text:
    COMMONWEALTH v. Michael L. STALLINGS.
    17-P-719
    Appeals Court of Massachusetts.
    Entered: July 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was charged with murder in the first degree after he and Luis Bodden-Maximo, a rival gang member, exchanged gunfire on Blue Hill Avenue in Boston. No person was hit by any of the shots. Rather, the victim, Kelvin Rowell, died after he ran from the shots, suffered an asthma attack, and went into cardiac arrest. The defense theory was that the defendant did not cause Rowell's death because Bodden-Maximo was the one who fired the first shots, causing Rowell to run.

The jury convicted the defendant of the lesser included offense of involuntary manslaughter, as well as unlawful possession of a firearm. While his direct appeal was pending, the defendant moved in the Superior Court for a new trial, claiming that his trial counsel was constitutionally ineffective for choosing to forego an instruction on self-defense, and that the trial judge erred by suggesting to the jury during deliberations that they had to arrive at a verdict. After a nonevidentiary hearing, the same judge who presided at trial allowed the motion on the ground that counsel's decision to waive a self-defense instruction was manifestly unreasonable. The Commonwealth now appeals. We reverse.

1. Ineffective assistance of counsel. "On the Commonwealth's appeal of the grant of a defendant's motion for a new trial, we consider whether the judge committed a significant error of law or abuse of discretion in allowing the defendant's motion." Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015). "That discretion, however, 'is not boundless and absolute.' " Ibid., quoting from Commonwealth v. Genius, 402 Mass. 711, 714 (1988). "While we will not disturb a judge's subsidiary findings which are warranted by the evidence, 'ultimate findings and conclusions of law, particularly those of constitutional dimensions, are open for our independent review.' " Commonwealth v. Cousin, 478 Mass. 608, 615 (2018), quoting from Commonwealth v. Walter, 396 Mass. 549, 553-554 (1986). In our review "[we] consider the record in its entirety ... to determine whether 'there exists in the record before us evidence to support the judge's decision to order a new trial.' " Kolenovic, 471 Mass. at 673, quoting from Commonwealth v. Lane, 462 Mass. 591, 597 (2012).

To establish ineffective assistance of counsel, the defendant has the burden of satisfying both prongs of the familiar Saferian test: he must prove, first, that counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer" and, second, that the deficient performance prejudiced the defendant by "likely depriv[ing] [him] of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Focusing on the second prong, the Commonwealth argues that the defendant failed to establish prejudice because the evidence at trial did not raise a reasonable doubt that he acted in self-defense. While we think this argument has some force, we need not resolve it because, even assuming that the evidence warranted a self-defense instruction, counsel's decision to forego the instruction did not render his performance constitutionally ineffective.

"Where, as here, the defendant's ineffective assistance of counsel claim is based on a tactical or strategic decision, the test is whether the decision was 'manifestly unreasonable when made.' " Kolenovic, 471 Mass. at 674, quoting from Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). This is an objective standard, which encompasses only those decisions that would not be considered "competent" by "lawyers of ordinary training and skill in the criminal law." Ibid., quoting from Commonwealth v. Pillai, 445 Mass. 175, 186-187 (2005). In other words, the standard "is essentially a search for rationality in counsel's strategic decisions." Ibid.

The defendant argued in his motion, and the judge agreed, that there was no conceivable strategic reason behind counsel's decision to forego a self-defense instruction, given the concession in counsel's affidavit that "a self-defense theory would not have been inconsistent with the causation theory" he pursued at trial. But to the contrary, counsel's strategic reason is stated in the affidavit: "I ultimately decided not to request a self-defense instruction because I wanted to focus on my primary theory that the defendant did not cause Rowell's death." That the two theories are not inconsistent does not necessarily mean that it was manifestly unreasonable for counsel to pursue only one. See Commonwealth v. Glover, 459 Mass. 836, 843-844 (2011) (although instruction on reasonable provocation would not have been "inconsistent with [counsel's] pursuit of an acquittal on grounds of self-defense, ... it was not manifestly unreasonable for defense counsel to proceed solely on a theory of self-defense"). Rather, counsel's choice to forego a self-defense instruction can only be ineffective in the constitutional sense if it was "so manifestly unreasonable as to be unprotected by the labels of 'trial strategy' or 'trial tactics.' " Commonwealth v. Norris, 462 Mass. 131, 141-142 (2012), quoting from Commonwealth v. Smith, 459 Mass. 538, 554 (2011).

For several reasons we conclude that counsel's choice was not manifestly unreasonable. As his affidavit acknowledges, a self-defense theory would have shared the same "factual premise" as the causation theory he pursued at trial-"that the defendant shot second, after being ambushed and fired upon by Bodden-Maximo." But had counsel pursued a self-defense theory, the jury would have had to consider several additional elements, including whether the defendant "actually did believe that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force" and whether he "availed himself of all proper means to avoid physical combat before resorting to the use of deadly force." Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). Given the paucity of evidence on these elements, it was rational for counsel to focus the jury on the causation theory, which required only that they find reasonable doubt as to whether the defendant was the first shooter. See Glover, 459 Mass. at 844 (not manifestly unreasonable for counsel to forego instruction on reasonable provocation where "the evidence more strongly supported excessive use of force in self-defense than reasonable provocation"); Kolenovic, 471 Mass. at 675 ("[C]ounsel was aware of the options but made the strategic decision that a lack of criminal responsibility or diminished capacity defense was unlikely to succeed").

Indeed, although counsel initially requested a self-defense instruction, he withdrew his request after "preparing over the weekend," explaining that the basis for the withdrawal was his assessment of "the facts of the case." Counsel's own statements therefore establish that he made a strategic decision based on the evidence presented. That decision was not manifestly unreasonable when made, especially considering that counsel presented the causation theory as an all-or-nothing choice to the jury. As he repeatedly argued in summation, if the Commonwealth failed to prove that the defendant was the first shooter, the jury had to find the defendant not responsible for Rowell's death. Thus, because the causation theory would have resulted in acquittal if successful, it was rational for counsel to not also pursue a theory of self-defense, given its shared factual premise but potential pitfalls. Cf. Glover, 459 Mass. at 844 (not manifestly unreasonable for counsel to forego theory that "at best could yield conviction of [lesser-included offense]").

For these reasons, and while we appreciate that we owe special deference to the judge who presided at trial, we conclude that he erred in his ultimate ruling that counsel's strategic decision was manifestly unreasonable. The motion for a new trial should not have been allowed on this basis. See Kolenovic, 471 Mass. at 675 (reversing allowance of motion for new trial where counsel's decision "was an informed exercise of his prerogative to decide on the defense strategy").

2. Jury deliberations. We thus turn to the defendant's second argument, that the judge erred by suggesting to the jury that they had to reach a verdict. On their third day of deliberations, the jury sent a note to the judge asking, "What if we truly cannot come to a unanimous agreement?" After determining that a Tuey-Rodriquez charge was not yet warranted, the judge responded as follows:

"The answer to that is the law requires that you do come to a unanimous agreement, the unanimous agreement of not guilty or unanimous agreement of guilty. And I encourage you to continue your deliberations, to listen to one another and to reach a unanimous verdict as you feel is appropriate. So I'm going to send you back to deliberate now at this stage."

The defendant did not object.

We conclude that the judge's response did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Although the phrasing was not ideal, it is materially similar to the language that we deemed not impermissibly coercive in Commonwealth v. O'Brien, 65 Mass. App. Ct. 291, 294-296 (2005). Moreover, in his main charge, the judge made clear that the jury should "reach a verdict if [they could] do so in good conscience" but "should not surrender [an] honestly held conclusion simply to arrive at a verdict." Considering the charge as a whole, as we must, see Commonwealth v. Raymond, 424 Mass. 382, 386 (1997), we do not see a substantial risk that the language used by the judge coerced the jury into returning a verdict. See Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 34 (1984), and cases cited.

Order allowing motion for new trial reversed.

      The defendant's direct appeal has been stayed pending resolution of the motion.

      In particular, we think it is a close question whether the evidence raised a reasonable doubt that the defendant availed himself of all means to avoid physical combat before resorting to the use of deadly force. Viewing the evidence in the light most favorable to the defendant, the judge found that the defendant initially began to retreat by "[running] away from the shots" (presumed to have been fired by Bodden-Maximo), but then "turned to shoot back towards the source of the shots so as to provide cover as he ran away." There was no evidence, however, that Bodden-Maximo fired additional shots or that he pursued the defendant.

      We are not bound by the Commonwealth's concession at oral argument that counsel's decision was manifestly unreasonable. "[O]ur judicial obligations compel us to examine independently the errors confessed." Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010), quoting from Young v. United States, 315 U.S. 257, 258-259 (1942). Accord Commonwealth v. DeJesus, 468 Mass. 174, 182 n.8 (2014) ; Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 248-249 (2011).

      See note 2, supra. We also note that, because a self-defense theory would have required inquiry into the defendant's subjective state of mind, counsel could rationally have thought that pursuing the theory would allow the prosecutor to emphasize the defendant's postarrest interview, in which he denied that he was even at the scene of the shooting, while making various conflicting statements about his whereabouts on that night.

      In this vein, given the guilty verdict on the manslaughter charge, we think it questionable whether the defendant met his burden of proving prejudice under the second prong of Saferian. See Commonwealth v. Millien, 474 Mass. 417, 432 (2016) ("[A] defense is 'substantial' for Saferian purposes where we have a serious doubt whether the jury verdict would have been the same had the defense been presented"). Cf. Glover, 459 Mass. at 845 ("no serious doubt" that result would have been different had counsel pursued theory of reasonable provocation in addition to theory of self-defense, where "evidence of excessive use of force in self-defense, while itself meager, was stronger than the evidence of reasonable provocation"). But on the view we take of the case, we need not address this issue.

      See Commonwealth v. Rodriquez, 364 Mass. 87, 101-102 (1973) (Appendix A).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. David GOULD.
    16-P-1253
    Appeals Court of Massachusetts.
    Entered: July 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant on indictments charging him with child enticement and disseminating matter harmful to a minor. The defendant now directly appeals his convictions, alleging errors by the trial judge and the prosecutor. He also argues that the Commonwealth did not present sufficient evidence to support his convictions. For the reasons set forth below, we affirm.

Background. The jury were warranted in finding the following facts. In December, 2012, Mike, a twelve year old boy, lived with his grandparents in Dartmouth. Mike was confused about his sexuality and sought the advice of his friend Dana, who was then seventeen years old. Dana suggested that Mike contact the defendant for advice. Mike sent the defendant a friend request on Facebook; the defendant accepted.

Mike and the defendant began corresponding via Facebook's messenger feature. The two exchanged a series of messages between December 27, 2012, and January 4, 2013, that became increasingly sexually explicit. They discussed engaging in various sexual acts with each other, including oral and anal sex. The defendant initiated some of the conversations; Mike initiated others. During these exchanges, the defendant sent Mike several photographs of himself, including a photograph of his covered groin area and one of his exposed penis. The defendant repeatedly urged Mike to reciprocate by sending photographs of himself and of his penis.

The defendant also repeatedly attempted to make plans to meet Mike in person. He encouraged Mike to leave his grandparents' house, or to have his grandparents drop him off in downtown New Bedford, so that they could meet and perform the sexual acts they had discussed. In one message, Mike gave the defendant his grandparents' address; the defendant replied that he would drive by and sent Mike an aerial photograph of a house, which Mike confirmed was his grandparents' house. A few days later, the defendant messaged Mike to tell him that he was on Mike's street. In addition, when Mike told the defendant that he could leave his grandparents' house to walk in the woods behind the house, the defendant replied, "woods are thin except by the pond"; when Mike asked, "u want to do it near the pond?" the defendant answered, "better here in a bed."

A few days later, Mike's aunt discovered these messages and contacted the Dartmouth police.

Discussion. 1. Required findings of not guilty. The defendant first argues that the trial judge should have allowed his motion for required findings of not guilty as to both charges. Specifically, the defendant argues that the Commonwealth did not present sufficient evidence to prove that his conversations with Mike constituted child enticement or dissemination of matter harmful to a minor.

"In reviewing the defendant's motion for a required finding of not guilty, we examine the evidence as it stood at the close of the Commonwealth's case, viewed in the light most favorable to the Commonwealth." Commonwealth v. Schmieder, 58 Mass. App. Ct. 300, 301 (2003). "[W]e must determine whether the evidence presented at trial, together with all reasonable and possible inferences that might properly be drawn from it, was sufficient to permit a rational jury to find beyond a reasonable doubt the existence of every essential element of the crimes charged." Commonwealth v. Arroyo, 442 Mass. 135, 139-140 (2004), citing Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

a. Child enticement. Subsection (b ) of G. L. c. 265, § 26C, as amended by St. 2010, c. 267, §§ 62-64, provides that "[a]ny one who entices a child under the age of 16, or someone he believes to be a child under the age of 16, to enter, exit or remain within any vehicle, dwelling, building, or other outdoor space with the intent that he or another person will violate [one or more several enumerated criminal statutes] shall be punished." The statute defines "entice" to mean, "lure, induce, persuade, tempt, incite, solicit, coax, or invite." G. L. c. 265, § 26C(a ), inserted by St. 2002, c. 385, § 3. "[E]ach of [those acts], according to the commonly accepted meaning of the term, can be accomplished by words (spoken or written) and nothing more." Commonwealth v. Disler, 451 Mass. 216, 222 (2008). While no further action is required, a person who entices must "[do] so with the intent to violate one or more of the enumerated criminal statutes" (emphasis in original). Ibid. The defendant argues that the Commonwealth presented insufficient evidence to support any of the elements other than Mike's age.

Here, the defendant enticed Mike when he invited Mike to leave his grandparents' home and meet him at a predetermined location in the woods (near the pond where he told Mike the woods were not "thin") and that they could then go to the defendant's "bed" and engage in illegal sexual activity. See Disler, supra at 230 ("[The defendant] expressly enticed [the victim] within the meaning of the statute by inviting her to come to his residence"). The invitation was implicit in the defendant's comment that "here [the defendant's home] in a bed" would be the ideal place to have sex, as well as the defendant's repeated suggestions of various schemes in which Mike could get away from his grandparents so he could meet with the defendant. These suggestions offered "specific location[s] chosen by the defendant," Commonwealth v. Hall, 80 Mass. App. Ct. 317, 325 (2011), as potential meeting spots.

In addition, the defendant's sexually explicit statements demonstrated his criminal intent. See Disler, supra at 230 ("The explicit statements he made to [the victim] about the sexual acts he wanted to perform on her ... were sufficient to evidence an intent to commit statutory rape"). Thus, the defendant completed the crime of enticement when, intending to arrange an illegal sexual encounter, he sent messages to Mike in an effort to lure Mike away from his home and grandparents to a specific meeting location. See id. at 222. See also Commonwealth v. Harris, 74 Mass. App. Ct. 105, 117 (2009) ("[U]nder [ G. L. c. 265, § 26C ], the offense is complete when the prohibited 'enticement' occurs, whether or not a violation of the underlying statutes ever takes place"). Therefore, the judge did not err in denying the defendant's motion for a required finding of not guilty on the child enticement charge.

b. Dissemination of matter harmful to a minor. The judge also did not err in denying the defendant's motion on the dissemination charge. General Laws c. 272, § 28, as amended by St. 2011, c. 9, § 19, prohibits "disseminat[ing] to a [minor] any matter harmful to minors, as defined in section 31, knowing it to be harmful to minors." See Commonwealth v. Belcher, 446 Mass. 693, 695 (2006). Here, the defendant sent twelve year old Mike sexually explicit messages and photographs. The defendant knew Mike's age at the time, and from their correspondence it is clear that the defendant intentionally directed each message to Mike. See Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 311 (2011) (dissemination includes distribution of matter to single individual in private online conversation). The defendant does not contest this, but instead argues that "a single photo[graph] of a flaccid penis" does not constitute matter harmful to a minor under our decisional law. However, the defendant is mistaken in his belief that the only "matter" that could support a dissemination conviction was the photograph of his penis, as opposed to the entirety of his correspondence with Mike.

The dissemination statute states that matter is harmful to minors if

"it is obscene or, if taken as a whole, it (1) describes or represents nudity, sexual conduct or sexual excitement, so as to appeal predominantly to the prurient interest of minors; (2) is patently contrary to prevailing standards of adults in the county where the offense was committed as to suitable material for such minors; and (3) lacks serious literary, artistic, political or scientific value for minors."

G. L. c. 272, § 31, as amended through St. 1982, c. 603, § 6. To prove that matter is obscene, the Commonwealth must show that, "taken as a whole it (1) appeals to the prurient interest of the average person applying the contemporary standards of the county where the offense was committed; (2) depicts or describes sexual conduct in a patently offensive way; and (3) lacks serious literary, artistic, political or scientific value." G. L. c. 272, § 31, as amended by St. 1982, c. 603.

Here, the defendant's correspondence with Mike "makes no pretensions to 'serious literary, artistic, political or scientific value.' " Commonwealth v. Mienkowski, 91 Mass. App. Ct. 668, 672 (2017). Viewing the entirety of the correspondence in context, the descriptions of the sexual acts that the defendant planned to engage in with Mike describe sexual conduct in a patently offensive way that plainly appeals to the prurient interest of an average person. See Commonwealth v. Plank, 378 Mass. 465, 469 (1979) ("[T]he issue of patent offensiveness is to be decided in context"). The entire conversation, particularly when viewed in context with the messages exchanged before and after December 28, 2012, demonstrated the defendant's efforts to get Mike to send nude or semi-nude photographs of himself and to meet and engage in sexual activity. Thus, "it is 'impossible to believe that any competent adult would be surprised that this conduct would be proscribed.' " Mienkowski, supra at 673, quoting from Commonwealth v. Nuby, 32 Mass. App. Ct. 360, 363 (1992). Therefore, we conclude that the evidence was sufficient to establish that the matter the defendant disseminated to Mike was obscene, and thus harmful to minors.

2. Evidentiary issues. The defendant next argues that the trial judge erroneously allowed testimony regarding his sexual relationship with Dana, then a minor, which he claims constituted prejudicial propensity evidence. He also argues that it was improper for the Commonwealth to cross-examine the defendant's technology expert, over his objection, regarding the presence of sexually explicit photographs on the defendant's cellular telephone.

a. Relationship with Dana. Generally, evidence of a defendant's prior bad acts is inadmissible for the purpose of demonstrating the defendant's propensity to commit the crimes charged. Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). However, such evidence may be admissible for another purpose, such as "establish[ing] motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation." Ibid. See Mass. G. Evid. § 404(b) (2018). "The question of admissibility of bad act evidence and whether a stated purpose is permissible will largely depend on the circumstances of each case, and admissibility is properly left to the sound discretion of the trial judge." Commonwealth v. Butler, 445 Mass. 568, 574-575 (2005).

Here, the development of the defendant's relationship with Dana mirrored the trajectory of the defendant's relationship with Mike. Although the defendant and Dana first met in person, they subsequently engaged in correspondence via Facebook and text messaging. Like the defendant's conversations with Mike, those exchanges began platonically, but then became sexually explicit. Eventually, the defendant and Dana, then age seventeen, engaged in physical sexual activity. This evidence was relevant because one of the elements that the Commonwealth must prove in a child enticement prosecution is that the defendant intended to engage in criminal activity. See Disler, 451 Mass. at 222. Since intent is often not susceptible to direct proof, the Commonwealth must frequently resort to alternative sources of evidence. Commonwealth v. Casale, 381 Mass. 167, 173 (1980). Here, the similarity between the defendant's relationships with Dana and Mike and their temporal proximity were probative of his intent to engage in sexual activity with Mike. See Commonwealth v. Wallace, 70 Mass. App. Ct. 757, 765 (2007) (defendant's possession of photographs of young girls probative of whether he intentionally touched young girl). Furthermore, the defendant's relationship with Mike began through Dana, who put Mike in touch with the defendant when Dana encouraged Mike to speak with the defendant after Mike confided in Dana about his sexual confusion. Thus, the judge properly admitted evidence of the defendant's sexual relationship with Dana because it "was inextricably intertwined with the facts of the case and essential to the jury's understanding of the entire picture." Commonwealth v. Ryan, 79 Mass. App. Ct. 179, 188 (2011).

b. Cross-examination of expert. The defendant also argues that it was improper for the prosecutor to cross-examine the defendant's technology expert regarding the presence of sexually explicit photographs on the defendant's cellular telephone. Again, while evidence may not be used to suggest a defendant's propensity to commit a certain crime, "it is admissible for other relevant probative purposes." Commonwealth v. Tobin, 392 Mass. 604, 613 (1984) (quotation omitted). Here, part of the defense strategy was to suggest that someone other than the defendant might have sent Mike the inappropriate messages and photographs. It is clear that the prosecutor's purpose in questioning the expert on the photographs was to rebut such a suggestion, not to suggest that the defendant was predisposed to commit the charged conduct. See Commonwealth v. Avila, 454 Mass. 744, 754-756 (2009) (prosecution entitled to elicit testimony that rebuts defendant's defense). Thus, there was no error.

3. Unanimity instruction. Finally, the defendant argues that the trial judge should have given the jury a specific unanimity instruction regarding the child enticement charge, because jurors may have convicted the defendant without agreeing on which of the enumerated offenses he intended to commit when he enticed Mike. We disagree. While it is generally true that "a specific unanimity instruction is appropriate when there is evidence of alternate incidents that could support the charge," Commonwealth v. Federico, 70 Mass. App. Ct. 711, 719 (2007) (quotation omitted), the defendant is mistaken that one was required here. In this case, there was no evidence of separate incidents that could serve as a basis for the defendant's conviction. Rather, "[the defendant's] conviction was based on a series of electronic 'instant messages' he exchanged with [Mike]." Disler, 451 Mass. at 218. Thus, the general rule that "when a jury are instructed on two different theories of guilt and return a general verdict, there must be a new trial if the evidence could permit the jury to convict the defendant under only one theory," is not applicable here, because the enumerated crimes in the enticement statute "are not separate theories .... [They] are simply different ways of proving that the defendant" possessed the requisite criminal intent. Commonwealth v. Oquendo, 83 Mass. App. Ct. 190, 193-194 (2013).

Judgments affirmed.

      A pseudonym. See G. L. c. 265, § 24C.

      A pseudonym.

      This case did not implicate every statute that could underlie a prosecution for child enticement. Here, the judge informed the jurors that they could convict the defendant only if the Commonwealth proved the defendant's intent to violate at least one of the following statutes: G. L. c. 265, § 13B (indecent assault and battery on a child under fourteen); G. L. c. 265, § 22A (rape of a child); G. L. c. 265, § 23 (rape and abuse of a child); G. L. c. 272, § 16 (open and gross lewdness); G. L. c. 272, § 29A (posing or exhibiting a child under eighteen in a state of nudity or sexual conduct).

      Despite the defendant's assertion to the contrary, it was not legally or factually impossible for the defendant to commit child enticement simply because Mike's grandparents would not let him leave the house. "Legal impossibility occurs when the actions which the defendant performs or set in motion, even if fully carried out as he desires, would not constitute a crime. Factual impossibility occurs when the objective of the defendant is proscribed by the criminal law but a [physical] circumstance unknown to the [defendant] prevents him from [accomplishing] that [intended] objective." Commonwealth v. Bell, 67 Mass. App. Ct. 266, 270 (2006) (quotations omitted), S.C., 455 Mass. 408 (2009). As stated supra, "the offense [was] complete when the prohibited 'enticement' occur[red]," even though no violation of the underlying statutes took place. Harris, supra at 117. Here, it was clearly legally and factually possible for the defendant to commit child enticement. This also necessarily dispenses with the defendant's argument that the judge unconstitutionally expanded the child enticement statute by punishing the defendant for an attempted enticement, rather than a completed act.

      "Matter" includes "any electronic communication including ... electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet." G. L. c. 272, § 31, as amended by St. 2010, c. 74, § 2.

      The judge's jury instructions apparently conflated the "obscenity" prong of the statute with the "alternate" prong, essentially giving the jury only the option to convict the defendant under the obscenity test. See Commonwealth v. Militello, 66 Mass. App. Ct. 325, 331-332 (2006) (describing "obscenity test" and "alternate prong").

      For example, on December 27, 2012, the defendant sent Mike a photograph of his covered groin area, prompting Mike to respond, "I really want that in my mouth." The defendant said that he "wish[ed] [Mike] could send a pic," and asked Mike to "describe [his] penus [sic]." The defendant then told Mike he was "leaking so much pre-cum." Similarly, on December 29, when Mike told the defendant he "just got done jacking," the defendant asked Mike to "save [him] some" and "wish[ed]" they would have oral sex "eventually." The defendant then said, "Dude pre-cum already ... DAMN my dick likes you and I haven't even seen your tool yet." When Mike says that he does not want to show his penis until they meet in person, the defendant persists and asks Mike to "snap a quick one" and called him "such a tease" when Mike refuses.

      The defendant's relationship with Dana predated his correspondence with Mike by approximately one month.


text:
    COMMONWEALTH v. Sandra Santana GARCIA.
    17-P-770
    Appeals Court of Massachusetts.
    Entered: July 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the denial of her motion to vacate her guilty plea, claiming deficiency in the advisement of immigration consequences, to which she was entitled pursuant to G. L. c. 278, § 29D. We affirm.

Background. In 2000, the defendant pleaded guilty to trafficking in a class B substance over fourteen grams and conspiracy to traffick in a class B substance. In 2011, the defendant filed a motion to vacate the trafficking conviction based on her claim that she was not given the alien warnings required by G. L. c. 278, § 29D. Since the plea judge had retired, another Superior Court judge heard the motion. A transcript of the plea colloquy is not available. The motion judge denied the motion to vacate after a nonevidentiary hearing.

Discussion. 1. Standard of review. A motion for new trial is the proper procedural vehicle by which a defendant may seek to vacate a guilty plea. Commonwealth v. Scott, 467 Mass. 336, 344 (2014). A judge may grant a motion for new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), "if it appears that justice may not have been done." We review the denial of a motion for new trial "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). In reviewing motions for withdrawal of pleas on grounds of inadequate alien warnings, the focus of review is the sufficiency of the record of the warning. When faced with the question whether there is a record of the warnings, the burden is on the Commonwealth to furnish an adequate record to preclude the statutory presumption the warnings were not provided. See Commonwealth v. Diaz, 75 Mass. App. Ct. 347, 350-351 (2009). Because the motion judge was not the plea judge, we are "in as good a position as the motion judge to assess" the record, and defer only on matters of credibility. Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016), quoting from Grace, 397 Mass. at 307.

2. Alien warnings. Pursuant to G. L. c. 278, § 29D, if a judge taking a guilty plea fails to give alien warnings and the defendant shows that her plea and conviction may have one of the enumerated consequences, the judge is required to permit the defendant to withdraw the plea. Indeed, unless there is a record that the warnings were provided, "the defendant shall be presumed not to have received the required advisement." Diaz, 75 Mass. App. Ct. at 350, quoting from § 29D, as appearing in St. 1996, c. 450, § 254.

The defendant's affidavit in support of her motion claims that during the plea hearing the court did not inform her that by pleading guilty "[she] could be deported from the United States." Due to the passage of time, there is no transcript of the 2000 plea colloquy, and the plea judge has retired. The defendant contends that she is entitled to a presumption that the warnings were not given since no record exists establishing that she received the required warnings from the plea judge. In an effort to reconstruct the record, the Commonwealth supplied the motion judge with a waiver of rights form signed by the defendant and her attorney. The waiver of rights form contains a confirmation by the defendant and her attorney that she had been advised of the alien warnings by the judge. Here, the motion judge found that the waiver of rights form provides a sufficient record to overcome the presumption that the defendant did not receive the necessary warnings. See Commonwealth v. Hilaire, 437 Mass. 809, 818 n.5 (2002) ("[S]econdary sources, such as the preprinted [waiver of rights] form ... suffice in the absence of an official transcript"). See also Commonwealth v. Rzepphiewski, 431 Mass. 48, 52-53 (2000) ; Diaz, 75 Mass. App. Ct. at 351 n.6. The motion judge found that the waiver of rights form in conjunction with the plea judge's acceptance of the defendant's plea were sufficient to show the alien warnings were provided. Upon review of the record we agree, for the same reasons as the motion judge, that the Commonwealth has furnished an adequate record to rebut the presumption that the warnings were not provided in the present case and that the record evidence establishes that the defendant "received the warnings required" by G. L. c. 278, § 29D.

We discern no clear error of law or abuse of discretion in the motion judge's denial of the defendant's motion to withdraw her plea. The motion judge correctly points out that "[o]ther than her own self serving affidavit, the defendant has offered nothing to support her claim that the judge did not give her the required alien warnings." The motion judge was free to discredit the defendant's affidavit. "A judge is not required to accept as true the allegations in a defendant's affidavit, even if nothing in the record directly disputes them." Rzepphiewski, supra at 55. Further, as noted by the motion judge, "no affidavit has been filed by an assistant clerk magistrate of the session or defense counsel of record on the plea." See Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004) ("[A] judge may take into account the ... failure to provide pertinent information from an expected and available source"); Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015) ("[T]he credibility, weight, and impact of the affidavits are entirely within the motion judge's discretion").

Order denying motion for new trial affirmed.


text:
    Tony B. GASKINS & another v. Michael RODRIGUES & others.
    17-P-1128
    Appeals Court of Massachusetts.
    Entered: July 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Buthchhay Chourb.

      C.O Bardier, Jens B. Swanson, Kevin A. Shepard, and Michael Rumery. We reproduce the spelling of the defendants' names as they appear in the amended complaint. All of the defendants are named individually and in their official capacity as officials of MCI-Cedar Junction and Souza Baranowski Correctional Center.

   The plaintiffs, Tony Gaskins and Buthchhay Chourb, appeal from a judgment of dismissal of their amended complaint. We affirm.

The plaintiffs are prisoners in lawful custody of the Department of Correction (DOC). The defendants are various correction officers and officials. As alleged, the defendants at various times improperly lost, destroyed, allowed to be stolen by unknown persons, or confiscated as "contraband" some of the plaintiffs' personal property. All of the individual incidents alleged have been the subject of grievance procedures initiated by either Gaskins or Chourb.

In their present action, purportedly under G. L. c. 231A (declaratory relief) and 42 U.S.C. § 1983 (Federal civil rights violations), the plaintiffs seek declarations that certain State regulations have "the force of law" and that their personal property "must be returned to" them; that they have "a right ... to the safekeeping and delivery of their property"; and that any lost or destroyed property "must be replaced in full or [the plaintiffs] be fully compensated monetarily for their loss." The judge denied the plaintiffs' motion for a temporary injunction; the judge later, on the defendants' motion pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), dismissed the plaintiffs' amended complaint.

As the judge observed, "Although framed as a suit for declaratory judgment ..., plaintiffs' complaints are more properly challenging the application of those regulations to grievances each plaintiff filed at one or more DOC institutions. As such, there is an adequate remedy at law without need for declaratory relief." See G. L. c. 127, § 38H, inserted by St. 1999, c. 127, § 133 ("A final decision with respect to a grievance shall be subject to judicial review in accordance with section 14 of chapter 30A"); Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 135-136 (2013). The plaintiffs have not alleged "sufficient facts [demonstrating that DOC] has 'practices or procedures ... in violation of the Constitution of the United States ... which ... ha[ve] been consistently repeated.' " Id. at 137 n.9, quoting from G. L. c. 231A, § 2. In sum, the judge properly dismissed the plaintiffs' claims under the declaratory relief act.

The judge's dismissal of the plaintiffs' § 1983 claims was also proper. To succeed under § 1983, the plaintiffs must first "prove that the defendant[s] ha[ve] deprived [them] of a right secured by the 'Constitution and laws' of the United States." Mancuso v. Massachusetts Interscholastic Athletic Assn., 453 Mass. 116, 122-123 (2009), quoting from Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). The plaintiffs' allegations did not implicate such a right, and were therefore properly dismissed under rule 12(b)(6). See Parratt v. Taylor, 451 U.S. 527, 542 (1981) (due process only implicated by claims of deprivation of property by State actors if no remedy available under State law), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 329-330 (1986).

Judgment affirmed.


text:
    COMMONWEALTH v. Lyndsay J. MARQUES.
    17-P-918
    Appeals Court of Massachusetts.
    Entered: July 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from her conviction of operating a motor vehicle while under the influence of intoxicating liquor (OUI), second offense. On appeal, the defendant's principal claim is that the admission in evidence of the arresting State trooper's lay opinion that the defendant was "under the influence of alcohol" was prejudicial error. We affirm.

Lay opinion. The defendant maintains that the trooper's testimony that the defendant was "under the influence of alcohol" was error because it violates the central holding of Commonwealth v. Canty, 466 Mass. 535, 545 (2013). The defendant objected to the trooper's testimony at trial so we review for prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

"In a prosecution for operating a motor vehicle while under the influence of alcohol, lay witnesses, including police officers, may not opine as to the ultimate question whether the defendant was operating while under the influence, but they may testify to [her] apparent intoxication." Canty, supra at 541, quoting from Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012). As discussed in Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 389-390 (2017), although the holding of Canty prohibits lay opinion testimony whether "the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely," it does not prohibit all opinions as to the defendant's "level of intoxication." This is because the former type of testimony addresses the ultimate question of guilt or innocence, while the latter is well within the realm of proper lay opinion. See id. at 389 ("A lay opinion, as opposed to an expert opinion, is admissible 'only where it is "[a] rationally based on the perception of the witness; [b] helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and [c] not based on scientific, technical, or other specialized knowledge." ' Commonwealth v. Canty, supra, quoting from Mass. G. Evid. § 701 [2013]").

Here, the trooper only testified that he "formed the opinion the defendant was under the influence of intoxicating liquor." Such testimony is not an impermissible opinion whether the defendant's intoxication impaired her ability to operate a motor vehicle. Rather, the trooper's testimony was limited to the defendant's level of intoxication, a subject the jury can understand through common experience and knowledge. Compare Commonwealth v. Sands, 424 Mass. 184, 187-188 (1997). In these circumstances, the trooper's use of the phrase was permissible. See Gallagher, supra at 389 (stating that "under the influence of alcohol" is proper lay testimony). Accordingly, we discern no error in the admission of the trooper's lay opinion.

In the alternative, the defendant contends that the expertise of the trooper led to his lay opinion being "misunderstood by jurors as testimony based on scientific, technical, or other specialized knowledge." Gallagher, supra at 399 (Agnes, J., dissenting). See Canty, supra at 541 n.5. Prior to providing his lay opinion, the trooper testified that he was certified to teach the subjects of OUI arrests and standardized field sobriety tests. The trooper also testified he has no less than four certifications as a teacher on the subject of OUIs, has taught on those subjects for eighteen years, and has taught at every municipal police academy in Massachusetts as well as various police academies in Rhode Island, New Hampshire, and Arizona. We recognize "[t]he danger posed ... 'that the jury might forego independent analysis of the facts and bow too readily to the opinion of an expert or otherwise influential witness.' " Canty, supra at 542-543, quoting from Commonwealth v. LaCorte, 373 Mass. 700, 705 (1977). However, the prosecution was careful to elicit from the trooper that his observations were "not really expert knowledge" and also that it was just "[the trooper's] personal opinion." This limited direct examination combined with the judge's instruction that the jury may reject the officer's opinion about the defendant's sobriety sufficiently reduced the risk of prejudice considered in Canty and Gallagher. Thus, we see no prejudicial error in the admission of the trooper's training and experience and his opinion regarding the defendant's level of intoxication.

Other claims. The defendant also argues that various preserved and unpreserved errors at trial resulted in the infringement of the defendant's right to a fair trial. See Flebotte, supra at 353 (preserved); Commonwealth v. Freehold, 352 Mass. 556, 563-564 (1967) (unpreserved). We address each argument in turn.

First, the defendant contends that the prosecutor's unanswered question to the trooper on direct examination resulted in the jury considering evidence that the defendant refused to attempt a field sobriety test. See Commonwealth v. AdonSoto, 475 Mass. 497, 500 (2016) (refusal evidence cannot be introduced by prosecution based on defendant's privilege against self-incrimination under art. 12 of Massachusetts Declaration of Rights). Here, we find no prejudice where the judge properly excluded the evidence before the witness was able to respond and also provided a correct jury instruction that questions are not evidence. Additionally, the record provides no basis for any claim that the prosecutor acted in bad faith by posing an objectionable question in an attempt to make the jury consider facts not placed in evidence or circumvent the defendant's privilege against self-incrimination. See Commonwealth v. Granito, 326 Mass. 494, 498-499 (1950).

Second, the defendant argues that the emotional response from the trooper on cross-examination created a substantial risk of a miscarriage of justice. The defendant claims now that the trooper's testimony referencing another trooper being killed when pulling a driver over was so prejudicial that a mistrial was required. Emotional outbursts are not uncommon in criminal trials, and we give substantial deference to the judge's effort to adequately remedy such error. See, e.g., Commonwealth v. Martinez, 437 Mass. 84, 89-90 (2002). Here, to prevent prejudicing the jury, the judge took a recess for the trooper to regain his composure. The judge also instructed the jury not to be swayed by sympathy. We presume the jury followed that instruction. See Commonwealth v. Helfant, 398 Mass. 214, 228-229 (1986). After considering the record as a whole, we are convinced that there was no substantial risk of a miscarriage of justice.

Judgment affirmed.

      The defendant was also found responsible of two civil infractions which were placed on file.

      The trooper's description of the defendant's "cyclical mood swings" as a sign and symptom was acceptable lay witness testimony. See, e.g., Commonwealth v. Lopes, 85 Mass. App. Ct. 341, 345 (2014). See also Commonwealth v. Bishop, 78 Mass. App. Ct. 70, 71-72 (2010).

      Similarly, we find no error in the prosecutor's use of the word "intoxicated" during opening statement and closing argument; the judge properly instructed the jury on the elements of the crime charged.

      We recognize that in the prosecution's opening statement and closing argument, the prosecutor attempted to connect the officer's training and experience and his lay opinion. However, we see no substantial risk of a miscarriage of justice. See Commonwealth v. Resende, 476 Mass. 141, 154 (2017).

      The questioning was as follows:
      The prosecutor : "And at that point did you have her perform any further field sobriety test?"
      The trooper : "I did not. The next field-sobriety test that would have been performed is known as the ..."
      Defense counsel : "Objection."
      The Court : "Sustained."
      The prosecutor : "Did you have her perform that one-legged stand?"
      Defense counsel : "Objection."
      The Court : "Sustained."


text:
    CARE AND PROTECTION OF ANDERS.
    17-P-1593
    Appeals Court of Massachusetts.
    Entered: July 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   In November of 2016, the Department of Children and Families (department) filed a care and protection petition under G. L. c. 119, § 24, alleging that Anders was at risk of neglect by his mother. After a trial in July of 2017, the judge adjudicated Anders, then six years old, in need of care and protection, finding that the department had proved by clear and convincing evidence that the mother was currently unfit. Both the mother and Anders appeal. We reverse.

Background. The judge made the following findings. The mother, who was thirty-eight years old at the time of trial, has three children by different fathers. She graduated from high school, attended vocational school, and has maintained steady employment. When the mother was sixteen years old, she was involved in a serious car accident, causing her to sustain a brain injury. The maternal grandparents told the court investigator that, as a result of her brain injury, the mother "can't remember what happened and often behaves like she is stuck on age [sixteen]; hence, the bad decisions about who would father her children and her difficulty in setting boundaries and discipline for the boys."

The department filed the underlying care and protection petition following a report that Anders was exhibiting serious behavioral issues and "had made sexualized comments resulting in a SAIN [Sexual Abuse Intervention Network] interview." Specifically, Anders had made the following comments regarding his uncle, the mother's brother: "I call my uncle big daddy" and "I get on all fours and he pisses up my a-hole." The mother admitted at trial that she told Anders and his brother not to mention their uncle's name during the SAIN interview; she acknowledged, however, that she should not have done so.

The children were removed from the mother's care after the SAIN interview. Prior to their removal, Anders and his brother were always fighting and would sometimes become physical with each other. On one occasion a social worker observed them "throwing large boxes down the stairs, taking medication off the counter, and going in and out of the freezer." The social worker characterized the brother as the "main instigator." At that time Anders was attending therapy at the Brien Center on a weekly basis. The mother sought additional services for Anders after he was asked to leave a YMCA because of his alarming behavior.

After the children were removed, the mother cooperated with the department and complied with her service plan tasks, including working with a "parent-partner," visiting consistently with the children, and attending appointments with "ICC" and "Key Tracking." The judge found, however, that there was still "a concern ... with [the] [m]other's ability to follow through with the services." The judge cited the following examples: (1) the mother was asked to post a list of home rules, which she did, but once it blew off the wall, she failed to hang it back up; (2) during visits she would redirect Anders when he engaged in bad behaviors and name calling, but did not impose "any discipline such as time outs or strict enforcement of the rules"; (3) she does not understand the importance of Key Tracking "but continues to do it because that is what she was told to do"; (4) she failed to follow through with signing up Anders's brother for a daycare slot and instead used his father as a daycare resource; (5) she failed to make the necessary telephone calls to maintain Anders on a waiting list for behavioral therapy ; and (6) she was not forthcoming with the department about her new boy friend, who had a number of unsupported G. L. c. 119, § 51A, reports filed against him. The judge also found that Anders has "a terrible swearing problem," which he "learned from hearing [the] mother speak that way."

Discussion. The judge's findings do not suffice to show that the department met its burden of proving parental unfitness by clear and convincing evidence. "Parental unfitness ... means more than ineptitude, handicap, character flaw, conviction of a crime, unusual life style, or inability to do as good a job as the child's foster parent. Rather, the idea of 'parental unfitness' means 'grievous shortcomings or handicaps' that put the child's welfare 'much at hazard.' " Adoption of Greta, 431 Mass. 577, 587 (2000), quoting from Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997).

Here, the concerns regarding the mother's parenting abilities centered around her difficulties in managing Anders's behavioral issues. But those behavioral issues appeared to stem in large part from Anders's conflict with his brother, who was no longer living in the mother's home by the end of trial. Furthermore, it is undisputed that, once the children were removed, the mother visited them consistently and complied with her service plan. In fact, the mother gave uncontested testimony that she was found in "full" compliance with her service plan at the last foster care review meeting. The few missteps committed by the mother do not establish by clear and convincing evidence that she is unfit. In so concluding, we do not mean to minimize the significance of some of these missteps. In particular, the judge was justifiably concerned by the mother's failure to follow through with maintaining Anders on a waiting list for behavioral therapy and her failure to disclose that her new boy friend, who had a potentially concerning history, was spending nights at her home. But those concerns were ameliorated by evidence that Anders was still going to the Brien Center for therapy on a weekly basis, and that the mother disclosed her boy friend's information upon request and complied with an emergency plan prohibiting him from coming to the home. As for the remaining concerns cited by the judge, it suffices to say that they do not rise to the level of "grievous shortcomings or handicaps" that put Anders's welfare at risk. Adoption of Greta, 431 Mass. at 587.

As the department notes, because this is not a termination of parental rights case, the judge's findings would not preclude reunification of Anders with the mother in the future. But even in a care and protection proceeding, the burden of proof on the department to prove current unfitness is "heavy." Care & Protection of Elaine, 54 Mass. App. Ct. 266, 271 (2002). "The requisite proof must be strong and positive; it must be 'full, clear and decisive.' " Ibid., quoting from Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998). The evidence here is insufficient to meet that high standard.

Judgment reversed.

      The department also alleged that Anders's older sister and brother were in need of care and protection. A judge of the Juvenile Court dismissed the sister from the petition, and trial proceeded as to Anders and his brother only. After finding the mother currently unfit, the judge, acting on a motion of the brother's biological father, dismissed the brother from the petition because his father had filed a complaint for full custody in Probate and Family Court. Only the judgment regarding Anders is at issue in this appeal.

      The mother and Anders contend that many of the judge's findings are clearly erroneous. The department more or less concedes that the judge clearly erred in finding that the "[m]other did not share the [department's] or the court's concerns with [Anders's hair-pulling] behavior." On the view we take of the case, we can assume, without deciding, that the remaining findings are not clearly erroneous.

      A neuropsychologist evaluated the mother and concluded that, despite her brain injury, the mother is "quite bright," has no "deficits in judgment and reasoning," and any concern that "cognitive deficits... were interfering with her ability to accurately parent" would not be "justified." The judge did not mention the neuropsychologist's report in her findings.

      The allegations of sexual abuse were ultimately unsupported.

      According to the parties' briefs, "ICC" stands for intensive care coordination and is a program that facilitates care planning and coordination of behavioral health services, while "Key Tracking" is a program that provides various support services to families based on their individual needs. The record does not contain any of this information. The department also did not submit any service plans or foster care review reports in evidence.

      On the second day of trial, the department reported that it had placed the brother with his biological father.


text:
    COMMONWEALTH v. Vincent A. TISCIONE, Third.
    17-P-734
    Appeals Court of Massachusetts.
    Entered: July 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Vincent A. Tiscione, III, was convicted by a jury in the Superior Court on two counts of possession of a firearm without a firearm identification (FID) card in violation of G. L. c. 269, § 10(h )(1) ; two counts of possession of ammunition without an FID card in violation of G. L. c. 269, § 10(h )(1) ; and two counts of failure to secure a firearm in violation of G. L. c. 140, § 131L(a ), (b ). At a subsequent jury-waived trial, a Superior Court judge convicted the defendant on four counts of having committed the firearm and ammunition offenses after a prior conviction of a violent crime or serious drug offense, subjecting him to enhanced penalties under G. L. c. 269, § 10G(a ). The defendant appeals from his convictions. The defendant maintains four arguments on appeal: (1) the judge abused his discretion in discharging a deliberating juror; (2) the judge erred in admitting evidence of the defendant's prior bad acts; (3) the prosecutor's closing argument improperly argued facts not in evidence to bolster the charge of constructive possession, playing to the sympathies of the jury; and (4) the judge erred in denying the defendant's motion for required findings of not guilty because there was insufficient evidence to prove he had constructive possession of the firearms. We affirm.

Background. 1. Factual background. The jury could have found the following facts. The defendant was dating Trisha Gain and both were living in Dorothy Gain's apartment. Trisha's three children, Trisha's siblings, Ashleigh and Tabitha, and Ashleigh's two children also resided in Dorothy's apartment. A few weeks prior to June 28, 2013, Trisha was arguing with one of Dorothy's friends, Dennis Berry, in the living room of the apartment. The defendant told Berry to move away from Trisha. When Berry did not comply, the defendant went to the bedroom that was known as his and returned to the living room with a shotgun and pointed it at Berry. After the argument ceased, Dorothy observed the defendant place the shotgun under a mattress in his bedroom.

A few days before June 28, 2013, the defendant's friend, Shawn Michaels, arrived at the apartment with a firearm secured to his waist. Michaels entered the defendant's bedroom. Thereafter, Dorothy entered the defendant's bedroom and observed the defendant in possession of the handgun. The defendant placed the handgun in the bedroom closet. Dorothy told the defendant that she hoped the handgun would "not stay[ ] here," to which the defendant responded that he would get rid of it.

On June 28, 2013, Trisha and Ashleigh were arguing in the apartment. Trisha and the defendant left the apartment, and Dorothy, concerned for safety, used a key to enter the defendant's bedroom and retrieve the handgun from the closet. She located the handgun that the defendant placed in the closet but was unable to locate the shotgun she previously observed the defendant place underneath the mattress. Dorothy put the handgun in a grocery bag with the defendant's identification card and hid the bag containing both items in a hole in one of the walls of the apartment. The defendant and Trisha returned to the apartment, and Trisha and Ashleigh began arguing again. Dorothy called the police as the argument progressed. Prior to the police arriving, Dorothy overheard the defendant tell Ashleigh that "[h]e was going to shoot her and the kids and come back and rape their corpse." The defendant then asked, "Where's my gun? Where my F-ing gun?" Dorothy observed the defendant searching the bedroom closet for the gun. Prior to leaving the apartment with Trisha, the defendant stated, "I'll be back, and you better find my F-ing gun." Ashleigh testified that in March, 2013, she sat with the defendant on a porch and he told her that he "got me some guns."

Upon the police arriving at the apartment, Dorothy showed the officers where she hid the defendant's handgun, i.e., in a hole in one of the walls of the apartment, and she informed the officers that there might be other guns in the home, namely the shotgun she observed the defendant place under the bedroom mattress. The officers secured the bedroom until a search warrant was obtained. Upon searching the bedroom, the officers recovered a box of .357 Magnum cartridges; a shotgun with twelve-gauge shotgun shells attached to it; and paperwork that had the defendant's name, including a driver's license, a motel receipt, and a letter to the defendant from "Mass. DOT." The officers also located a black safe on a shelf inside the bedroom closet. A holster, knife, several boxes of ammunition of various calibers, and shotgun shells were located inside the black safe. A second safe was located in the closet. The second safe contained a credit card, health insurance card, and receipts with the defendant's name on them.

2. Jury deliberations. The jury's deliberations started on the second day of trial and lasted for about an hour before the jurors were dismissed for the day. Deliberations resumed on the third day, and after approximately an hour and a half the jury submitted two notes to the judge. , After the judge instructed the jury on their questions, they resumed deliberations. Sometime prior to 2:00 P.M. , juror number forty-four removed herself from the deliberation room and told the court officer that she could no longer continue with deliberations. After refusing to rejoin the jury upon the judge's request, the judge halted deliberations. In the presence of both parties, the judge conducted two colloquies with juror number forty-four, during which the judge observed that the juror was "visibly upset." The juror explained to the judge that she was upset because she had several family health issues. The judge discharged the juror, determining that good cause existed because the juror "no longer ha[d] an ability to participate as a juror in this case." The remaining jury and the alternate juror began deliberations anew at approximately 2:00 P.M. At approximately 3:30 P.M. , the jury reached a verdict for each charge.

Discussion. 1. Discharging a deliberating juror. "The discharge of a deliberating juror is a sensitive undertaking and is fraught with potential for error. It is to be done only in special circumstances, and with special precautions." Commonwealth v. Connor, 392 Mass. 838, 843 (1984). General Laws c. 234, § 26B, and G. L. c. 234A, § 39, set forth the special circumstances in which a judge may discharge a deliberating juror. The Supreme Judicial Court has construed both statutes to permit dismissal "only [for] reasons personal to a juror, having nothing whatever to do with the issues of the case or with the juror's relationship with his fellow jurors." Connor, supra at 844-845. See Commonwealth v. Sanders, 451 Mass. 290, 306 (2008), citing Commonwealth v. Francis, 432 Mass. 353, 367-369 (2000). "Allowing discharge only for personal reasons ensures that such action will not 'affect the substance or the course of the deliberations.' " Commonwealth v. Swafford, 441 Mass. 329, 336 (2004), quoting from Connor, supra at 845 n.4. "[A] judge must hold a hearing adequate to determine whether there is good cause to discharge [the] juror." Connor, supra at 843-844.

"At the hearing, the issues of the case and the juror's relationship to his fellow jurors are not to be discussed." Id. at 845. "If the 'problem' juror is questioned, the judge should preliminarily inform him that he cannot be discharged unless he has a personal problem, unrelated to his relationship to his fellow jurors or his views on the case. Unless the juror indicates a belief that he has such a problem, all questioning should cease." Ibid. (footnote omitted). "In an appropriate case, after an appropriate hearing and on the basis of appropriate findings, a judge may be in a position to conclude, without the assistance of medical experts, that a juror has a mental or emotional aberration, personal to the juror and unrelated to the merits of the case or the jury's deliberations, and that there is, therefore, good cause to discharge the juror." Id. at 846. "Finally, if and when a deliberating juror is discharged, the judge must instruct the remaining jurors 'not only to begin deliberations anew (see G. L. c. 234, § 26B ) but also that the reason for discharge is entirely personal and has nothing to do with the discharged juror's views on the case or his relationship with his fellow jurors.' " Commonwealth v. Garcia, 84 Mass. App. Ct. 760, 767 (2014), quoting from Connor, supra at 845-846.

Here, the defendant argues that the judge's discharge of juror number forty-four was error because the juror's reason for refusing to continue with deliberations was not personal, and the juror's discharge affected the course of deliberations and substantially prejudiced the defendant. The defendant also argues that because the judge did not specifically ask the juror "whether her issue was entirely personal or if it was somehow related to the case," the hearing was procedurally defective. After close review of the record, we conclude that the judge followed the required discharge procedures, and the juror's personal issues were such that satisfied the good cause requirement.

During the hearing, the judge asked the juror, "I don't want to inquire about what you were deliberating about or what the issue was, but can you tell me in a general or generic sense as to why you didn't wish to go back in?" The juror responded that there were a couple of jurors "being argumentative" and that it was "enough to upset [her]," however, she did not feel threatened in any way. The juror stepped away and the judge, during discussions with both counsel, was not satisfied that the juror had a personal problem and that "[a]t least preliminarily, it sounds like" the juror's problem "relates to her views on the case." The juror was called back for further questioning during which she explained her mental state in more detail:

"Well, my dad has dementia, so I'm worried about him. My sister's husband has end-stage Alzheimer's, and she's meeting with an attorney today about the will. My husband had hip surgery a month ago. My daughter's father-in-law had open-heart surgery two weeks ago; and it's just a lot. I feel like I should be with family."

The juror went on to state, "I didn't think we would be here this long. I feel like I should be with my family; and the people in there-it's just arguing, and I'm uncomfortable." Such an explanation satisfactorily answered whether the juror's issue was entirely personal or if it was somehow related to the case. The judge determined, and we agree, that good cause existed to discharge the juror based on her "personal life experiences, the burdens in her life," and "her personal emotional state, given her life issues at present." Such emotional issues had overwhelmed her "beyond the level that often accompanies deliberations," causing her to no longer have the ability to participate as a juror. Garcia, supra at 768.

Furthermore, the judge properly instructed the remaining jury about starting deliberations anew and that juror forty-four's discharge was entirely personal. See Connor, 392 Mass. at 846 (jury must be instructed "that the reason for discharge is entirely personal and has nothing to do with the discharged juror's views on the case or [her] relationship with [her] fellow jurors"). The defendant's claim that juror forty-four was in the minority view and that her "disagreement with other jurors about the verdicts" was the basis for her refusal to continue deliberations is without support in the record. The defendant relies on the jury's note to the judge, which was time stamped 11:35 A.M. and stated that it was deadlocked on two charges. This note, however, did not make it to the judge until after juror forty-four was discharged, and, in any event, did not indicate that juror forty-four was in the minority vote. We also disagree with the defendant's contention that the new jury did not begin deliberations anew because they reached a verdict after approximately an hour and a half of deliberations. The original jury had deliberated for a shorter amount of time on day two before almost reaching a verdict. There is no evidence to suggest that juror forty-four was in the minority vote or that the alternate juror might have felt " 'a substantial coercive effect' when joining [the] other jurors who already have agreed upon the guilt or innocence of the accused." Garcia, supra at 767, quoting from Commonwealth v. Olavarria, 71 Mass. App. Ct. 612, 619-620 (2008).

2. Evidence of the defendant's prior bad acts. The defendant argues that the admittance of prior bad acts evidence, i.e., Ashleigh's testimony that the defendant told her he "got [ ] some guns" and Dorothy's testimony that the defendant threatened Berry by pointing a shotgun at him, was an abuse of discretion. The defendant maintains that such evidence prejudicially portrayed him as a violent man who routinely threatened others with guns, "permitt[ing] the jury to consider his ownership not of the recovered firearms and ammunition, but of unrelated firearms." We disagree.

"Evidence of prior bad acts is not admissible to show a defendant's bad character or propensity to commit the charged crime, but may be admissible if relevant for other purposes such as common scheme, pattern of operation, identity, intent, or motive." Commonwealth v. Oberle, 476 Mass. 539, 550 (2017). The judge must determine whether the probative value of the evidence outweighs any undue prejudice to the defendant. See ibid. In doing so, the judge must look at the connection between the evidence and the facts of the case as well as whether the evidence is too remote in time. See Commonwealth v. Keown, 478 Mass. 232, 244 (2017), cert. denied, 138 S. Ct. 1038 (2018). Here, the Commonwealth sought to introduce Dorothy's testimony that she observed the defendant point a shotgun at Berry and then place the shotgun under the mattress in the defendant's bedroom. The judge found, and we agree, that Dorothy's statements were "clearly relevant as a shotgun is one of the guns that the defendant is charged with having possessed illegally, and the shotgun was found in the defendant's bedroom." "[S]uch evidence was 'relevant as a link in tending to prove that the defendant committed' the crimes charged." Commonwealth v. McGee, 467 Mass. 141, 156-157 (2014), quoting from Commonwealth v. Perez, 460 Mass. 683, 695 (2011).

As for Ashleigh's testimony regarding the defendant's statement that he "got [ ] some guns," the judge found, and we again agree, that the testimony was admissible as a party admission. See Commonwealth v. Crayton, 470 Mass. 228, 246 n.22 (2014) ; Mass. G. Evid. § 801(d)(2)(A) (2018). Furthermore, the judge provided the jury with a limiting instruction regarding Dorothy's and Ashleigh's testimony.

3. Prosecutor's closing argument. The defendant argues that the prosecutor's closing argument contained facts not in evidence as an effort to bolster the charge for constructive possession, and that such statements warrant a reversal. The defendant did not object to the prosecutor's closing argument at trial, thus, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. Loguidice, 420 Mass. 453, 455-456 (1995). We look at the challenged statements in light of the entire argument, the judge's instructions to the jury, and the strength of the evidence presented at trial. See Commonwealth v. Hrabak, 440 Mass. 650, 654 (2004). "[C]ounsel may argue the evidence and the fair inferences which can be drawn from the evidence," Commonwealth v. Hoffer, 375 Mass. 369, 378 (1978), however, "[c]ounsel may not refer to or suggest their knowledge of matters not in evidence," Commonwealth v. Hoppin, 387 Mass. 25, 30 (1982). Rather, counsel is allowed to try and "fit all the pieces of evidence together so that they form a comprehensive and comprehensible picture for the jury." Commonwealth v. Ferreira, 381 Mass. 306, 316 (1980) (quotation omitted).

Here, the prosecutor stated that items, including clothes and shoes, shown in a photograph of the closet where the weapon was discovered "appears to be male shoes" and "male clothing." The prosecutor also stated that Dorothy "live[d] in fear of th[e] defendant and those guns." The defendant challenges those statements and how, in the defendant's view, the prosecutor "harp[ed] on the fact that [the defendant] threatened to shoot or harm Ashleigh or her kids." Such statements do not rise to the level of a substantial risk of a miscarriage of justice. The statements, if not referencing direct testimony of a witness, were permissible inferences drawn from witness testimony and other evidence. Furthermore, the judge provided a limiting jury instruction; we presume "[a] certain measure of jury sophistication," Commonwealth v. Kozec, 399 Mass. 514, 517 (1987), and that the jury will abide by the judge's instructions, see Commonwealth v. Pope, 406 Mass. 581, 588 (1990).

4. Motion for required findings of not guilty. We consider the evidence, together with permissible inferences from that evidence, in the light most favorable to the Commonwealth, to "determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Cordle, 412 Mass. 172, 175 (1992). See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). "Constructive possession requires proof of knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002, 1004 (2015) (quotation omitted). "This proof 'may be established by circumstantial evidence, and the inferences that can be drawn therefrom.' " Ibid., quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). Because the defendant had access to the bedroom, which was known as his, "it reasonably can be inferred that [he] had the 'ability' to exercise control over items located there." Ibid. It is also clear from Dorothy's and Ashleigh's testimony that the defendant had "knowledge" of the firearms and the "intention" to exercise control over them. Both Dorothy and Ashleigh testified that they observed the defendant in possession of the shotgun and that the defendant threatened to shoot Ashleigh and her children; Dorothy testified that she observed the defendant place the shotgun underneath the mattress in the bedroom, and that after Dorothy hid the handgun in a hole in the wall of the apartment, the defendant returned and asked "Where's my gun?" Reviewed under the Latimore standard, the evidence was sufficient to show that the defendant constructively possessed the firearms.

Judgments affirmed.

      Dorothy is Trisha's mother. Dorothy, Trisha, Ashleigh, and Tabitha will be referred to by their first names since they share a surname.

      Ashleigh also testified that the defendant made this statement and that the defendant motioned a "gun signal" at her.

      The defendant's driver's license listed 25 Rawson Drive, Leicester, Massachusetts as his address.

      The first note asked, "If we don't come to an agreement 12-0, by default do we, must we rule 'not guilty', or do we return a verdict of 'no vote'?" The second note asked, "If we cannot get 12-0, must we vote 'not guilty'? What is the problem if we vote for 6 before 2?"

      The judge instructed the jury, and both parties agreed, that any verdict on each of the indictments must be unanimous and the indictments may be decided in any order.

      The judge informed the jury that juror number forty-four was discharged for personal and private reasons unrelated to the case or deliberations. An alternative juror was selected and the jury were instructed to "begin [their] deliberations fresh with the new juror."

      General Laws c. 234, § 26B, was repealed by St. 2016, c. 36, § 1, effective May 10, 2016. The defendant's jury trial was held before the statute was repealed.


text:
    COMMONWEALTH v. Jose ROSARIO.
    17-P-65
    Appeals Court of Massachusetts.
    Entered: July 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Jose Rosario, appeals from his convictions by a Superior Court jury of child rape, G. L. c. 265, § 23 ; indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B ; disseminating matter harmful to a minor, G. L. c. 272, § 28 ; and witness intimidation, G. L. c. 268, § 13B. We affirm.

1. Background. The defendant was the boy friend of the victim's mother. Their romantic relationship began in 2011, when the victim lived with her mother and two siblings in Brockton. At that time, the victim was six years old, her sister was eight years old, and her brother was four years old. The defendant did not live with the family but often stayed with them for one or two weeks at a time in the three different apartments they lived in from 2011 through 2015.

At the family's first apartment, the defendant touched the victim's genitals and made her touch his penis on multiple occasions. He also told the victim not to tell her mother or "anyone" or she would get in trouble. At their second apartment, the defendant similarly touched the victim and also digitally penetrated her. At the third apartment, he made her watch a video of "naked people in a tattoo shop" "kissing each other's privates," and then forced her to touch his penis under a blanket -- hurting her arm until she did so. He also made her look at pornographic material and made her upload pornography onto her iPod. At one point, the defendant pulled down his pants and exposed his penis to her.

In December of 2014, the defendant and the victim's mother ended their romantic relationship, but the defendant continued to spend time at the family's apartment. On April 24, 2015, the victim's mother saw pornographic images on the victim's iPod. She asked the victim where the pictures came from, and the victim said the defendant made her put them there. Her mother called the police, and the defendant was arrested.

The defendant's trial in the Superior Court turned on the credibility of the victim, who was eleven years old at the time. The jury returned verdicts against the defendant on one count of child rape, five counts of indecent assault and battery on a child under fourteen, one count of disseminating matter harmful to a minor, and one count of witness intimidation. This appeal followed.

2. Child witness instruction. Whether "the jury should receive a special instruction with respect to the credibility of a young witness" is within the discretion of the trial judge. Commonwealth v. Krepon, 32 Mass. App. Ct. 945, 947-948 (1992), quoting from Commonwealth v. Avery, 14 Mass. App. Ct. 137, 141 (1982). Here, a special instruction was not necessary because "the judge's general instructions regarding the jury's role in weighing credibility of the witnesses fairly alerted the jury to the appropriate factors to consider." Id. at 948, citing Commonwealth v. A Juvenile, 21 Mass. App. Ct. 121, 124 (1985).

The judge instructed the jury, "You and you alone are the sole judges of the credibility or believability of each witness," and advised the jury to consider several relevant factors -- including their common sense -- in making that determination. See Commonwealth v. Figueroa, 413 Mass. 193, 197 (1992) (properly instructing jury they were "sole assessors of credibility" and to consider other relevant factors in weighing testimony of all witnesses). Accord Avery, 14 Mass. App. Ct. at 144 ("charge placed adequate emphasis on the objective factors by which the jury should determine the veracity of witnesses in general"). We presume the jury recognized that the victim was an eleven year old girl and assessed her testimony accordingly and as instructed by the judge. See Krepon, 32 Mass. App. Ct. at 948. See also Avery, supra (jury were "aware that their principal task was to determine the credibility of the victim's testimony"). Defense counsel extensively explored inconsistencies in the victim's testimony on cross-examination and made them apparent to the jury in closing argument. See Krepon, supra at 947 ("[I]nconsistencies in the victim's testimony were brought out by defense counsel on cross-examination and must have been apparent to the jury"). Accord A Juvenile, 21 Mass. App. Ct. at 125 (because "witness credibility was highlighted and vigorously explored throughout the trial," no special instruction on child witness was necessary). The judge, in short, acted within his discretion in denying the instruction requested by the defendant. See Commonwealth v. Perkins, 39 Mass. App. Ct. 577, 580 (1995) (judge's "refusal to include the specific language requested by the defendant did not amount to an abuse of discretion").

3. Witness intimidation. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Rosario, 83 Mass. App. Ct. 640, 642 (2013), "the evidence and reasonable inferences drawn therefrom were sufficient to establish that the defendant acted ... with the requisite intent for witness intimidation" under G. L. c. 268, § 13B. See id. at 643. The victim testified that, after the defendant made her touch his penis, he told her to "not tell my mom or anyone 'cause then my mom would ground me for a year and take all my toys away." The victim further stated she did not report the abuse to any adult because "then they would probably tell my mom and then I can get in big trouble." Given the obvious consequences the defendant faced if discovered, the jury were well justified in inferring that the defendant's instruction to the victim to not report the abuse to "anyone" was motivated by a desire to avoid criminal investigation. See ibid. (intent may be proved from circumstances). Accord Commonwealth v. Carvalho, 88 Mass. App. Ct. 840, 846 (2016), quoting from Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 613 (2007) ("the jury may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances").

It is of no import that the defendant told the victim not to tell her mother or "anyone," and did not specify the police or other law enforcement. The statute "does not require that a defendant specifically articulate a threat not to speak to the police or other criminal investigator." Commonwealth v. King, 69 Mass. App. Ct. 113, 120 (2007). Nonetheless, the threat had that effect; the victim said she did not tell her mother because "then my mom would call the police." Even as a child the victim understood disclosure to her mother would result in police intervention. The jury could infer the defendant knew the same and intended his threats to prevent a criminal investigation from being initiated. See id. at 121 ("A criminal investigation need not have commenced"). Cf. Rosario, 83 Mass. App. Ct. at 644 (jury could infer defendant expected victim to testify in prospective court proceedings). The evidence was sufficient, and the defendant's motion for a required finding of not guilty was properly denied.

4. Closing argument. In closing argument, the prosecutor erred by suggesting that the victim should be believed simply because she came and testified. See Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 234 (2013), citing Commonwealth v. Ramos, 73 Mass. App. Ct. 824, 826 (2009). There was no objection and, "considering the remarks in the context of the entire argument, the trial testimony, and the judge's instructions to the jury," Commonwealth v. Beaudry, 445 Mass. 577, 584 (2005), the error did not create "a substantial risk of a miscarriage of justice." See Olmande, supra at 235.

Although the victim's credibility was the heart of the case, the prosecutor's single improper remark was a brief portion of a closing argument that was otherwise properly based on the evidence. Accordingly, the error was unlikely to materially influence the jury. Cf. Beaudry, 445 Mass. at 588 (statement was meaningless "particularly when measured against the standard of a substantial risk of a miscarriage of justice"). The lack of prejudice is especially apparent given that it went unnoticed and unobjected to by defense counsel. See Commonwealth v. Correia, 65 Mass. App. Ct. 27, 36 n.7 (2005). Furthermore, the judge reminded the jury that the attorneys' opening and closing arguments were not evidence and repeatedly instructed that they alone could determine the credibility of the victim. We presume the jury followed those instructions. See Olmande, 84 Mass. App. Ct. at 237. In light of the foregoing, no substantial risk of a miscarriage of justice resulted from the prosecutor's improper remark.

Judgments affirmed.


text:
    COMMONWEALTH v. Andrew ROBERTSON.
    17-P-526
    Appeals Court of Massachusetts.
    Entered: July 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   This is an interlocutory appeal from an order denying a motion to suppress that included a request for a hearing under Franks v. Delaware, 438 U.S. 154 (1978) (Franks ). Leave for this appeal was allowed by a single justice of the Supreme Judicial Court.

In this appeal, the defendant argues only that he was entitled to a hearing under Franks, and does not argue, as he did in the lower court, that the warrant that issued in this case was unsupported by probable cause. The Commonwealth argues that the defendant's sole contention regarding the Franks hearing is an impermissible basis for an interlocutory appeal. However, the refusal to allow a Franks hearing was raised in the defendant's petition before the single justice who allowed this appeal. This, therefore, is not the correct forum in which to raise that complaint and, in light of the order of the single justice, we turn to the merits of the appeal.

In order to obtain a hearing under Franks, there must be a "substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit" and that "the allegedly false statement is necessary to the finding of probable cause." Id. at 155-156. See Commonwealth v. Bennett, 39 Mass. App. Ct. 531, 534 (1995) (misleading statements that satisfy these conditions give defendants the right to a Franks hearing).

The defendant argues in essence that witnesses' statements included in the warrant affidavit concerning whether the defendant walked down a particular driveway of the building at 1863 River Street (across the street from his address) were ambiguous. But the defendant raises no argument that the statements were not actually made by the two witnesses nor that the statements were reported inaccurately in the affidavit. The defendant's argument that the police should have informed the court that, perhaps, the first witness was referring to a paved footpath to the left of 1863 River Street or to the driveway of an adjacent house, does not amount to a showing that the affidavit was written in a way that was knowingly or recklessly misleading. Rather, the affidavit summarizes the officer's knowledge, including the statements of the two witnesses. The second witness, in particular, simply said that the defendant had gone down the driveway of 1863 River Street. An officer, as described in the affidavit, then walked down the driveway of 1863 River Street where the officer discovered a droplet of blood, corroborating the suggestion that the heavily bleeding defendant had recently been there. The defendant does not argue that the police were not entitled to walk down the driveway. The police then further observed two bags that contained what they believed to be marijuana, one on the pavement of the driveway and the other on a snowbank on the side of the driveway.

The affidavit referred to these bags as a "clear heat sealed plastic bag" and a "Ziploc plastic bag," but the defendant argues that neither of the two bags found by police were "Ziploc brand plastic bags." The defendant argues that the distinction between identifying the bags as "Ziploc brand bags" or referring to any "zip-top clear plastic bag" as a "Ziploc" regardless of the manufacturer is crucial given that "Ziploc plastic bags" and a "Vacuum Sealer" for Ziploc bags (or perhaps zip-top bags) were found in the defendant's apartment. Even if the two zip-top bags found by the officer were of a different brand than the Ziploc bags found in the defendant's apartment, simply calling them ziploc bags generically makes only minimal difference to their relevance on all the facts and circumstances, and is not sufficient evidence of intentional or reckless misstatement.

Finally, the defendant asserts that the photograph he obtained from the district attorney's office does not show a marking of "1/2" on the bag found on the pavement of the driveway as described by the affidavit. The defendant does not argue that that bag did not or could not have had such a marking on it and, consequently, we do not think that this equates to the substantial preliminary showing of an intentional or reckless falsehood required for a hearing under Franks. And, as described at the outset, the defendant does not allege that there was no probable cause for the warrant to issue.

Order denying motion to suppress affirmed.


text:
    John DOE, Sex Offender Registry Board No. 523281 v. SEX OFFENDER REGISTRY BOARD.
    17-P-1143
    Appeals Court of Massachusetts.
    Entered: July 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a hearing before a hearing examiner of the Sex Offender Registry Board (SORB), Doe was classified as a level three sex offender. He appealed this classification to a judge of the Superior Court and moved for judgment on the pleadings. The judge denied Doe's motion and affirmed SORB's decision. Doe appeals, claiming that the hearing examiner abused his discretion by considering an unsubstantiated Department of Children and Families (DCF) report compiled five years earlier as newly discovered evidence. He also claims that SORB's decision to classify Doe as a level three sex offender was not supported by substantial evidence. We affirm.

1. Newly discovered evidence. First, Doe claims that the hearing examiner erred in allowing SORB to reopen the record after the classification hearing in order to submit newly discovered evidence: a 2010 DCF report containing information related to an incident in which Doe sexually assaulted another victim in a similar manner as the 2014 assault to which Doe pleaded guilty. We disagree. Because Doe failed to raise the argument that the 2010 report does not constitute newly discovered evidence before both the hearing examiner and the Superior Court judge, it is waived.

In his complaint for judicial review, Doe requested that the judge set aside SORB's decision on a variety of bases, not one of which claimed the DCF report was not new evidence. Instead, in his memorandum of law in support of his motion for judgment on the pleadings, Doe asserted that the report should not have been considered because DCF found that it was unsubstantiated, not because it did not constitute new evidence. The judge denied Doe's motion. In particular, the judge concluded that "the Examiner's reliance on Victim 1's allegation [contained in the 2010 report] is supported by substantial evidence, and was within the Examiner's discretion." The judge therefore had no opportunity to rule on the issue Doe brings before us. As such, we do not consider it. Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989).

2. Substantial evidence. Doe next argues that SORB's classification was not supported by substantial evidence because, if the earlier DCF report is struck and Doe can no longer be characterized as exhibiting "repetitive and compulsive behavior," then his conduct demonstrating rehabilitation sufficiently mitigates the remaining factors. We conclude that substantial evidence supported the classification.

It is well settled that "[a] hearing examiner 'need not observe the rules of evidence observed by courts' at a classification hearing." Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015), quoting from G. L. c. 30A, § 11(2), inserted by St. 1954, § 681, § 1. "He may admit and give probative effect to that evidence [upon] 'which reasonable persons are accustomed to rely in the conduct of serious affairs.' " Ibid. So long as the hearing examiner assessed the reliability of the exhibits and, in the case of hearsay or multilevel hearsay statements, the circumstances under which the statements were made, such exhibits may form the basis of SORB's classification. Id. at 76-77. These may include disciplinary reports of a prisoner, police reports of acquitted conduct, see id. at 77-80, and, as here, reports compiled by DCF in response to an allegation it later deemed unsupported.

DCF found the 2010 allegations unsupported. The hearing examiner, however, found that Doe did sexually assault the 2010 victim because (1) the victim's statements "to her mother and the DCF worker were detailed and credible"; (2) the victim provided details that explained "where the sexual acts took place and where [Doe's] wife was at the times of the assaults," and also recalled statements Doe made during the assaults; and (3) the 2010 and 2014 allegations "follow a very similar pattern," making the 2010 allegations "more credible and further bolstered by" the 2014 crimes. The hearing examiner's findings demonstrate that he properly assessed the reliability of the DCF report, considering the statements and level of detail provided in the 2010 allegations. It was not error for the hearing examiner to consider the 2010 report.

Furthermore, the 2010 report justified the examiner's application of the aggravating factor "repetitive and compulsive behavior." In support of the examiner applying full weight to this factor, he considered the multiple incidents described in the 2010 allegation as well as the 2014 offense. Although the examiner found several risk mitigating factors applied, it was within his discretion to determine that the aggravating factors, on the whole, outweighed the mitigating factors sufficient to justify classifying Doe as a level three sex offender. See Doe, Sex Offender Registry Bd. No. 291554 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 210, 212 (2015) (hearing examiner has discretion to consider which regulatory factors apply and how much weight to give each factor). Therefore, the examiner's decision was supported by substantial evidence in the record and, accordingly, we find no error in the judgment.

Judgment affirmed.

      The three grounds on which Doe challenged the examiner's decision were (1) that the hearing examiner's conclusions regarding his classification level were unsupported by substantial evidence; (2) that SORB committed errors of law, abused its discretion, and/or acted in an arbitrary and capricious manner in classifying Doe -- specifically, by accepting a report of an unsubstantiated allegation; and (3) that SORB's decision violated his State and Federal constitutional rights.

      Doe directs our attention, through a letter sent after oral argument pursuant to Mass.R.A.P. 16(l), as amended, 386 Mass. 1247 (1982), to a recent Supreme Judicial Court case dealing with waiver in sexual dangerousness proceedings. See R.B., petitioner, 479 Mass. 712 (2018). This new authority does not apply to the case before us because there is a fundamental difference between a quasi-criminal hearing to determine sexual dangerousness, which can potentially result in a one day to life commitment, and a civil administrative hearing to classify a previously convicted sex offender. See Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 646 (2012) (proceedings related to classification and registration under sex offender registry law are not criminal in nature). We therefore need not apply "the same standard governing [unpreserved issues in] criminal cases: review for a substantial risk of a miscarriage of justice" as would be appropriate in an appeal from a determination of sexual dangerousness. R.B., petitioner, supra at 717-718.

      We have considered the remainder of Doe's claims and find nothing that warrants further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).