existing judgment and remanded the case to the Superior Court.

On remand, the defendants moved for summary judgment on all counts. A different Superior Court judge ruled that Farmer's being precluded from challenging the foreclosure of his home effectively doomed all of his claims. As that judge stated:

"No matter how artfully pled and argued, Mr. Farmer's claims all arise from a single issue of law: whether the original assignment of the mortgage from [the original mortgagee] to Countrywide was valid, such that each subsequent transfer of the mortgage was also valid and each of the defendants acted lawfully in attempting to enforce it. This question has already been answered for the parties by the Housing Court with a firm 'yes,' and the Appeals Court has specifically held that the answer is binding in this case."

Discussion. The focus of Farmer's appeal is his contention that our earlier memorandum and order does not preclude him from challenging the validity of the foreclosure proceedings. Indeed, his lead argument is simply that the earlier appeal was wrongly decided. In pressing that argument, he passes over the point that our earlier decision established the law of the case, which is binding on us unless revisiting it is necessary to prevent "manifest injustice." King v. Driscoll, 424 Mass. 1, 8 (1996) (King ), quoting from United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir.), cert. denied, 502 U.S. 862 (1991). Having reviewed Farmer's arguments, we conclude that "this is not one of those rare instances where reopening an issue resolved in a prior appeal is necessary to prevent 'manifest injustice.' " Sheppard v. Zoning Bd. of Appeal of Boston, 81 Mass. App. Ct. 394, 397-398 (2012), quoting from King, supra.

In reaching our conclusion, we have considered Farmer's argument that we should revisit our earlier ruling in part based on case law that was published after that ruling. Specifically, Farmer seeks to rely on Pinti v. Emigrant Mort. Co., 472 Mass. 226, 232 (2015) (foreclosure by sale is void if notice of default failed strictly to comply with paragraph 22 of the standard mortgage). Farmer argues that there was no compliance with paragraph 22 of the mortgage here, and that he should be allowed to invoke the Pinti rule because that issue had been raised in the Superior Court action before Pinti was issued. See Federal Natl. Mort. Assn. v. Marroquin, 477 Mass. 82, 87-88 (2017) (mortgagor can take advantage of Pinti rule "where the Pinti issue was timely and fairly raised before" July 17, 2015, date that Pinti was issued). The problem with this argument is that at the point when a Pinti argument was raised in this case, it was already too late to do so in light of Farmer's failure to appeal the Housing Court judgment of possession. Put differently, our resolution of the earlier appeal based on res judicata lies unaffected by the Supreme Judicial Court's subsequent announcement of a new substantive rule in Pinti. It follows that letting the earlier decision stand does not create "manifest injustice."

Farmer additionally argues that even if Farmer I established the law of the case with regard to his claims against other defendants, it did not preclude his title-based claims against BANA and BAC. According to him, BANA and BAC "were not parties to the appeal that was previously decided by this court," and therefore "[a]ny decision in that case has no bearing on this [current] appeal." This argument fails on both the facts and the law. By its express terms, the August 19, 2013, judgment that was the subject of the earlier appeal was binding on all defendants, and BANA and BAC were full parties to that appeal. Farmer has provided no valid reason why our earlier ruling that his title-based claims failed as a matter of law is not binding on him with respect to all defendants (particularly where Fannie Mae's claim to title depended on BANA's holding a valid mortgage). The fact that judgment never should have entered against BANA and BAC for an additional reason (namely, that they were not parties to the underlying motions on which the judgment was based) is beside the point.

In sum, we decline to reopen our earlier memorandum and order, which precludes Farmer from claiming that the foreclosure proceedings somehow were invalid. Without his being able to challenge that, he is unable to demonstrate how his specific claims against the defendants can survive. In other words, the viability of his claims depends on a premise that we have rejected. We therefore affirm the judgment.

So ordered.

Affirmed.

      The Supreme Judicial Court denied further appellate review. Farmer v. Federal Natl. Mort. Assn., 472 Mass. 1109 (2015).

      In our earlier memorandum and order, we summarized what was before the Housing Court judge as follows:
      "Ruling on Fannie Mae's motion for summary judgment, a judge of the Housing Court concluded that BANA, the undisputed mortgage holder at the relevant times, strictly complied with the publication and notice requirements of G. L. c. 244, §§ 14 & 15 ; the foreclosure deed executed and delivered by BANA to Fannie Mae 'conveyed good, clear, and marketable title to the property'; and that Fannie Mae's right to possession, as postforeclosure owner, was superior to any interest held by Farmer."

      The ruling came on an initial round of dispositive motions: Farmer's motion for partial summary judgment and motions to dismiss filed by the four original defendants (which the judge treated as one for summary judgment). BANA and BAC Home Loans Servicing, LP were not named in the original complaint, but were instead added through an amended complaint. Farmer's motion to amend the complaint was allowed while the summary judgment proceedings involving the other parties were pending.

      One was the assignment from Mortgage Electronic Registration Systems, Inc. (who had held the mortgage on behalf of Omega Mortgage Corp., the original mortgagee) to Countrywide Home Loans, Inc. (Countrywide), and the other was from Countrywide to BAC Home Loans Servicing, LP (BAC). BANA acquired the assets of BAC in a merger.

      Counts I and II alleged unfair debt collection practices, count III alleged a violation of G. L. c. 93A, § 9, count IV alleged trespass, and count V alleged intentional infliction of emotional distress.

      See note 4, supra.

      Farmer did not raise compliance with paragraph 22 in his Superior Court amended complaint. However, during the motion proceedings, the judge herself raised the issue, after which Farmer embraced it.

      Farmer appears to maintain that he can be bound by the preclusive effect of the Housing Court judgment and our earlier ruling with regard to his claims against BANA and BAC only if they were parties to the earlier appeal. That premise is in error. See Home Owners Fed. Sav. & Loan Assn. v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455 (1968) ("We now hold that one not a party to the first action may use a judgment in that action defensively against a party who was a plaintiff in the first action on the issues which the judgment decided").

      We need not address the particulars of his claims, because Farmer has not in fact argued that these claims survive if he is precluded from challenging the foreclosure.

      Farmer's request for costs is denied.


text:
    COMMONWEALTH v. H. Keith BEGUN.
    17-P-528
    Appeals Court of Massachusetts.
    Entered: February 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1: 28
   After a trial, a jury convicted the defendant of violating G. L. c. 267, § 1, for submitting a falsified bill of sale to his employer, the town of Shirley, for reimbursement. On appeal, both the defendant and the Commonwealth agree that count 1 of the complaint was defective for failing to allege sufficient facts that would constitute a violation of G. L. c. 267, § 1. To sustain a conviction under G. L. c. 267, § 1, the Commonwealth must prove that the defendant "with intent to injure or defraud, falsely ma[de], alter[ed], forge[d] or counterfeit[ed]" one of the instruments enumerated therein. Commonwealth v. Levin, 11 Mass. App. Ct. 482, 493 (1981). As the parties correctly note, a bill of sale is not one of the instruments named in the statute. Thus, due to this defect, the District Court had no jurisdiction over count 1 of the complaint. See Commonwealth v. Dykens, 473 Mass. 635, 648 (2016), quoting from Commonwealth v. Cantres, 405 Mass. 238, 239-240 (1989) ("Where an indictment fails to allege a fact necessary to constitute an offense, it is defective, and 'no court has jurisdiction to entertain it' "). As such, the defendant's conviction is void and "without legal effect." Commonwealth v. Martin, 476 Mass. 72, 76 (2016) (quotation omitted).

The judgment is vacated, the verdict is set aside, and the matter is dismissed.

So ordered.

Vacated; set aside; dismissed.

      That statute, as appearing in St. 1986, c. 557, § 190, provides that:
      "Whoever, with intent to injure or defraud, falsely makes, alters, forges or counterfeits a public record, or a certificate, return or attestation of a clerk or register of a court, public register, notary public, justice of the peace, town clerk or any other public officer, in relation to a matter wherein such certificate, return or attestation may be received as legal proof; or a charter, deed, will, testament, bond or writing obligatory, power of attorney, policy of insurance, bill of lading, bill of exchange or promissory note; or an order, acquittance or discharge for money or other property or a credit card or an instrument described as a United States Dollar Traveller's Check or Cheque, purchased from a bank or other financially responsible institution, the purpose of which is a source of ready money on cashing the instrument without identification other than the signature of the purchaser; or an acceptance of a bill of exchange, or an endorsement or assignment of a bill of exchange or promissory note for the payment of money; or an accountable receipt for money, goods or other property; or a stock certificate, or any evidence or muniment of title to property; or a certificate of title, duplicate certificate of title, certificate issued in place of a duplicate certificate, the registration book, entry book, or any indexes provided for by chapter one hundred and eighty-five, or the docket of the recorder; shall be punished by imprisonment in the state prison for not more than ten years or in jail for not more than two years."


text:
    ADOPTION OF ANNE.
    17-P-837
    Appeals Court of Massachusetts.
    Entered: February 2, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   Following a trial, a judge of the Juvenile Court found the mother unfit to parent the child, terminated her parental rights, and approved the adoption of the child by the preadoptive mother (who was also the foster mother). In this appeal, the mother claims that the judge was biased against her and made erroneous findings. We affirm.

1. Judicial bias. The mother claims that, due to her involvement in prior proceedings before the same judge, the judge was biased against her in this action. We disagree. "The law concerning recusal of a judge is well established: the decision to withdraw rests first within his sound discretion." Matter of a Care & Protection Summons, 437 Mass. 224, 239 (2002).

Here, the mother did not move for the judge's recusal; "[a]lthough this does not necessarily mean there was no bias, we do take [it] into consideration when viewing the record." Poly v. Moylan, 423 Mass. 141, 150 (1996). The mother claims she brought the potential for judicial bias to the judge's attention on three occasions during the trial. Putting aside whether this was sufficient to preserve the issue, the mother failed to point to anything in the record demonstrating that she did not receive a fair trial aside from the judge's references to past proceedings. The judge made multiple statements on the record indicating that he considered his ability to evaluate the matter fairly. In fact, the judge said to the mother:

"Every case rises and falls on its own merits. So, I don't want you to think for a minute that I'm going to be influenced by what happened before. But if you're really serious about what's going to happen in the future, I'll help take you through that future, and you'll get your kid back."

Furthermore, the judge provided the mother with multiple opportunities to comply with her service plan and reunify with the child, which she failed to do. "Although it is possible that an unfavorable disposition could develop during prior proceedings, where that disposition is not 'so extreme as to display clear inability to render fair judgment,' it does not warrant recusal for bias." Matter of a Care & Protection Summons, supra at 240, quoting from Liteky v. United States, 510 U.S. 540, 551 (1994). The record does not support the mother's claim that the judge was biased.

2. Erroneous findings of fact and conclusions of law. The mother also claims that the judge based the termination decision on erroneous factual findings and conclusions of law. Although one of the challenged factual findings lacks evidentiary support, it is outweighed by the totality of evidence in favor of termination.

Upon review, we give substantial deference to a judge's decision to terminate parental rights, which must be supported "by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). As for the subsidiary findings, we "reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011).

Here, the record supports the following challenged subsidiary findings. The mother has a record that includes six criminal charges, including an assault and battery dated after the child's birth. The mother has a history of drug abuse, including use of heroin, marijuana, and benzodiazepine during her pregnancy with the child. The mother's substance abuse and subsequent morphine treatment placed the child in danger both before and after her birth.

The mother failed to comply with tasks assigned to her pursuant to the service plan. For instance, the mother often arrived late to scheduled visits with the child and was unprepared with snacks and activities. During visits, she was inattentive to the child's needs and was often distracted by her telephone and ongoing conflicts with her parents and the foster mother. The mother's living space is cluttered and exposes the child to hazards such as cat vomit and urine, craft supplies, and drug paraphernalia. The child spent minimal time in the mother's exclusive care and has bonded with the foster mother. Furthermore, two previous attempts by the Department of Children and Families (DCF) to reunify the mother with the child failed.

The mother has been inconsistent with her drug treatment: she has missed group therapy meetings and at least one dose of her methadone treatment, and her medication counts have been "typically off," which raised concerns that the mother was not taking her medication as prescribed. She has not completed a residential or inpatient treatment program. Additionally, she stated that "drug rehabilitation treatment does not help her" and that, as recently as August, 2015, her sobriety was not "stable." The mother has failed to provide DCF with required documentation related to drug screens and her treatment protocol.

On this record, we are convinced that the determination of unfitness was supported by clear and convincing evidence. The judge made detailed and thorough findings, supported by the record, and considered a "constellation of factors" to conclude that the mother was unfit and that termination was in the child's best interests. Adoption of Greta, 431 Mass. 577, 588 (2000). The mother's prior drug abuse and unstable sobriety, combined with her inability to take responsibility for her situation and meet the child's needs, makes her unlikely to provide "minimally acceptable care" in the future. Adoption of Elena, 446 Mass. 24, 31 (2006), quoting from G. L. c. 210, § 3(c )(xii). See Adoption of Katharine, 42 Mass. App. Ct. 25, 32 (1997) ("[J]udges sitting on these sorts of custodial questions need [not] wait for inevitable disaster to happen").

Decree affirmed.

      The father's rights were also terminated; he is not a party to this appeal.

      In the first proceeding, the mother was the subject child in a Child Requiring Assistance/Child in Need of Services petition. In the second proceeding, the mother's parental rights to her first child were terminated. That child is not involved here.

      The mother relies on Commonwealth v. Coyne, 372 Mass. 599 (1977), to claim that a judge's failure to apply the two-prong "Lena test," see Lena v. Commonwealth, 369 Mass. 571, 575 (1976), is structural error. This is incorrect. In Coyne, supra at 602, the court acknowledged circumstances in which recusal is required by statute or may be the best practice. See Corey v. Commonwealth, 364 Mass. 137, 141 n.7 (1973) ; Commonwealth v. Brown, 364 Mass. 471, 480 n.20 (1973). Those circumstances are not present here. Rather, the court noted that "disqualification [is left] to the discretion of the judge." Coyne, supra at 602, citing Commonwealth v. Leventhal, 364 Mass. 718, 722 (1974). The Coyne court did not analyze the recusal issue as a structural error. Coyne, supra at 601-602.

      We note, however, that the mother's failing to move for recusal prior to the trial and then raising claims of bias in this appeal, is questionable. See Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 550 (1998) ("The timing of this motion [to recuse] makes it inherently suspect. The defendants have failed to demonstrate that the filing of this motion was not a last-minute attempt to nullify an adverse judgment").

      The mother challenges this finding on the basis that five of the six charges were dismissed, one "had yet to have a disposition or trial," and four occurred prior to the child's birth. This argument goes to the weight of the evidence, rather than its support in the record, and for this, we defer to the judge. See Adoption of Ilian, 91 Mass. App. Ct. 727, 730 (2017).

      For example, the child tested positive for morphine and was addicted to methadone at birth; she was hospitalized to receive treatment for her withdrawal symptoms. Furthermore, the mother was repeatedly observed asleep while holding and feeding the child in the hospital. Rather than driven by fatigue, the mother's falling asleep and slumping over on top of the child was due to her high morphine dosage postpartum. Doctors and nurses continually educated the mother about the safety issue this posed to the child, reminding her that "suffocation risk is a real possibility, especially as the mother is methadone medicated which seems to be making her sleep more deep[ly]," but the mother's denial and continued missteps drew concern from doctors and nurses about her ability to care for the child.

      The mother disputes the judge's finding that the child lived with the mother for one month while the mother was in treatment at Angel House and spent "a handful of overnight visits" with the mother. The record does not support this finding, and indicates that the child lived with the mother for at least three months. However, this does not constitute reversible error because the ultimate determination of unfitness is supported by other clear and convincing evidence and this finding is "not central to the ultimate conclusion of unfitness. Even without [this] finding[ ], that conclusion has clear and convincing evidentiary support." Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003).

      The record reflects that the mother missed one dose on August 3, 2014, because "she sprained her ankle and was in too much pain to come in." On October 15, 2015, the mother also reported to a DCF social worker that she missed her dose one time, but could not remember when that had occurred.

      With respect to the mother's challenge to "stale evidence," although "isolated problems in the past or stale information cannot be a basis for a determination of current parental unfitness," Adoption of Rhona, 57 Mass. App. Ct. 479, 487 (2003) (quotations omitted), a judge may "consider past conduct to predict future ability and performance." Adoption of Katharine, supra at 33. The judge's consideration of the mother's drug use prior to the child's birth and a G. L. c. 119, § 51A, report (51A report) filed in 2005 on behalf of the mother was not improper. The judge was permitted to weigh this evidence of the mother's prior misconduct and past exposure to violence within her family in determining current parental fitness. See Adoption of Diane, 400 Mass. 196, 204 (1987) ; Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). Of particular note, the judge referenced the 51A report only in his discussion of the mother's background, and it was not figured into the ultimate determination of unfitness.


text:
    COMMONWEALTH v. Edilson B. MENEZES.
    17-P-252
    Appeals Court of Massachusetts.
    Entered: February 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 2010, the defendant pleaded guilty to six counts of rape of a child under sixteen years of age, two counts of indecent assault and battery on a child under fourteen years of age, four counts of posing a child under eighteen years of age in a state of nudity, and one count of possession of child pornography. In 2015, the defendant moved to withdraw his guilty pleas. The plea judge denied the motion without a hearing. On appeal, he claims that plea counsel provided ineffective assistance, his guilty pleas were invalid for a variety of reasons, and that the judge should have conducted an evidentiary hearing. We affirm.

1. Plea counsel's conduct. The defendant claims he was denied effective assistance because his attorney failed to investigate and prepare his case prior to trial and failed to protect the defendant when the judge exceeded the agreed-upon sentence. In support of his motion to withdraw his guilty pleas, the defendant presented three items of evidence in support of his ineffectiveness claim: (1) his own affidavit; (2) a police report regarding his confession; and (3) evidence that his plea counsel was disbarred in 2012.

First, the plea judge was not required to credit the defendant's self-serving affidavit. See Commonwealth v. McWilliams, 473 Mass. 606, 621 (2016). In fact, the defendant's affidavit contains many demonstrably false assertions, such as he never had a Portuguese interpreter in court until the plea hearing, and that counsel failed to move to suppress his confession.

The police report similarly produced little benefit, if any, to the defendant's claims. According to the report, the defendant told the police that his criminal behavior was caused by demonic possession. Based on this statement, the defendant argues that counsel should have sought an expert to evaluate the defendant's mental health and moved to suppress the confession. However, counsel did move to suppress the confession, and the defendant denied at the plea hearing that he had ever suffered from any mental health problems. In any event, the defendant failed to supplement his motion with an affidavit from a mental health expert (or any other competent evidence) to support his claim that he has had mental health problems.

In addition, plea counsel's disciplinary report offered nothing to advance the defendant's motion. Plea counsel's disbarment was not related to his representation of the defendant. That counsel had conducted himself unethically in the past does not mean that he provided ineffective assistance in this case. Similarly, the defendant's claim that counsel charged him an excessive fee, unadorned with any support, does not translate into ineffective assistance of counsel. Indeed, the remedy for such misconduct, even when substantiated, is not a new trial. See Commonwealth v. Facella, 42 Mass. App. Ct. 354, 359-360 (1996).

In addition, the defendant's ineffectiveness claim is further defeated by the plea judge, having observed both the defendant and his counsel at the plea hearing, who found that counsel did the best he could for the defendant in difficult circumstances. The evidence of the defendant's guilt was overwhelming, including his confession and supporting photographic proof.

Finally, contrary to the defendant's claim on appeal, there was no agreed-upon sentence, and the sentence the defendant did receive was far less than the Commonwealth's recommended sentence and was tantamount to the judge adopting the sentence defense counsel recommended. Moreover, the plea judge properly advised the defendant pursuant to Mass.R.Crim.P. 12(c)(3)(A), as appearing in 442 Mass. 1511 (2004), of the maximum sentences he faced by pleading guilty. The defendant failed to show "that better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

2. Consequences. The defendant also claims his plea was not voluntarily and intelligently made where he failed to understand the consequences of his guilty plea. We disagree. "A plea is voluntary if entered without coercion, duress, or improper inducements." Commonwealth v. Berrios, 447 Mass. 701, 708 (2006), cert. denied, 550 U.S. 907 (2007).

In support, the defendant claims that his plea counsel failed to advise him of the risk of being confined one day to life as a sexually dangerous person. However, considering that the plea judge fully advised him of that risk during the plea colloquy, the claim is futile. Because the defendant chose to plead guilty with that knowledge, he has not and cannot show that he was harmed by counsel's alleged failure to give him the same advice. Cf. Commonwealth v. Roberts, 472 Mass. 355, 364-365 (2015) ("[W]here a judge improperly neglects to inform a defendant of the possibility that his or her conviction could serve as a predicate for civil confinement as a sexually dangerous person, the defendant must demonstrate a reasonable probability that but for the judge's error he or she would not have pleaded guilty ..."). The defendant has failed to show that his guilty pleas were not voluntary and intelligent.

3. Evidentiary hearing. "The decision to hold an evidentiary hearing on a motion for a new trial is 'left largely to the sound discretion of the judge.' ... Only when the motion and affidavits raise a 'substantial issue' is an evidentiary hearing required." Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015) (citations omitted). "In determining the adequacy of the defendant's showing, the motion judge may consider whether the motion and affidavits contain credible information of sufficient quality to raise a serious question." Ibid. Given our resolution of the matter, the defendant's motion to withdraw his guilty pleas and the supporting materials do not raise a substantial issue. As such, the judge did not abuse her discretion by not holding an evidentiary hearing. See Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981) ; Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1502 (2001).

Order denying motion to withdraw guilty pleas affirmed.

      The defendant also claimed in his affidavit in support of his motion to withdraw that plea counsel failed to appeal the denial of his motion to suppress the evidence recovered from his computer. However, the judge expressly informed the defendant that by pleading guilty, he was forgoing his right to appeal the denial of his motion to suppress.

      The defendant also claims that plea counsel failed to investigate the medical records of the child victims. However, not only did he fail to produce any such records in support of his motion, but he failed to even allege how such records would have been relevant and necessary to prepare for trial. See Commonwealth v. Jones, 478 Mass. 65, 68-71 (2017).

      The defendant's brief claims that the judge made a false promise of deportation to the defendant's native country, which would not be realized if the defendant was later civilly committed as a sexually dangerous person. However, there is no record support for this claim. The defendant's affidavit made no such claim, and the transcript reveals simply that plea counsel believed the defendant would be deported. However, during the colloquy, the judge made no promises, and noted only that if the defendant does not get deported, or if he gets deported and re-enters the country, he will be subject to the sex offender registry law and be required to wear a GPS bracelet.

      The defendant also claimed in his affidavit in support of the motion to withdraw that the judge failed to inform him of the requirement that he register as a sex offender. Like several of his other claims, this too is belied by the record.


text:
    COMMONWEALTH v. Cori JACKSON.
    16-P-1388
    Appeals Court of Massachusetts.
    Entered: February 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   This appeal from the order on the defendant's resentencing, which occurred on February 10, 2016, brings one issue before the panel: whether the resentencing judge abused her discretion when she vacated the community parole supervision for life (CPSL) component of the defendant's sentence and left the remainder of the defendant's sentence as previously imposed. We hold that the judge did not abuse her discretion, and affirm the resentencing order.

Background. In 2004, following guilty pleas to twelve counts of rape of a child with force in violation of G. L. c. 265, § 22A ; two counts of assault with intent to rape in violation of G. L. c. 265, § 24B ; and thirty-four counts of indecent assault and battery on a child under the age of fourteen in violation of G. L. c. 265, § 13B, the defendant was sentenced to incarceration for a term of twenty-five to twenty-seven years followed by a period of probation and imposition of CPSL. On January 30, 2014, the defendant filed a motion to vacate illegal sentence pursuant to Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001), and Commonwealth v. Parillo, 468 Mass. 318, 319 (2014), where the court determined CPSL sentences to be unconstitutional. The resentencing judge vacated the CPSL portion of the sentence, but did not exercise her discretion to reconsider the remainder of the defendant's original sentence.

Discussion. The defendant contends that the resentencing judge abused her discretion in vacating only the CPSL portion of his sentence, instead of the entire sentence, in violation of G. L. c. 275, § 18. We disagree.

"An appellate court's review of a ... judge's decision for abuse of discretion must give great deference to the judge's exercise of discretion." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). The resentencing judge's decision to vacate the unlawful CPSL requirement was within her authority under rule 30(a) to "correct the sentence then being served upon the ground that [it] was imposed in violation of the Constitution or laws of the United States or of the Commonwealth of Massachusetts." Commonwealth v. Cumming, 466 Mass. 467, 471 (2013). While the resentencing judge was not obligated merely to vacate the CPSL portion of the defendant's original sentence, and in her sound discretion was permitted to restructure the remainder of the defendant's sentence, see Shabazz v. Commonwealth, 387 Mass. 291, 295-296 (1982), she was not required to do so. See Cumming, supra at 468; Commonwealth v. Sallop, 472 Mass. 568, 570 (2015).

Order on motion to vacate illegal sentence affirmed.

Orders denying motions to stay and for reconsideration affirmed.

      The defendant also appeals from a panoply of orders denying motions to stay appellate proceedings and for reconsideration.

      The defendant's reliance on Commonwealth v. Renderos, 440 Mass. 422 (2003), is misplaced. In Renderos, the sentencing judge lacked the statutory authority to impose CPSL in the first instance. Id. at 423. The court held that because the judge misunderstood the bounds of his statutory authority, the sentences imposed constituted "an integrated package," i.e., "each piece dependent on the other, which cannot be separated." Id. at 435. In such a case, a defendant must be resentenced. Ibid. In the present case, at the time of the original sentence, the judge was required to impose CPSL by a statute that was subsequently ruled to be unconstitutional in Parillo, 468 Mass. at 319. Thus, the resentencing judge did not abuse her discretion in declining to view the original sentence as an integrated package.


text:
    COMMONWEALTH v. Pompesky ASPIL.
    17-P-811
    Appeals Court of Massachusetts.
    Entered: February 1, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In October, 2008, a complaint issued from the South Boston Division of the Boston Municipal Court Department (BMC) charging the defendant, Pompesky Aspil, with distribution of a class D substance, G. L. c. 94C, § 32C(a ), and possession of a class D substance with intent to distribute, G. L. c. 94C, § 32C(a ). On October 24, 2008, the defendant waived his right to a jury trial and pleaded guilty to both counts, resulting in both matters being continued without a finding until October 23, 2009. Later, on or about October 22, 2010, the defendant pleaded guilty in the Lawrence Division of the District Court Department to unlawful possession of a class D substance (greater than one ounce), G. L. c. 94C, § 34. As a result of his plea in the District Court, on October 4, 2011, the defendant was issued by the United States Department of Homeland Security a notice to appear for removal proceedings that charged he was subject to removal from the United States; on October 29, 2014, the defendant was ordered removed to Haiti. On April 25, 2016, the defendant filed in the BMC a motion to vacate conviction requesting that his October 24, 2008, plea be vacated; the motion was denied on September 8, 2016. The defendant appeals.

The defendant asserts that the judge abused her discretion by refusing to vacate his plea where the defendant was denied effective assistance of counsel, as his counsel failed to warn him of the immigration consequences of his admissions. Under Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), there is a two-part test for determining ineffective assistance of counsel that considers both counsel's performance and whether any deficient performance caused the defendant to suffer prejudice. In a case such as this, counsel has a duty to inform a defendant that upon a plea of guilty or admission to sufficient facts, "removal ... would be presumptively mandatory." Commonwealth v. DeJesus, 468 Mass. 174, 179 (2014). However, even if we assume that the defendant has met his burden to establish that his attorney's advice did not measure up to Saferian's performance standard, he has not met his burden to establish that the consequences of counsel's serious incompetency was prejudicial. See Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 723 (2012). See also Commonwealth v. Britto, 433 Mass. 596, 601 (2001). The defendant has not demonstrated that he was removed from the United States as a result of his guilty plea in the BMC case. Specifically, the record indicates that the basis for the defendant's removal was his conviction in the District Court on October 22, 2010.

Order denying motion to vacate conviction affirmed.

      At oral argument, counsel for the defendant informed this panel that the defendant had been removed to Haiti. Following oral argument, the defendant's counsel filed with this court a copy of the order, dated July 1, 2016, allowing the defendant's motion to vacate his conviction in the District Court. These facts do not affect the outcome in this case.


text:
    COMMONWEALTH v. Hector PARRILLA.
    15-P-1292
    Appeals Court of Massachusetts.
    Entered: February 1, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Boston Municipal Court jury found the defendant guilty of unlicensed possession of a firearm and ammunition, both in violation of G. L. c. 269, § 10(h ), and improper storage of a firearm, in violation of G. L. c. 140, § 131L(a ), (b ). On appeal, the defendant claims the judge (1) improperly limited the scope of examination, and (2) improperly instructed the jury on constructive possession. We affirm.

Background. The defendant was charged after Boston police recovered a loaded handgun from a dresser drawer in a Dorchester apartment. The defendant's brother, Emanuel, had called police to report the firearm. At trial, the Commonwealth relied primarily on Emanuel's testimony to establish the defendant's possession of the firearm and ammunition. We summarize his testimony.

Emanuel resided in a group home in Roxbury. On November 16, 2013, he visited his mother and brother at their Dorchester apartment. The mother left shortly after Emanuel's arrival, leaving the brothers alone. Once alone with Emanuel, the defendant showed his brother a firearm, and then put the firearm away. After the defendant left the apartment, Emanuel, worried the defendant "was probably going to do something," searched the apartment for the firearm. After some time, he found it in a drawer in the defendant's bedroom dresser, and called the police.

Discussion. 1. Scope of examination. During cross-examination, the defense sought to question Emanuel regarding an incident four years earlier, in which Emanuel, according to defense counsel, falsely accused the defendant of stabbing him. Counsel also attempted to elicit testimony from the defendant's mother (a defense witness) regarding the same incident. In each instance, the judge precluded the defense from asking about the 2009 incident, but allowed cross-examination into the brothers' relationship and any potential animus between them. The defendant claims these rulings prohibiting examination regarding the alleged stabbing in 2009 violated his constitutional right to elicit evidence of Emanuel's bias. See Commonwealth v. Aguiar, 400 Mass. 508, 513-514 (1987) ; Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 186-187 (2013). We disagree.

"If the defendant demonstrates that 'there is a possibility of bias, even a remote one, the judge has no discretion to bar all inquiry into the subject.' " Id. at 186, quoting from Commonwealth v. Tam Bui, 419 Mass. 392, 400, cert. denied, 516 U.S. 861 (1995). However, the judge has discretion to limit the scope of that inquiry. "When the basis for the cross-examination of a witness with respect to bias appears to be tenuous or speculative, the judge may require a party to make a 'plausible showing that the circumstances existed on which the alleged bias is based.' " Kindell, supra at 187, quoting from Tam Bui, supra at 401.

Here, the defendant failed to make that plausible showing. When the defendant first raised the 2009 incident during cross-examination of Emanuel about his mental health, the judge expressed concern that the issue was not raised before trial and requested an offer of proof. Defense counsel asserted only that his client had been charged with stabbing Emanuel in 2009, but that Emanuel "may have falsely accused" him, and the charges were dropped. When the defense sought to question the defendant's mother regarding the incident, the judge again asked for an offer of proof. Defense counsel stated that a stabbing incident had occurred in 2009, this time adding that he was unsure whether his client had actually been charged or merely questioned or detained, and that the mother had told detectives she saw Emanuel stab himself. Defense counsel was uncertain as to the details of the incident and the purpose for which it was offered. This vague proffer was not corroborated by a docket sheet, a police report, or any document connected with a criminal charge in 2009. Nor did counsel request a voir dire to provide factual support for the claimed stabbing. On this record we discern no abuse of discretion in the judge's decision to prohibit inquiry into this tenuous claim. That is to say, the judge did not make "a clear error of judgment in weighing the factors relevant to the decision [to preclude testimony on the 2009 incident], ... such that the decision f[ell] outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

2. Judge's instruction on constructive possession. The defendant claims that an example the judge used to illustrate constructive possession-that an individual may be said to constructively possess objects he or she stores in a bureau drawer at home-improperly directed the jury to find that the defendant possessed the firearm recovered from the dresser in his room. This "bureau drawer" example is one of two provided in instruction 3.220 of the Model Jury Instructions for Use in the District Court (2009), which the judge recited verbatim. Although, given the facts of this case, a better practice would have been to give the model instruction without the "bureau drawer" example, we see no reasonable probability that use of the example caused the jury to conclude that the judge was expressing his belief in the Commonwealth's theory of the case. See Commonwealth v. Gil, 393 Mass. 204, 222 (1984). Contrast Commonwealth v. Sneed, 376 Mass. 867, 872-873 (1978). Indeed, the judge instructed the jury that she had no opinion on the evidence, that her instructions of law were not intended to express any opinion, and that if the jury believed that the judge had expressed any opinion, they should disregard it.

Moreover, the evidence of the defendant's possession of the firearm was strong. In addition to Emanuel's testimony regarding the defendant's actual possession of the firearm, the jury heard that the defendant's clothing and papers related to his driver's permit were found in the same bedroom dresser where the firearm was located. This was compelling evidence of his constructive possession of the drawer's contents. In these circumstances, we discern no prejudice from the judge's use of the example in the model instruction.

Judgments affirmed.

      The panelists are listed in order of seniority.

      Counsel represented to the judge that the incident "goes to show ... that [Emanuel] has accused my client of serious things in the past, and ... has a tendency to do things like that again." Evidence of this alleged stabbing was not admissible for that purpose. See Mass. G. Evid. § 608 (2017).


text:
    COMMONWEALTH v. Roger BURRELL.
    17-P-329
    Appeals Court of Massachusetts.
    Entered: February 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant, Roger Burrell, of various counts of forgery, larceny by check, and uttering a forged instrument (nine counts in total) pertaining to three checks he tendered on April 2, 2016. On appeal, the defendant challenges the sufficiency of the evidence for all nine of his convictions. The Commonwealth concedes that the evidence in support of the defendant's convictions of forgery and larceny by check is deficient but asserts there is sufficient evidence in the record to support the defendant's convictions of uttering a forged instrument. We agree; as a result, we affirm the judgments on the defendant's three convictions of uttering a forged instrument, and we reverse the defendant's six convictions of forgery and larceny by check.

Discussion. When reviewing a challenge to the sufficiency of the evidence, we ask whether, after reviewing the evidence and all rational inferences drawn from it in the light most favorable to the Commonwealth, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Given the Commonwealth's commendable concessions, we need not address the larceny and forgery convictions, but turn to whether the evidence supports the defendant's convictions of uttering a forged instrument.

To sustain a conviction under G. L. c. 267, § 5, of uttering a forged instrument, the Commonwealth must prove: (1) the defendant "offer[ed] as genuine; (2) an instrument; (3) known to be forged; (4) with the intent to defraud." Commonwealth v. Levin, 11 Mass. App. Ct. 482, 496 (1981). Only the third element is in contention here.

To prove the third element, the Commonwealth must establish that the checks were invalid. See Commonwealth v. Gall, 58 Mass. App. Ct. 278, 288 (2003). However, the convictions may rest on "reasonable and possible" inferences, Commonwealth v. Casale, 381 Mass. 167, 173 (1980), and "[w]hen, as here, knowledge is an essential element of an offence, it may be ... proved by circumstantial evidence." Commonwealth v. Altenhaus, 317 Mass. 270, 273 (1944).

In this case, there was testimony that the last valid check that had issued from the payroll account from which the checks at issue were drawn upon was check number 5028. From this testimony, the jury could reasonably infer that the later numbered checks the defendant tendered-i.e., check numbers 5089, 5092, 5102, and 5111-were not validly issued and thus were forged, particularly where the three checks issued from a payroll account that had been opened less than one week prior, and for that reason appeared to cover less than one one-week pay period. See generally G. L. c. 149, § 148, as amended by St. 1992, c. 133, § 502 ("Every person having employees in his service shall pay weekly or bi-weekly each such employee the wages earned by him").

In addition, evidence of the peculiar manner in which the defendant cashed these checks contributed to the conclusion that he knew they were forged. The defendant did not deposit the checks into an account but, rather, tendered each of them for cash at three different branches of the Bristol County Savings Bank within the same morning. See Commonwealth v. Crocker, 384 Mass. 353, 354, 361 (1981) (cashing three checks at three different bank branches over three days is circumstantial evidence of uttering). Based upon the evidence and the reasonable inferences that could be drawn therefrom, see Casale, supra at 171-173, we conclude, therefore, that there was sufficient evidence the defendant knowingly uttered three forged checks. These convictions may stand.

Conclusion. The judgments on counts 2, 5, and 8 are affirmed. The judgments on all other counts are reversed, the verdicts are set aside, and judgments are to be entered for the defendant.

So ordered.

Affirmed in part; reversed in part.

      There were three counts, one for each check, of larceny by check (G. L. c. 266, § 37 ), forgery (G. L. c. 267, § 1 ), and uttering a forged instrument (G. L. c. 267, § 5 ).