text:
    COMMONWEALTH v. Brandon WANGNOON.
    17-P-36
    Appeals Court of Massachusetts.
    Entered: February 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The Commonwealth appeals from a Superior Court judge's orders suppressing certain statements and cellular telephone (cell phone or phone) data gained from the defendant during the course of a murder investigation. For the reasons set forth below, we affirm those orders.

Background. The defendant, Brandon Wangnoon, stands indicted for the October 9, 2014, murder of Daniel Esdale, and for subsequently misleading the police during the ensuing investigation. He filed two motions to suppress evidence: one seeking the suppression of statements he made to police during interviews conducted on October 13, 2014, and October 20, 2014, and another seeking to suppress evidence from a search of his cell phone, which the police obtained during the October 13 interview.

The judge held an evidentiary hearing on the motions. Three witnesses testified, including Sergeant Robert Kilnapp of the State police. The judge also received video recordings of the defendant's police interviews. We summarize the facts found by the judge, supplemented by undisputed evidence introduced at the evidentiary motion hearing.

On October 12, 2014, two friends of the victim reported to police that they found his body in his third-floor apartment. The victim had been shot to death, and police determined, from a voice mail message left by the victim, that the shooting occurred around 4:50 P.M . on October 9, 2014. Police interviewed Antonio Pinto, who lived below the victim in a second-floor apartment in the victim's building. Pinto told them that he was with the defendant, his cousin, at the defendant's house at the time of the shooting.

Seeking to corroborate Pinto's statement, on October 13, 2014, the police asked the defendant to come to the Brockton police station for an interview. The defendant agreed, and at the station, Sergeant Kilnapp and Trooper Kevin McDermott interviewed him. The defendant told the police that on the day in question, he arrived at Pinto's apartment at about 2:40 P.M. and left within minutes to go to the defendant's house. He said that he met Pinto in the building but outside his apartment, and that he did not see anyone else. The defendant said that they arrived at the defendant's house at about 3:00 or 3:30 P.M. and that Pinto stayed for a couple of hours.

The police questioned the defendant about cell phone calls made on the day of the murder, and asked to see his call history. The defendant freely turned on his phone, located the call history, and several times showed it to Sergeant Kilnapp, and even allowed him to scroll through it himself. He also disclosed that he deleted the history of his calls with Pinto. Sergeant Kilnapp then asked the defendant to consent to a download of his phone data. The defendant said, "No." He added that he did not think that the police needed to download data from his phone. Sergeant Kilnapp said, "I think we do." He then asked the defendant again to consent to the data download. The defendant again answered, "No." Sergeant Kilnapp responded that they might have to seize the phone as "potential evidence" in a homicide, and asked the defendant for the phone passcode. The defendant asked if they wanted the passcode so police would not have to "break through it." Trooper McDermott answered, "That's pretty much what's going to happen." Sergeant Kilnapp assured the defendant that if he signed a consent form allowing the police to search the phone data, "they would give the phone right back to him," but if he refused, the police would "seize" it and "hold it as evidence." The defendant agreed to sign the consent form and disclosed the passcode. Sergeant Kilnapp told the defendant that after they downloaded the phone data they would telephone the defendant's mother to let him know he could come back to the station to get his phone. The defendant then signed the form, and handed his phone to the police, who allowed him to leave. Contrary to their assurances, the police never returned the phone.

On October 20, 2014, a State trooper and a Brockton police detective arrived at the defendant's home and asked him to come to the station for another interview. After speaking with his father, the defendant reluctantly agreed. The police asked the defendant to go over again the chronology of where he and Pinto were during the shooting. The defendant's responses were consistent with his first interview. At one point, the trooper informed the defendant that one of his text messages showed he was still in the victim's apartment building at the time of the shooting. The trooper pointed out that this was inconsistent with the defendant's story. The defendant then admitted he was in the victim's apartment building at the time of the shooting. He also admitted that he and Pinto were in the victim's third-floor apartment for about two hours that afternoon, but left to go to Pinto's second-floor apartment when the victim said he was going to the gym. From Pinto's apartment, they heard a disturbance from the building's entrance and heard multiple people running up the stairs. The defendant admitted they then heard yelling, and three or four gunshots, followed by the sound of people running down the stairs.

The judge concluded that the police wrongfully seized the defendant's cell phone. With the exception of the call history not deleted at the time police took the phone (which the defendant freely showed police), the judge suppressed all information obtained from it, including text messages and deleted call history. The judge also allowed, in part, the defendant's motion to suppress statements he made during the October 20 interview, suppressing all statements he made after the trooper confronted him with his text message placing him in the victim's building at the time of the shooting. The judge did not suppress any statements made during the October 13 interview. A single justice of the Supreme Judicial Court granted the Commonwealth's application for an interlocutory appeal, and the case was docketed in this court.

Discussion. The Commonwealth contends that the judge erred in suppressing the defendant's statements and the data recovered from his cell phone because the defendant consented to the search of his phone. Alternatively, the Commonwealth submits that even absent the defendant's consent, the police had probable cause to seize the phone as potential evidence in their investigation. We conclude that both arguments are unavailing.

Generally, the police are required to obtain a warrant before searching a person's cellular telephone. Riley v. California, 134 S. Ct. 2473, 2493 (2014) ("a warrant is generally required before [a search of a cell phone]"). See Commonwealth v. Sheridan, 470 Mass. 752, 763 (2015). The Commonwealth argues that a warrant was unnecessary because the defendant consented to the search of his phone. To justify a warrantless search based on consent, the Commonwealth must prove that the defendant voluntarily consented to the search. Commonwealth v. Aguiar, 370 Mass. 490, 496 (1976), and cases cited. Such consent must be given "freely and voluntarily." Commonwealth v. Krisco Corp., 421 Mass. 37, 46 (1995). Consent is given freely and voluntarily when it is "unfettered by coercion, express or implied, and also something more than mere acquiescence to a claim of lawful authority." Commonwealth v. Sanna, 424 Mass. 92, 97 (1997) (quotations omitted). See Bumper v. North Carolina, 391 U.S. 543, 548-549 (1968). "The voluntariness of an individual's consent ... must be examined in light of the totality of the circumstances of the case." Commonwealth v. Rogers, 444 Mass. 234, 238 (2005). See Commonwealth v. Harmond, 376 Mass. 557, 561 (1978) (voluntariness of consent is question of fact to be determined in circumstances of each case).

Here, while the defendant clearly consented to Sergeant Kilnapp's request to view his call history, he just as clearly refused to consent to a search of his phone data, including data he deleted from his call history. Sergeant Kilnapp twice asked the defendant for permission to download his phone data and the defendant twice refused. The defendant only agreed to sign the consent form to search his phone, and to disclose the password, after the police told him that if he did not they would seize the phone as evidence and "break through it." At that point, the police presented defendant with more of a dilemma than a free choice: either consent to the data download from his phone, and get it right back, or have the police seize it and hold it as evidence.

We agree with the judge's conclusion that "[t]he choice provided to the defendant was not between allowing the search or preventing the search." The police told the defendant they would extract his phone data whether he consented or not. Thus, the defendant's purported consent was not "unfettered by coercion, express or implied"; instead, it was no more than "acquiescence to a claim of lawful authority." Commonwealth v. Sanna, supra (quotations omitted). See Commonwealth v. Harmond, supra.

The Commonwealth argues that the defendant's consent was valid because the police's characterization of his options was accurate, in that Sergeant Kilnapp merely explained to the defendant the reality of the situation: if he did not consent, the police would seize his phone and apply for a search warrant. However, this argument is flawed because at the time, the police lacked probable cause to seize the phone.

"Before police may search or seize any item as evidence, they must have 'a substantial basis for concluding that' the item searched or seized contains 'evidence connected to the crime' under investigation." Commonwealth v. White, 475 Mass. 583, 588 (2016), quoting from Commonwealth v. Escalera, 462 Mass. 636, 642 (2012). In other words, the Commonwealth must demonstrate "a nexus between the crime alleged and the article to be searched or seized." Commonwealth v. Matias, 440 Mass. 787, 794 (2004) (quotation omitted). While police "need not make a showing beyond a reasonable doubt, ... strong reason to suspect is not adequate." Commonwealth v. Knapp, 453 Mass. 102, 111 (2009) (quotation omitted). Only when police have information that establishes the existence of some "particularized evidence" related to the crime being investigated, that they believe is likely to be found on the device in question, will probable cause be supported. Commonwealth v. Dorelas, 473 Mass. 496, 498, 502 (2016).

The police did not have probable cause to believe that the defendant's phone contained evidence relating to the victim's death. At the time of the October 13 interview, the police considered the defendant's role in the investigation to be that of a witness. They had no cause to believe that the defendant was a suspect, or that he played a part in the victim's death. The police knew only that the phone contained deleted call history that would show that the defendant communicated with Pinto because the defendant told them so. While police may have suspected that the defendant knew more than he was saying, this, without more, does not satisfy the nexus requirement. Thus, because the police lacked probable cause to support their statement to the defendant that they could seize the phone as evidence, his consent was not free and voluntary, and cannot justify the search. Therefore, we agree with the judge's conclusion that the evidence obtained following the seizure of the defendant's phone, including inculpatory statements made by the defendant after being confronted with the text message placing him near the scene at the time of the murder, must be suppressed as "fruit of the poisonous tree." Commonwealth v. Jacobson, 419 Mass. 269, 275 n.7 (1995), quoting from Wong Sun v. United States, 371 U.S. 471, 488 (1963). The judge's orders are affirmed.

So ordered.

Affirmed in part.

      We adopt the spelling of Kilnapp's name as he spelled it during the hearing on the motions to suppress.

      After obtaining the phone, the police did not seek a warrant to search its contents.

      Furthermore, even where there is probable cause to suspect a person of a crime, police may not seize or search that person's cell phone to look for evidence "unless they have information establishing the existence of particularized evidence to be found there." Commonwealth v. White, supra at 590-591.

      The Commonwealth's insistence that it was not given notice that probable cause was to be an issue at the evidentiary hearing and that the judge prevented it from arguing the issue is not persuasive. The defendant's motion to suppress clearly stated that "[t]he initial seizure of the cell phone without a warrant was per se unreasonable and cannot be justified by any narrowly tailored exception to the warrant requirement, namely consent." The motion was sufficient to put the Commonwealth on notice to meet its burden of showing that the warrantless seizure was proper under any relevant legal theory. Furthermore, the Commonwealth's assertion that it possessed additional evidence supporting a finding of probable cause is belied by the record. At the hearing, Sergeant Kilnapp testified unequivocally that, at the time of the October 13 interview, the defendant was not a suspect, the police had no information that the defendant was involved in the shooting, and that the sole reason for that interview was to gain information about his interactions with Pinto. Thus, the judge properly denied the Commonwealth's motion to reconsider. See Commonwealth v. Pagan, 73 Mass. App. Ct. 369, 375 (2008) (suppression hearings not "a dress rehearsal" requiring "do-overs" when adverse ruling results).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Francisco RIVERA-YORRO.
    15-P-1606
    Appeals Court of Massachusetts.
    Entered: February 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In this consolidated appeal, the defendant appeals from (1) his convictions for dissemination of obscene matter, G. L. c. 272, § 29, and possession of visual material of a child depicted in sexual conduct, G. L. c. 272, § 29C (child pornography); (2) the denial of his motion for a new trial; and (3) the denial of his motion for reconsideration. The defendant raises three arguments on appeal. First, he argues that the trial judge abused her discretion when she allowed the Commonwealth to introduce certain portions (totaling approximately two minutes) of three videotapes (video clips) and eight still photographs (photos), taken from the video clips, of child pornography on the ground that the material was substantially more prejudicial than probative. Next, the defendant argues that the prosecutor improperly appealed to the jury's emotions and stated facts not in evidence during closing argument. Finally, the defendant argues that the trial judge should not have denied his motion for new trial without having made findings on the attached affidavits. We affirm.

We summarize the trial evidence as follows. In June, 2010, while searching through a peer-to-peer file-sharing program, Sergeant Michael Hill of the Massachusetts State police found several child pornography files being made available at a particular Internet protocol address (IPA). By way of subpoena, Hill learned that that IPA was issued to the defendant at his home address in Dorchester. Using screen capture software, Hill recorded his investigation and relayed this information to Boston police, who executed a search warrant at the defendant's home. During that search, a backpack containing two dildos, a prescription bottle of Viagra in the defendant's name, and seven compact discs was found in a corner of the defendant's bedroom closet. Three of those discs, each bearing the defendant's handwritten initials, contained child pornography involving girls between the ages of six and twelve. When told that the police were searching the home for child pornography, the defendant, who had waived his Miranda rights, stated that he did not think they would find any but that, if they did, he would take responsibility for it so his family would not get in trouble. The defendant admitted that the police might find pornography involving teens as young as fifteen. He also admitted using file-sharing programs. The defendant's seventeen year old son admitted to watching pornography involving girls his own age, some as young as fifteen, but denied watching pornography involving young children. The computer in the living room of the house and in the son's bedroom both contained electronic evidence of child pornography.

The defendant argues that the judge abused her discretion when she admitted the video clips and photos because the materials were substantially more prejudicial than probative, especially since he stipulated to the limited fact that the materials satisfied the definition of child pornography. The defendant's willingness to enter into a limited stipulation regarding the materials did not render them any less relevant, nor was the prosecution or the judge required to accept the defendant's stipulation. See Old Chief v. United States, 519 U.S. 172, 186 (1997) ("[T]he prosecution is entitled to prove its case by evidence of its own choice"); Commonwealth v. Lyons, 444 Mass. 289, 298 (2005) (a judge retains her discretion to admit or exclude evidence "even where the defendant agrees to stipulate to the facts that the photograph tends to prove"). "The defendant's willingness to stipulate to a fact does not preclude the Commonwealth from proving it." Commonwealth v. Sleeper, 435 Mass. 581, 599 (2002) (quotation omitted).

Nor can it be seriously disputed that the materials had substantial probative value. They bore directly on the Commonwealth's obligation to prove that the materials were obscene and that the defendant knew they were so. See G. L. c. 272, § 29. In this case, the materials also were relevant to refute the defense that it was the son, rather than the defendant, who had possessed and disseminated them. Indeed, this was the central issue of the case, and the very young age of the children shown in the videos bore directly on it because of the son's statement regarding the age of the girls in the videos he admitted watching. In short, the materials were highly probative.

Relevant evidence will only be excluded if "its probative value is substantially outweighed by a danger of ... unfair prejudice." Mass. G. Evid. § 403 (2017). Evidence does not result in unfair prejudice simply because it may have an emotional impact on the jury. See Commonwealth v. Berry, 420 Mass. 95, 108 (1995) (photographs with evidential value "are not rendered inadmissible solely because they are gruesome or may have an inflammatory effect on the jury" [quotation omitted] ). Instead, "[e]vidence is unfairly prejudicial only if it has 'an undue tendency to suggest decision on an improper basis.' " Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 188 (2013), quoting from Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980). As we noted above, the central question at trial was who possessed the materials-not whether they satisfied the statutory definition of prohibited materials. We fail to see (and the defendant has not explained) how any emotional impact from the video clips or the photos would have made the jury more likely to conclude that the materials belonged to the defendant rather than his son.

Further, this is not a case where the judge failed to review the evidence prior to its admission, or did not engage in a careful balancing of probative value versus unfair prejudice. Cf. United States v. Cunningham, 694 F.3d 372, 390 (3d Cir. 2012). In a multi-stage process, including an in camera review, the judge further narrowed the materials down from the Commonwealth's original proposal to three video clips (totaling approximately two minutes) and eight photos. At the defendant's request, the judge further excluded the final ten seconds of one of the video clips as gratuitous. We find no abuse of discretion in this calculated decision.

The defendant also argues that one of the admitted video clips, the "Vicky" clip, should have been excluded because it, unlike the others, had a musical soundtrack that made it especially prejudicial. Whatever else might be said about this argument, the members of this panel-all of whom have reviewed the video clips-agree that in the context of a video showing a young girl being sexually assaulted while dressed and posed in a type of ritualistic bondage, the soundtrack had no incremental impact whatsoever.

Next, the defendant argues that two statements made by the Commonwealth in its closing argument, that "[t]his is the story of young girls, and they're all girls that you saw, their story is his story" and that the defendant was "compulsively feeding a need," were improper. Considering "the remarks in the context of the entire argument, in light of the judge's instruction to the jury and the evidence at trial," Commonwealth v. Jones, 432 Mass. 623, 629 (2000), we discern no error. The Commonwealth's statement regarding the "story" was woven into the Commonwealth's overarching argument that the case was about whose story-the Commonwealth's or the defendant's-was consistent with the evidence. The Commonwealth's statement regarding the defendant "feeding a need" was supported by the evidence at trial that showed the child pornography was found among other objects used for sexual gratification.

Finally, the defendant argues it was error for the judge to deny his motion for new trial without making findings on the affidavits attached to his motion. We disagree. The judge was not required to make findings as to the statements contained in those affidavits. There was no error.

Judgments affirmed.

Order denying motion for new trial affirmed.

Order denying motion for reconsideration affirmed.

      The members of the panel have viewed the video clips and the photos at issue.

      The materials had been transferred onto the discs on February 11, February 29, and March 5, 2010. On one of these dates, February 11, 2010, the defendant's daughter, whom he suggested might have planted the discs, was in school.

      The defendant also claims that the judge could not properly assess the prejudice of this video clip because the judge never heard the audio during her in camera review. The record does not support this argument. Trial counsel's affidavit does not unambiguously state that the audio was not played during that review, only that he does not remember the audio playing. Furthermore, we find persuasive that the trial transcript reveals no surprise by either the judge or counsel when the video clip (with audio) is played to the jury.

      As noted by the defendant, the judge invited both parties to provide the court with proposed findings with respect to the record. In response, the parties submitted a joint statement of the record, pursuant to Mass.R.A.P. 8(e), as amended, 378 Mass. 932 (1979), all of which the judge adopted. The defendant did not submit any further proposed findings to the judge.


text:
    COMMONWEALTH v. Devone SUBER.
    15-P-1631
    Appeals Court of Massachusetts.
    Entered: February 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant, Devone Suber, was convicted of unlawful possession of ammunition in violation of G. L. c. 269, § 10(h ). In a subsequent jury-waived trial, the defendant was found to be an armed career criminal, level three, pursuant to the Massachusetts Armed Career Criminals Act (ACCA). On appeal, he contends that reversal is warranted because (1) his pretrial motion to suppress evidence was erroneously denied; and (2) the trial judge violated his right to a fair trial by improperly advocating for the prosecution. He also argues that the armed career criminal level three determination was invalid under both the "residual" and "force" clauses of the ACCA. We affirm.

Background. Prior to trial, the defendant moved to suppress the ammunition found on his person by the police. We first summarize the facts as found by the motion judge in his comprehensive memorandum and order denying the motion.

On the night of May 3, 2013, a man was shot and killed at an apartment within the Alice Heywood Taylor housing project in the Mission Hill neighborhood of Boston. Police Officer Shannon O'Donnell arrived on the scene within a minute of the first radio call, which went out at 12:41 A.M. Upon entering the apartment, she observed a man lying on his back, bleeding from an apparent gunshot wound. Although he was receiving cardiopulmonary resuscitation, he exhibited no pulse or signs of respiration. A witness told O'Donnell that she had seen the shooter fire several rounds from a long handgun, and described him as a "black Hispanic male" who was about five feet, ten inches tall, around 180 pounds, and wearing a black sweatshirt.

Officers Steven Dodd and Andrew Hunter arrived at the apartment within three minutes of the first radio call. While on the scene, they heard the shooter's physical description as provided to Officer O'Donnell, and were told that, last observed, he was wearing a "dark hooded sweatshirt" and carrying "a long black handgun." Thereafter, they departed to search for potential suspects. Dodd and Hunter were dressed in plain clothes, and patrolled in an unmarked but readily identifiable Crown Victoria police cruiser. They were aware of many prior incidents of violent crime, including firearms offenses, reported in and around the Taylor housing project. Approximately nine to ten minutes after the initial call, the officers turned onto Ruggles Street, where they saw the defendant emerge from a path leaving the Taylor housing project. At that time, the defendant was approximately one-eighth of a mile from the apartment, and was the first person the officers had seen since departing the crime scene in their cruiser.

The defendant caught the officers' attention because he was walking quickly and generally fit the witness's description of the shooter. They noted that he was a black man, wearing a dark jacket or sweatshirt, with a height and build in the correct range. The defendant crossed the street, and began walking toward them on the sidewalk. Without activating the lights or siren, Officer Dodd pulled the cruiser to the left side of the street, facing the wrong way, and stopped a short distance in front of the defendant. As he did so, the defendant slowed and placed his hands in his jacket pockets. The officers exited the cruiser. Officer Dodd stood on the sidewalk about twenty feet from the defendant, and Officer Hunter walked toward him on the street. They identified themselves as police officers, and Officer Dodd directed the defendant to show his hands. When he did not immediately cooperate, Officer Hunter repeated the instruction, saying something like, "Let me see your hands." Although the defendant seemed nervous and was breathing heavily, he complied. Officer Dodd then asked whether he had any weapons, and he stated, "I might have something. But it's not mine. I found it in Mattapan."

At that point, Officer Hunter pat frisked the defendant and discovered a box of bullets. Upon learning that he had neither a license to carry nor a firearm identification card, the officers placed him under arrest. He was convicted of the above listed charges, and this appeal ensued.

Discussion. 1. Motion to suppress. In reviewing a judge's ruling on a motion to suppress, "we accept the judge's findings of fact and will not disturb them absent clear error." Commonwealth v. Watson, 455 Mass. 246, 250 (2009). However, we "conduct an independent review of the judge's ultimate findings and conclusions of law." Commonwealth v. Washington, 449 Mass. 476, 480 (2007). The defendant does not challenge the findings of fact, and we discern no error therein. Accepting those facts, we conclude that the motion was properly denied.

The motion was denied on the grounds that (1) the defendant was not constitutionally seized until the patfrisk; and (2) at that time, the officers had reasonable suspicion to conduct the search. The defendant argues that the judge erred on both fronts, and that the bullets should have been suppressed as the fruit of the officers' unlawful actions. Specifically, he urges that, under the totality of the circumstances, he was seized when the officers inquired whether he had any weapons; and that, at that moment, they lacked the reasonable suspicion necessary to conduct a lawful Terry stop. See Terry v. Ohio, 392 U.S. 1, 20 (1968). We disagree. Even assuming that the defendant was seized at the moment he suggests, the facts then known to the officers, taken together, justified the stop. See Commonwealth v. McKoy, 83 Mass. App. Ct. 309, 313 (2013).

"[A]n investigatory stop is constitutionally justified if it is conducted on reasonable suspicion that the person seized has committed, is committing, or is about to commit a crime.... That suspicion must be grounded in specific, articulable facts and reasonable inferences [drawn] therefrom rather than on a hunch." Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007) (quotation omitted). Under this "objective standard," we bear in mind that "a combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief." Commonwealth v. Meneus, 476 Mass. 231, 235-236 (2017) (quotation omitted).

Here, a host of factors established a reasonable belief that the defendant had been involved in the shooting even before Officer Dodd's weapons inquiry. First, the defendant was spotted in close "geographical and temporal proximity" to the crime, id. at 240, having encountered the officers about ten minutes after the shooting, only one-eighth of a mile from the apartment. See Commonwealth v. Barros, 425 Mass. 572, 584 (1997) ; Commonwealth v. Depina, 456 Mass. 238, 246 (2010). Second, he generally fit the witness's detailed description of the suspect both in terms of his physical attributes and his clothing. Contrast Commonwealth v. Cheek, 413 Mass. 492, 496 (1992) (no reasonable suspicion where officers knew suspect's race but lacked other distinguishing characteristics such as height and weight). Third, his behavior was suspicious in that he appeared nervous, was breathing heavily, and initially refused to remove his hands from his pockets. See DePeiza, 449 Mass. at 371-372 ; Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 373-374 (2010). Lastly, the interaction occurred in a high crime area, see DePeiza, supra at 372-373, in the immediate aftermath of a shooting. See Depina, supra at 247 ("The gravity of the crime and the present danger of the circumstances may be considered in the reasonable suspicion calculus"). These facts were sufficient to create an "individualized suspicion," Commonwealth v. Warren, 475 Mass. 530, 534 (2016), that the defendant was the perpetrator of the shooting, and justified the officers' investigatory stop.

2. Right to a fair trial. Prior to trial, the Commonwealth notified the defendant that it intended to elicit an opinion from its ballistics expert, Detective Camper, about whether the bullets found on the defendant's person constituted ammunition within the meaning of G. L. c. 269, § 10(h ). At trial, Detective Camper and Deputy Superintendent John Brown, both of the Boston police department, testified to the composition of ammunition generally, and Detective Camper described the ammunition recovered from the defendant in the present case. Detective Camper did not, however, offer an explicit opinion on direct examination that the cartridges recovered from the defendant qualified as ammunition. Following cross-examination, the judge mentioned this oversight to the parties at sidebar. The next morning, the Commonwealth was permitted to elicit Detective Camper's opinion on redirect examination over the defendant's objection. The defendant now argues, relying primarily on Commonwealth v. Sneed, 376 Mass. 867 (1978), that the judge's actions amounted to improper advocacy in favor of the prosecution, and deprived him of his due process right to a fair trial. We disagree.

In Sneed, the Supreme Judicial Court granted a new trial where the judge exhibited clear partiality in favor of the prosecution, both in his comments made in front of the jury, as well as in his instructions to them. See id. at 869-872. There, "the words of the judge, in total, could hardly have had anything other than a prejudicial effect on the jury." Id. at 872. There is no such judicial misconduct in this case. Here, the judge's only challenged comments were uttered outside the presence of the jury, where his imprimatur could not have had any prejudicial effect on their deliberations. See id. at 870 (noting that "any judicial comment is likely to be accorded substantial weight by the jury"). Moreover, we detect no abuse of discretion. See Commonwealth v. Hoffer, 375 Mass. 369, 375 (1978) (trial judge has discretion to allow or limit questioning on redirect examination).

In addition, the defendant's argument ignores other evidence introduced at trial, which is not challenged on appeal, demonstrating that the bullets constituted ammunition within the meaning of the statute. See Commonwealth v. Mendes, 44 Mass. App. Ct. 903, 904 (1997). We are confident that the quality and quantity of that evidence negated any risk that the judge's ruling somehow impacted the outcome of this case.

3. Armed career criminal conviction. At the defendant's jury-waived trial on the armed career criminal portion of the indictment, the Commonwealth produced evidence of three prior convictions. The defendant moved for a required finding of not guilty arguing, in part, that the Commonwealth failed to establish that the aggravated assault and battery (AA & B) conviction qualified as a "violent crime" within the meaning of the ACCA. The judge denied the motion, and found that the defendant was an armed career criminal based on all three predicate offenses. In so finding, he held that the AA & B conviction qualified as a violent crime under both the residual and force clauses of the ACCA. On appeal, given that the residual clause was recently declared void for vagueness, see Commonwealth v. Beal, 474 Mass. 341, 351 (2016), the defendant primarily argues that there was insufficient evidence to support the force clause finding. We disagree.

In reviewing a claim of insufficient evidence, we determine whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis omitted). Commonwealth v. St. Hilaire, 470 Mass. 338, 343 (2015), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). At a trial for sentence enhancement, "the Commonwealth need not retry the prior conviction"; rather, the "evidence must suffice to prove ... that the crime for which [the defendant] was convicted was a violent crime." Commonwealth v. Eberhart, 461 Mass. 809, 816 (2012). Where the defendant was convicted under a "broad statute that encompasses multiple crimes, not all of which are categorically violent," a certified copy of the conviction will not suffice. Beal, supra (quotation omitted). In such cases, Massachusetts courts use the modified categorical approach, examining extrinsic evidence, to determine the particular theory underlying the conviction. See Eberhart, supra at 816.

Aggravated assault and battery, G. L. c. 265, § 13A(b ), is not categorically a violent crime and, therefore, necessitates this modified categorical approach. As explained in Eberhart, "The statutory crime of assault and battery, G. L. c. 265, § 13A, encompasses three common-law crimes: harmful battery, reckless battery, and offensive battery." 461 Mass. at 818. This is also true of AA & B. However, only two of those three variations-harmful and reckless battery-qualify as "violent crimes" under the force clause. See id. at 818-819. Thus, a conviction of AA & B can qualify as a violent crime only if there is "some additional evidence" that it was for a harmful or reckless battery. See Commonwealth v. Colon, 81 Mass. App. Ct. 8, 16-17 (2011). Viewing the evidence in the light most favorable to the prosecution, see St. Hilaire, 470 Mass. at 343, a rational fact finder could have found that the defendant's AA & B conviction was for a harmful battery.

At the jury-waived trial, the Commonwealth introduced information about the factual basis for the AA & B conviction. First, it introduced the docket sheet, criminal complaint, and tender of plea sheet, which, together, indicated that the defendant pleaded guilty to a May 8, 2007, aggravated assault and battery on a victim who was then three months pregnant. Next, the Commonwealth elicited testimony from an MBTA police officer, Vincent Moy, regarding the circumstances surrounding the defendant's arrest. Per Officer Moy's testimony, on the night of May 8, 2007, he was dispatched to the Ruggles MBTA station where a suspect had been detained. Upon arriving, he observed the victim, who was scared, crying, and had a swollen face, and spoke with her about the assault. Shortly thereafter, the defendant was arrested and booked. This factual background, including the evidence of the victim's swollen face, was sufficient for a rational trier of fact to conclude, beyond a reasonable doubt, that the theory underlying the defendant's conviction was harmful battery. Contrast Eberhart, 461 Mass. at 813, 820 (Commonwealth failed to prove that a simple assault and battery constituted a violent crime where the only evidence was a certified copy of the conviction and testimony from the arresting officer that "provided no substantive information about the crime").

Judgment affirmed.

      The defendant was acquitted on charges of murder in the first degree, armed assault with intent to murder, assault and battery by means of a dangerous weapon, and unlawfully carrying a firearm without a license.

      The motion judge did not preside at the trial.

      The defendant's appearance generally conformed to the witness's description, as he weighs about 180 pounds, is approximately five feet, eight inches tall, and was wearing a dark top. Per the motion judge's findings, however, the defendant was wearing a jacket with no hood, and a "mottled pattern of mostly dark blue with some black or deep navy blue, some brighter blue, and some white parts."

      The defendant's race and weight matched the description, and his height and jacket were similar to those described by the witness. See Commonwealth v. Ancrum, 65 Mass. App. Ct. 647, 653 (2006) ("[A] full match up of all parts of the description" is not necessary to establish reasonable suspicion [quotation omitted] ).

      The defendant objected primarily on the ground that the expert's opinion was outside the scope of cross-examination. However, in the body of the written objection subsequently submitted to the judge, the defendant raised the claim that the introduction of Detective Camper's opinion evidence on redirect examination would cause the court to abandon its proper judicial role, and constitute advocacy for the Commonwealth.

      In order to prove a trial judge's abuse of discretion, the defendant must show prejudice. Commonwealth v. Rodriguez, 75 Mass. App. Ct. 235, 246 (2009). The defendant has not done so here because (1) the Commonwealth had already presented substantial evidence to prove that the bullets constituted ammunition prior to Detective Camper's testimony on redirect examination; and (2) the defendant had an opportunity to recross-examine the witness as to the additional testimony, but chose not to do so.

      Detective Camper used one of the cartridges recovered from the defendant to point out the components of ammunition to the jury. He also described the ammunition recovered from the defendant, in part, as "jacketed soft point .357 caliber cartridges," and further detailed his observations on cross-examination.

      The Commonwealth introduced records of two prior convictions of possession with intent to distribute a class B controlled substance, and one conviction of aggravated assault and battery.

      The ACCA imposes enhanced sentences on defendants who have previously been convicted of a "violent crime" or "serious drug offense." See G. L. c. 269, § 10G.

      As pertinent here, the force clause defines a "violent crime" as one that "has as an element the use, attempted use or threatened use of physical force." The residual clause (no longer in effect) included crimes that "otherwise involve[ ] conduct that presents a serious risk of physical injury to another." G. L. c. 140, § 121, as appearing in St. 1998, c. 108, § 8.

      In Commonwealth v. Beal, 474 Mass. 341, 351 (2016), which was decided during the pendency of this appeal, the Supreme Judicial Court concluded that "the residual clause of the Massachusetts ACCA is unconstitutionally vague." As a result, we agree with the defendant that the AA & B conviction cannot qualify as a predicate offense under the residual clause.

      The defendant does not contend that the other two convictions constituted invalid predicate offenses. To the contrary, his requested relief, as to this claim, is to be resentenced as a level two armed career criminal.

      Unlike in Federal court, the inquiry made by sentencing judges in Massachusetts State courts is not limited to the trial record of the predicate crimes. See Commonwealth v. Eberhart, 461 Mass. at 816. Instead, "the trial judge may admit any evidence that would have been admissible at the original trial." Ibid. (quotation omitted).

      AA & B differs from simple assault and battery in that it carries a steeper penalty, and requires additional proof that the assault at issue: (i) caused serious bodily injury; (ii) was carried out upon a pregnant victim, where the defendant knew or had reason to know of the pregnancy; or (iii) was carried out on a victim who had a restraining order against the defendant, where the defendant knew of the order. G. L. c. 265, § 13A(b ), as appearing in St. 2002, c. 35, § 1. However, "[t]hese differences do not change the underlying acts that constitute an assault and battery." Beal, 474 Mass. at 352.

      A harmful battery is defined as "[a]ny touching with such violence that bodily harm is likely to result." Eberhart, 461 Mass. at 818 (quotation omitted).


text:
    COMMONWEALTH v. Gabriel ARIAS.
    16-P-1273
    Appeals Court of Massachusetts.
    Entered: February 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial, the defendant, Gabriel Arias, was convicted of misleading a police officer during an investigation in violation of G. L. c. 268, § 13B. On appeal, the defendant challenges the jury instructions and the admission of statements and gang evidence pursuant to a joint venture theory. We agree that the jury instructions inaccurately defined an element of the offense and created a substantial risk of a miscarriage of justice. We therefore reverse. We also determine that the evidence would have been sufficient to allow the jury, if correctly instructed, to find the defendant guilty of violating § 13B.

Discussion. a. Jury instructions. The defendant contends that the trial judge, who relied on the model jury instructions in effect at the time of trial, inaccurately instructed the jury on the elements of misleading a police officer. Because the defendant did not raise the argument at trial, we review the challenged instruction for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

The Supreme Judicial Court clarified the meaning of "misleads" in the context of false statements in Commonwealth v. Paquette, 475 Mass. 793 (2016). See Commonwealth v. Tejeda, 476 Mass. 817, 819-820 (2017) (clarifying the meaning of "misleads" in the context of nonverbal conduct). As here, the jury in Paquette were instructed largely in accordance with the model instructions in effect at the time of trial. See Paquette, supra at 798-799. However, the instructions incorrectly permitted the jury "to conclude that the defendant 'misled' police even if his false or incomplete statements could not reasonably have led police to pursue a materially different course of investigation." Id. at 802. As we are compelled to follow the mandatory language and holding in Paquette, we conclude that this instruction created a substantial risk of a miscarriage of justice.

b. Sufficiency of the evidence. We now consider whether the evidence would have been insufficient to allow the jury to convict the defendant had they received a correct instruction about the elements of § 13B. See id. at 804. Under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), looking at the evidence in a light most favorable to the Commonwealth, there would have been sufficient evidence for the jury to conclude that the defendant violated the statute.

At trial, the Commonwealth presented evidence that the defendant spoke with police on August 28, 2012, as officers investigated a home invasion, attempted robbery, and murder that occurred in Billerica in the early hours of July 7, 2012. In summary, the defendant told police that he was unaware of any incident occurring in Billerica between July 6 and July 7, and that he was not in Billerica that night. He initially denied being in contact with Steven Touch and Adam Bradley that night, both of whom had been identified in the investigation. He instead told police that he went to a party in Salem, leaving for the party between 10:00 P.M. and 11:00 P.M. and returning to his home in Lynn between 2:00 A.M. and 3:00 A.M. During the interview, he gave the officers his cellular telephone (cell phone) number and also told them that his cell phone was passcode protected and that no one else had access to it.

The Commonwealth presented evidence contradicting the defendant's statement about his whereabouts and communications. Police had been investigating the incident before speaking with the defendant. They identified several individuals in the course of that investigation, including two individuals matching physical descriptions of the intruders. Police also obtained "call detail records" for the defendant and several others. When police told the defendant that the call detail records indicated that the defendant spoke with Touch and Peter Bin, another person identified in the investigation, the defendant then acknowledged the calls and said both Bin and Touch called about going to Lowell, and that Touch called the defendant's home landline telephone at an early hour "[t]o see what's up."

After speaking with the defendant, the police obtained information from his mother contradicting the defendant's statement to them. The defendant's mother, who lived with the defendant, testified that between 5:30 A.M. and 6:00 A.M. on the day in question she answered a call on their home's landline telephone from a friend of the defendant, and that the friend said that the defendant left his cell phone in the friend's car that night. She also testified that she believed that the defendant returned home at 5:00 A.M.

The police also obtained cellular site location information (CSLI) for the defendant's password protected cell phone. The CSLI placed the defendant's cell phone, and inferentially the defendant, at 3:33 A.M. on Boston Road in Billerica, which is the same street where the home invasion occurred, and is consistent with the defendant traveling from Marblehead to Billerica to Lynn. This evidence contradicted the defendant's statement to police that he returned home between 2:00 A.M. and 3:00 A.M. The jury could infer that the defendant was with the others under investigation and that he provided a false alibi.

The jury could have concluded that the defendant's statements "reasonably could have led police to pursue a materially different course of investigation." Paquette, 475 Mass. at 805. The defendant's responses to police regarding when he left and arrived home went beyond a "short exculpatory denial" that would have left police in the same position had the defendant remained silent. Id. at 803. See Commonwealth v. Morse, 468 Mass. 360, 374 (2014) (defendant's statement was an exculpatory denial, "not a content-laden fabrication designed to send police off course"). Although police had identified two individuals matching descriptions of the intruders, a victim reported that there were four intruders and police were still investigating and identifying others involved. The jury reasonably could have inferred that the defendant sought to divert attention from himself and suggest that he could not have been involved with the alleged crimes. The statements could have led police to investigate the defendant's whereabouts after he left the party in Salem and investigate whether he further misrepresented his contact with Bin and Touch, or they could have led the police to further investigate other potential persons of interest. See Paquette, supra at 800-801. The statements "were affirmative misrepresentations the jury could reasonably conclude were made to send the police off course." Commonwealth v. Occhiuto, 88 Mass. App. Ct. 489, 506 (2015). It is inconsequential that the statements did not actually mislead the police. See Commonwealth v. Figueroa, 464 Mass. 365, 372-373 (2013) (defendant on parole misled officer when misrepresenting his whereabouts).

Conclusion. The judgment is reversed, and the verdict is set aside.

So ordered.

Judgment reversed. Verdict set aside.

      The elements of misleading a police officer are "(1) wilfully misleading, directly or indirectly, (2) a police officer (3) with the intent to impede, obstruct, delay, harm, punish, or otherwise interfere thereby with (4) a criminal investigation" (footnote omitted). Commonwealth v. Paquette, 475 Mass. 793, 797 (2016).

      The defendant's trial occurred in 2014; the trial judge issued jury instructions prior to and without the benefit of Paquette.

      Both parties reference information that was not before the jury at trial. In reviewing the sufficiency of the evidence, we only consider the evidence actually before the jury.

      The call detail records provided information about calls placed to and from telephone numbers, with the date and time of each call.

      The Commonwealth elicited testimony from an officer that the defendant's mother told him that "Steven" called the defendant's home that morning. The testimony was admitted for impeachment purposes only.

      The trial record is unclear when police requested the CSLI and whether they received it before speaking with the defendant. The trial record was clear that the police had the call detail records before speaking with the defendant because they challenged his initial statement to them based on the records.

      A victim testified that the home invasion began at approximately 3:50 a.m.

      We do not reach the other issues raised by the defendant on appeal. The parties may address these issues before the Superior Court at any retrial.


text:
    BARRON CHEVROLET, INC. v. Linda R. BARRON.
    16-P-1667
    Appeals Court of Massachusetts.
    Entered: February 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, Barron Chevrolet, Inc. (BCI), at the prompting of Reginald I. Barron, Sr., commenced this action in 2013, seeking an accounting from Reginald's former wife, defendant Linda R. Barron, relative to the time period at least between 2004 and 2007 when, pursuant to an order entered in the Arizona court with jurisdiction over their divorce, she controlled BCI's income. Acting on a motion for summary judgment filed by Linda, a judge of the Superior Court (rule 56 judge) dismissed BCI's case after concluding that there was no genuine issue that she had already produced documentation sufficient to account for her activities during the term of the Arizona order. This appeal followed.

Having conducted the required de novo review of the summary judgment record, and having viewed all material facts in the light most favorable to BCI as the nonmoving party, see Scholz v. Delp, 473 Mass. 242, 249 (2015), we affirm.

Background. The following undisputed facts are taken from the record. BCI is a Delaware corporation which, at all material times, generated income by leasing out the property it owned in Danvers. At the time this complaint was filed, Reginald and Linda each owned forty-nine percent of BCI. The remaining two percent of BCI was divided among their three adult children.

Many years prior to the initiation of this action, Linda and Reginald were involved in divorce proceedings in Arizona. On November 8, 2004, the judge presiding over the divorce proceedings issued an order declaring Reginald in contempt and directing that the monthly income received by BCI for the lease of the Danvers property was thereafter to be directed to Linda, who was to deposit it "into a new corporate account under her control" and use it to make previously agreed-upon disbursements (Arizona order). The Arizona order was in effect for close to two and one-half years, from December of 2004, to mid-April of 2007, at which point the Arizona judge transferred control over BCI's rental income to a special master.

During the pendency of the Arizona order, Linda opened a checking account titled the "Linda R. Barron (FBO) Barron Chevrolet Lease Account," deposited the monthly rental income into it, and then disbursed the funds as required. On a monthly basis, she also provided Reginald or his attorneys, as well as BCI's accountant, with copies of (1) the bank statements for the account, (2) her own handwritten ledger in which she contemporaneously logged every transaction she conducted relative to BCI's rental income, and (3) the bills she paid on BCI's behalf.

On May 8, 2012, some five years after Linda last had control of BCI's rental income, Reginald allegedly sought and secured authorization to hire counsel on behalf of BCI to pursue material needed to complete an audit of BCI's finances "from 2007 to 2009" and, if necessary, to institute litigation to obtain the same. Subsequently, on May 30, 2013, by then more than six years after Linda last had control of BCI's rental income, BCI, at Reginald's direction, commenced the present action, asserting a single count for an equitable accounting (and any resulting damages shown). Linda responded, raising numerous affirmative defenses, including that she had already provided such an accounting, and asserting certain counterclaims.

Discussion. 1. Accounting. BCI advances several arguments in support of its claim of entitlement to an accounting, none of which has merit. Ultimately, however, the claim fails for a fundamental reason; namely, it is undisputed that BCI already received the accounting it seeks. As detailed supra, the summary judgment record reveals that, on a monthly basis during the term of the Arizona order, Linda provided BCI's accountant, as well as Reginald or Reginald's attorneys, with copies of multiple forms of documentation detailing her handling of BCI's rental income. The information and material she provided were extensive and detailed. BCI, for its part, has not produced any evidence that the documentation was insufficient to account for Linda's handling of BCI's rental income during the relevant time period. Nor has BCI established that, more than six years after the fact, there is now reason to believe that Linda misdirected or misappropriated any of BCI's funds. Simply put, there is no dispute that Linda has already accounted for her handling of BCI's rental income during the term of the Arizona order. Accordingly, she is entitled as a matter of law to judgment on BCI's claim for an equitable accounting.

2. Fee issue. More than one year into this litigation and on the eve of the depositions of BCI and Reginald, BCI's second set of attorneys in this case filed an emergency motion to withdraw. According to the trial court docket entries, Reginald had previously fired BCI's first attorney. The second set of attorneys sought to withdraw due to what they suggested was an "irretrievable breakdown of communications," evidenced by Reginald's refusal to cooperate with them.

After a hearing, a different judge (fee judge) allowed the motion to withdraw, but ordered that "[a]ll costs associated with the plaintiff's change in counsel, including successor counsel's review of the case file, meetings with the client and notices to effectuate an appearance shall be borne exclusively by Reginald I. Barron, Sr., and not by the corporation" (fee order).

BCI argues that the fee judge abused his discretion in ordering Reginald to pay for BCI's successor counsel fees when Reginald was not even a party to the case. Additionally, BCI argues that it was deprived of due process when the fee order issued, requiring either Reginald to pay for costs associated with the change of counsel or BCI to "drop the lawsuit," without notice or opportunity to be heard.

To the extent that the fee order purported to order Reginald to pay BCI's legal fees, that issue is more properly raised by Reginald as the aggrieved party, not BCI. The portion of the order affecting BCI was that which prohibited it from paying for the costs associated with a second change of counsel. The fee judge found that Reginald was responsible for the repeated changes of counsel, and that Linda would be prejudiced as a BCI shareholder if the costs associated with another change of counsel were to be paid by corporate funds. The fee order essentially prevented BCI from unnecessarily depleting corporate assets during the litigation. The harm identified by BCI, that it may be forced to drop the lawsuit, did not materialize here. We therefore need not address this theoretical issue. See Mullen v. Mullen, 7 Mass. App. Ct. 899, 900 (1979) (payment in satisfaction of support arrearages rendered moot issue of civil contempt for failure to make such payments).

3. Request for appellate attorney's fees and double costs. Linda requests that we declare BCI's appeal frivolous and award appropriate relief. We agree that BCI's appeal was frivolous and that an award of appellate attorney's fees and double costs is appropriate. See Avery v. Steele, 414 Mass. 450, 455-457 (1993). See also G. L. c. 211A, § 15. Linda may file supporting documentation for her request for appellate attorney's fees and double costs within fourteen days of the date of the rescript. See Fabre v. Walton, 441 Mass. 9, 10 (2014). The documentation should be detailed enough to allow this panel to properly calculate a fee award. See Fontaine v. Ebtec Corp., 415 Mass. 309, 324-325 (1993). BCI will have fourteen days thereafter within which to respond.

Judgment affirmed.

      As several individuals share a surname, we use their first names to avoid confusion.

      BCI also appeals from an order regarding attorney's fees.

      BCI failed to include the required record references to the record in support of both its responses to Linda's statement of undisputed material facts and its own statement of additional facts. See Superior Court Rule 9A(b)(5)(ii) and (iv) (as to both, requiring "page or paragraph references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents"). Like the rule 56 judge, therefore, we have not considered those responses or additional facts in reaching our decision.

      Linda contests the assertion that BCI's board of directors authorized this action. She notes, among other things, that the purported authorization references an audit of BCI's finances for the time period of 2007 to 2009, while BCI now seeks an accounting from her for the term of the Arizona order, which ran from December of 2004, to mid-April of 2007. Because we affirm on other grounds, however, we need not reach that issue.

      BCI seeks an accounting for not only the term of the Arizona order, during which Linda controlled the rental income, but also for the later time period during which the special master was in control. The special master is not a party to this case. Therefore, such an extended accounting could not be ordered as part of this case.

      In one counterclaim, Linda sought an order directing BCI to issue her a certificate evidencing her stock in the company. The rule 56 judge ordered the entry of summary judgment in her favor on that counterclaim and BCI has not appealed from that ruling. Linda's other counterclaim, for money lent, was dismissed by stipulation of the parties.

      We note that BCI has continued to argue on appeal issues regarding the Arizona order, despite the fact that those issues were waived by BCI's counsel during the summary judgment hearing. Additionally, BCI has argued on appeal issues that were never raised below, for example, that expert testimony was necessary to sustain summary judgment on the accounting claim. Those issues are deemed waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).

      BCI suggests that the bank statements that Linda provided did not include copies of the fronts and backs for "some" of the checks she issued. BCI has failed, however, to provide examples or to otherwise establish that the missing front or back of any specific check is noteworthy. It is also undisputed that Linda provided copies of all of the checks in her possession, custody, and control. BCI also subpoenaed the bank and secured all of the documents within the bank's possession, custody, and control regarding the account.

      Linda asserts that BCI's claim is barred by the applicable statutes of limitation and the equitable doctrine of laches. BCI has not responded to either of those affirmative defenses. Once again, however, we need not reach those issues given that we affirm on other grounds.

      BCI argues that the summary judgment should be vacated because the rule 56 judge abused his discretion by denying BCI's belated request that he recuse himself. As the argument is made in a footnote, however, it does not rise to the level of appellate argument, and we deem it waived. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Three Registered Voters v. Selectmen of Lynnfield, 90 Mass. App. Ct. 15, 21 n.18 (2016). We further note that, having reviewed the record, we see no basis for concluding that the rule 56 judge abused his discretion.

      As counsel for Linda stated at the hearing on the motion, Linda "throughout the course of this case has essentially been paying almost half of the costs to sue herself and a hundred percent of the costs to defend herself."


text:
    Julia MELANSON & another v. David J. SWIERZEWSKI.
    17-P-722
    Appeals Court of Massachusetts.
    Entered: February 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Robert M. Melanson.

   The plaintiffs appeal from a Superior Court judgment dismissing, as time barred, their complaint against the defendant for medical malpractice and loss of consortium. The plaintiffs argue that the motion judge improperly resolved a question of fact in determining that their claims accrued more than three years before they filed their complaint. We affirm.

Background. We summarize the pertinent facts as alleged in the complaint, as well as in affidavits submitted by plaintiff Julia Melanson and her consulting physician, Arthur M. Carlin, in opposition to the defendant's motion to dismiss. Upon submitting those affidavits, the plaintiffs asked, and the judge agreed, to treat the defendant's motion as one for summary judgment.

In 2012, the plaintiff, who had "previous abdominal medical history," was diagnosed with a form of diverticulitis and admitted to a hospital in Newburyport, where, on October 11, 2012, the defendant, a licensed physician, performed a laparoscopic sigmoid colectomy with low anterior anastomosis. Her postoperative stay was complicated by delirium, abdominal fluid drainage, and slow return of gastrointestinal function. She was discharged on October 22, 2012.

After experiencing chills, abdominal cramping, and emesis, she was readmitted on October 30, 2012. The defendant advised her that he thought there was a small bowel obstruction due to adhesions. After several days, he returned her to the operating room for an exploratory laparotomy. During her postoperative stay, she developed a pulmonary embolus; due to her lack of improvement, she requested transfer to a tertiary care center.

On November 8, 2012, she was transferred to Beth Israel Deaconess Medical Center (Beth Israel) in Boston for care by a different surgeon. Tests revealed leakage of urine from her left ureter into her left pelvis, caused by the defendant having severed the ureter during the October 11, 2012, surgery. A left nephrostomy tube was placed to drain the urine from the left kidney.

On December 14, 2012, and again on January 25, 2013, she was readmitted to Beth Israel with infections in the area of the nephrostomy tube. The infections were painful. On March 22, 2013, she was again readmitted and had surgery, performed by Beth Israel surgeons, to reimplant the severed ureter into the bladder. It was again determined that the ureter had been severed by the defendant during the initial surgery. Notably, there is no evidence that she was informed at this time that the reimplantation had "fixed" her problems or that she would experience no further symptoms.

Even after the March, 2013, surgery she "continued to experience abdominal issues," and inquired of her primary care physician and her Beth Israel surgeons regarding the cause, but they "evaded answering" and "never provided a satisfactory answer to [her] questions." In September or October, 2014, her attorney similarly inquired in writing of her treating physicians but received no response.

In August, 2015, she asked her attorney to obtain an independent medical evaluation. On September 9, 2015, she received such an evaluation, which concluded that the injury received when the defendant severed her ureter "was a substantial cause of [her] medical and surgical problems." The evaluating physician opined, however, "that the severing of the ureter and the failure to discover and remedy the situation did not constitute malpractice." "Given [her] complicated medical history[,] this was the very first time that [she] realized that the severing of [her] ureter was a substantial cause of [her] problems." But "[a]t that point and under the circumstances [she] understood that initiating legal action against [the defendant] would be irresponsible and acting in bad faith and accordingly sought another independent evaluation of [her] situation since [she] continued[ ]to have further abdominal issues."

This evaluation did not occur until September, 2016, when Dr. Carlin concluded that the defendant's severing of the left ureter, and subsequent failure to recognize and remedy the injury, deviated from the standard of care. She filed suit in Superior Court on September 13, 2016. On the defendant's motion, the complaint was dismissed as time barred, and this appeal followed.

Discussion. 1. Governing law. A medical malpractice action must be filed within three years after the cause of action accrues. G. L. c. 260, § 4. Under the "discovery rule" adopted for medical malpractice claims in Franklin v. Albert, 381 Mass. 611 (1980) (Franklin ), such a claim accrues when the plaintiff "(1) knew or had sufficient notice that she was harmed; and (2) knew or had sufficient notice of the cause of the harm." Lindsay v. Romano, 427 Mass. 771, 774 (1998) (Lindsay ), quoting from McGuinness v. Cotter, 412 Mass. 617, 627 (1992) (McGuinness ).

"It is not necessary that the plaintiff have notice that the defendant was actually responsible for the injury, only that she have knowledge or sufficient notice that the medical care given by the defendant may have caused the injury." Lindsay, 427 Mass. at 774. "In determining whether a party has sufficient notice of causation, our inquiry is whether, based on the information available to the plaintiff, a reasonably prudent person in the plaintiff's position should have discovered the cause of his or her injuries." Ibid., quoting from McGuinness, 412 Mass. at 628.

Of particular importance here, under the discovery rule, "[t]he plaintiff need not know the full extent of the injury before the statute starts to run." Bowen v. Eli Lilly & Co., 408 Mass. 204, 207 (1990) (Bowen ), citing Olsen v. Bell Tel.Labs., Inc., 388 Mass. 171, 175 (1983) (Olsen ). "If knowledge of the extent of injury were to control the accrual of a cause of action, the fixed time period of statutes of limitations effectively would be destroyed. The full extent of an injury often is not discoverable for many years after it has been incurred." Olsen, 388 Mass. at 175. Accordingly, "the statute of limitations starts to run when an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused her injury." Bowen, 408 Mass. at 207.

Also, "[w]e do not require that a plaintiff have notice of a breach of a duty before a cause of action may accrue." Id. at 208. See Parr v. Rosenthal, 475 Mass. 368, 378 (2016). Once a plaintiff has "(1) knowledge or sufficient notice that she was harmed and (2) knowledge or sufficient notice of what the cause of harm was," her claim accrues. Bowen, 408 Mass. at 208. "Thus on notice, the potential litigant has the duty to discover from the legal, scientific, and medical communities whether the theory of causation is supportable and whether it supports a legal claim." Ibid., quoting from Fidler v. Eastman Kodak Co., 714 F.2d 192, 199 (1st Cir. 1983). "Reasonable notice that a particular product or a particular act of another person may have been a cause of harm to a plaintiff creates a duty of inquiry and starts the running of the statute of limitations." Bowen, 408 Mass. at 210. "[L]imitation statutes encourage plaintiffs to bring actions within prescribed deadlines when evidence is fresh and available." Franklin, 381 Mass. at 618. The Legislature, in G. L. c. 260, § 4, gave potential medical malpractice claimants three years from the date their claims accrued to determine whether they have viable causes of action. Within that period, such claimants must exercise diligence.

"When a plaintiff knew or should have known of [her] cause of action is a question of fact to be determined by the jury." Lindsay, 427 Mass. at 774. But, where there is no genuine dispute of material fact, the issue may be decided on summary judgment. See Malapanis v. Shirazi, 21 Mass. App. Ct. 378, 383 (1986). See also Bowen, 408 Mass. at 210.

2. Application of law to this case. Here, we agree with the motion judge that the plaintiff's cause of action accrued no later than March 22, 2013, and accordingly that the complaint, filed more than three years later, was time barred.

By the plaintiff's own admission, as of March 22, 2013, she knew that the defendant's having severed her ureter had caused her to have leakage of urine into her pelvis; two surgeries (the first to insert the nephrostomy tube and the second to reimplant the ureter); two painful infections at the nephrostomy tube site; and three hospitalizations (December 14, 2012, January 25, 2013, and March 22, 2013)-or four, if one considers the November 8, 2012, postoperative hospitalization during which the severed ureter was identified. She knew by March 22, 2013, that she had suffered these injuries (including the need for intrusive and burdensome treatments) and that the defendant had caused them. Her claim accrued by that date.

On this record, it makes no difference that (drawing all reasonable inferences in her favor) the plaintiff did not learn until sometime after March 22, 2013, of all of the harms caused by the defendant. "The plaintiff need not know the full extent of the injury before the statute starts to run." Bowen, 408 Mass. at 207. Nor does the plaintiff here allege that she was assured, by the defendant or anyone else, that her problems had been fully resolved by the March 22, 2013, surgery; that she would experience no additional harms as a result of the severed ureter; or that any harms she did experience after March 22, 2013, were not due to the severed ureter. Here, moreover, the plaintiff acknowledges that she was affirmatively advised in September, 2015, that the severed ureter was the cause of her continued abdominal problems. As she put it at oral argument, she was told at that time, "well within the three-year period," that "[her] injuries are causally related to what [the defendant] did or didn't do."

Nor does it help the plaintiff that, as of March 22, 2013, she did not yet know whether she had a viable legal claim against the defendant. See id. at 208. What matters is her knowledge that the defendant had caused her harm. That she did not become subjectively aware until September, 2015, that the defendant's acts were a "substantial cause" of her original and continuing harms, and did not obtain another evaluation until September, 2016, when Dr. Carlin advised her that the defendant had breached a duty of care, does not relieve her from the operation of the statute of limitations. That statute gave her three years from the date of accrual to exercise reasonable diligence, i.e., to carry out her "duty to discover," ibid., or "duty of inquiry," id. at 210, to determine whether she had a viable cause of action and, if so, to file suit. After three years, as the Legislature has determined, the balance tips in favor of protecting defendants from stale claims.

Conclusion. The judge correctly ordered summary judgment dismissing the complaint as time barred.

Judgment affirmed.

      For simplicity we will hereafter refer to Julia Melanson as the plaintiff, as the operative facts concern her alone, and at this stage the loss of consortium claim by her husband, Robert M. Melanson, stands or falls with her malpractice claim.

      This consisted of colitis, two Caesarean sections, an appendectomy, a unilateral salpingo-oophorectomy, and a prior episode of diverticulitis.

      We mention this point only because, at oral argument, there was discussion whether she might have received such assurances. We have carefully reviewed the record and find no evidence or allegation to that effect.

      The complaint and affidavits do not specify whether she or her attorney directed any inquiries to the defendant and, if so, whether or how he responded.

      Dr. Carlin's affidavit noted that since the original surgery by the defendant, the plaintiff had suffered posttraumatic stress disorder, requiring her to see a therapist. "Also her prolonged illness and hospitalizations have likely contributed to a rapid decline in bone density for which she has suffered two severe bony fractures." Dr. Carlin's affidavit did not provide any details regarding the dates of these events.

      This is not a case like Lindsay, where, "[i]n light of the numerous medical opinions the plaintiff received that failed to establish any link between the defendant's conduct and the plaintiff's injury, the plaintiff may reasonably have concluded that the defendant's conduct was not the cause of her injury." Lindsay, 427 Mass. at 775. Here, the plaintiff's complaint alleges that the surgery of November 8, 2012, revealed that the defendant had severed her ureter and that the surgery of March 22, 2013, confirmed this fact. Her affidavit does not allege that her subsequent inquiries to her primary care physician and Beth Israel surgeons resulted in any contrary opinions.
      This record also distinguishes the case from Riley v. Presnell, 409 Mass. 239 (1991). In Riley, the effect of the defendant's alleged malpractice on the plaintiff's ability to understand that the defendant had injured him presented a dispute of fact regarding when the claim accrued, precluding summary judgment for the defendant. Riley, 409 Mass. at 245-248. Here, in contrast, although the plaintiff suffered delirium after the defendant performed his surgery on October 11, 2012, she states that she was discharged "in stable condition" on October 22, 2012, and she does not allege any inability to understand what was learned during the surgeries of November 8, 2012, or March 22, 2013.

      The plaintiff argues that, until she was advised that the defendant had breached a duty of care, she was effectively barred from filing suit by Mass.R.Civ.P. 11, as amended, 456 Mass. 1401 (2010), and G. L. c. 231, § 6F. This argument is waived, as she did not make it to the motion judge. The statement in her affidavit that filing suit before she had been so advised would have been "irresponsible and acting in bad faith," is no substitute for legal argument in her memorandum opposing the defendant's motion. In any event, the argument fails, for the reasons stated above. She fares no better by framing her argument as one for "equitable tolling" of the limitations period. The argument fits none of the recognized situations in which that doctrine applies. See Shafnacker v. Raymond James & Assocs., 425 Mass. 724, 728 (1997).