text:
    COMMONWEALTH v. Troy TAFT.
    17-P-852
    Appeals Court of Massachusetts.
    Entered: June 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of assault and battery ( G. L. c. 265, § 13A [b ] ), as a lesser included of the charged offense of assault and battery by means of a dangerous weapon ( G. L. c. 265, § 15A [b ] ). He appeals, arguing that the judge erred by (1) denying his motion for a required finding of not guilty of assault and battery; (2) excluding cross-examination of the victim regarding evidence of bias; (3) not providing an instruction to the jury on the "castle" law defense; and (4) admitting overly prejudicial evidence of the defendant's arrest and booking photograph. We affirm.

Background. The jury could have found the following facts. The defendant and the victim each had individual apartments within a multi-dwelling home. On June 20, 2016, the victim left his apartment to go the store for groceries. While leaving the property, the victim and the defendant began to argue. Roughly ten minutes later, the victim returned to the property carrying groceries. Upon walking through the gate to the front yard, the defendant and the victim continued their argument and they began to yell at each other. The argument escalated, and the defendant told the victim, "I'm gonna kick your ass." As the defendant and the victim approached the front door of the property, the defendant's friend, who was standing nearby, tried to keep the arguing parties apart by standing between them.

The dispute became physical when the victim entered the property's common area in front of the defendant's apartment. While in the common area, the defendant's friend attempted to push the defendant through the open door of the defendant's apartment away from the victim. With the defendant's friend between them, the victim attempted to reach over to get to the defendant. While reaching, the victim was struck in the head with what he believed to have been a hammer. The victim fell to the ground bleeding and began "see[ing] stars." The victim did not see who hit him, but saw the defendant "menacing over him" immediately after.

The victim then telephoned 911. Two police officers responded, and upon entering the building noticed blood on the door to the defendant's apartment. Later, when one officer spoke with the defendant, the officer did not notice any visible injuries to the defendant, but did see blood on his shirt. The defendant denied knowing where the blood came from and spontaneously stated he did not "hit anybody with a hammer." The defendant was subsequently arrested.

Discussion. 1. Required finding of not guilty. In reviewing the denial of a motion for a required finding of not guilty, we must determine "whether, viewing the evidence in a light most favorable to the Commonwealth, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Commonwealth v. Cohen (No.1), 456 Mass. 94, 120 (2010), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The defendant argues that "[f]or the jury to find the facts according to the Commonwealth's theory, they inevitably had to engage in impermissible conjecture or surmise" because evidence at trial showed the defendant and the defendant's friend had equal opportunity and motive to strike the victim. Commonwealth v. Salemme, 395 Mass. 594, 600 (1985). We disagree.

Here, the sufficiency of the Commonwealth's evidence does not deteriorate merely because the defendant presents a contrary version of critical events in which the unidentified friend is the guilty party. See Commonwealth v. Robertson, 408 Mass. 747, 755 (1990). Even though the victim was unable to directly identify the defendant as the responsible party, a rational trier of fact could have reached that conclusion based on permissible inferences from the victim's testimony. Specifically, the victim's testimony showed that the defendant, not the defendant's friend, yelled a threat to the victim immediately prior to the battery. Also, the victim testified that the defendant was the only one "menacing over him" immediately after he was struck. Simply because other individuals were near the victim does not make this a case where the evidence requires a leap of conjecture after issues of weight and credibility are viewed in the light most favorable to the Commonwealth. Cf. Salemme, 395 Mass. at 600.

Therefore, the defendant's conviction of the lesser included offense of assault and battery was "not unwarranted because [it was] too remote from the ordinary course of events." Commonwealth v. Chinn, 6 Mass. App. Ct. 714, 716 (1978). We affirm the judge's denial of the defendant's motion for a required finding of not guilty.

2. Cross-examination. The defendant contends that limitations on his impeachment of the victim violated his right to confront and cross-examine the witnesses against him. See Commonwealth v. Noeun Sok, 439 Mass. 428, 435 (2003). However, based on the specific evidence proffered for impeachment purposes, we discern no abuse of discretion or other error of law in its exclusion. See Commonwealth v. Gagnon, 408 Mass. 185, 192 (1990) ("[T]he scope of cross-examination, including to what extent, the accuracy, veracity, and credibility of a witness may be tested, rests largely in the sound discretion of the judge, not subject to revision unless prejudice is shown to a party by reason of too narrow restriction or too great breadth of inquiry").

The defendant proffered evidence that eviction proceedings between the victim and his landlord provided motivation for the victim to lie to protect his tenancy. The defendant attempted to use a letter purportedly written by the victim to the landlord some two months before the events in this case, in which the victim promised to keep quiet and avoid any noise disturbances. Although a defendant has a constitutional right to question a witness on the issue of bias and prejudice, a trial judge may limit such examination concerning alleged bias if the questioning pertains to a collateral matter or is too speculative. See Commonwealth v. Weichel, 403 Mass. 103, 105-106 (1988) (judge properly excluded proffered evidence that had little, if any, legitimate value). See also Commonwealth v. Tam Bui, 419 Mass. 392, 400-402 (1995) (no abuse of discretion where judge concluded that evidence was insufficiently probative to justify its admission).

Here, any bias or motive to lie was speculative at best when the defendant's counsel admitted that the victim's housing issue was nearly resolved by the date of the incident and that the defendant had nothing to do with the eviction proceedings. The judge could conclude, within her discretion, that the defendant's theory of the victim's motive to lie about the physical conflict based on his eviction proceedings with his landlord was too tenuous to warrant cross-examination. See Tam Bui, 419 Mass. at 401. Accordingly, the judge did not commit reversible error.

3. "Castle" law instruction. The judge properly instructed the jury on self-defense. The defendant argues, however, that the judge should also have stated that he had no duty to retreat under the so-called "castle" law, as requested. See G. L. c. 278, § 8A. See also Commonwealth v. Peloquin, 437 Mass. 204, 207-208 (2002). Here, viewing the evidence in the light most favorable to the defendant, there is no testimony that the victim was unlawfully in the defendant's dwelling so as to be a trespasser. See Commonwealth v. Peterson, 53 Mass. App. Ct. 388, 389 (2001). All the evidence showed that the physical conflict was contained entirely within the common area of the multi-dwelling house, which is insufficient to warrant the instruction. See Commonwealth v. Jefferson, 36 Mass. App. Ct. 684, 687 (1994) (dwelling does not encompass hallway leading into apartment). There was no error.

4. Evidentiary rulings. Generally, relevant evidence may be excluded only when its probative value is substantially outweighed by the danger of unfair prejudice, or to prevent confusion of the issues, misleading the jury, being unnecessarily time-consuming, or being needlessly cumulative. See Mass. G. Evid. § 403 (2018). See also Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). We find no reversible error in the judge admitting evidence of the defendant's arrest or his booking photograph. While the evidence of the arrest was minimally relevant, the judge's clear instructions that the jury were to "disregard any formal complaints or allegations against the defendant as they are not evidence" ameliorated any risk of prejudice to the defendant. See Commonwealth v. Dunn, 407 Mass. 798, 807 (1990) (effectiveness of limiting instruction in minimizing the risk of unfair prejudice should be considered in the balance). The booking photograph was probative to refute the defendant's assertion of self-defense, and the judge's instructions minimized the risk of impermissible inferences. See Commonwealth v. Dew, 478 Mass. 304, 315 (2017). Accordingly, we affirm.

Judgment affirmed.

Order denying motion to set aside verdict affirmed.

      The defendant has appealed from his conviction and from the denial of a posttrial motion to set aside the verdict. See Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979).

      We find no error in the judge disqualifying the landlord from testifying after he had violated the defendant's own motion to sequester witnesses. See Commonwealth v. Bianco, 388 Mass. 358, 370 (1983).


source: Caselaw Access Project

license: Public Domain

text:
    Patricia K. CAULFIELD v. John T. MARTIN.
    17-P-1463
    Appeals Court of Massachusetts.
    Entered: June 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Individually and as trustee of the 12 Bow Street Nominee Trust.

   The plaintiff, Patricia K. Caulfield, appeals from a Superior Court summary judgment dismissing her malpractice claim against her former attorney, defendant John T. Martin. The motion judge ruled, on Martin's summary judgment motion, that Caulfield had no reasonable expectation of proving that Martin's conduct, although concededly negligent, proximately caused her any actual loss. We agree and affirm.

Background. The following facts are undisputed. Caulfield owned a home in Concord, financed by a mortgage to Washington Mutual Bank. That bank was subsequently placed in Federal Deposit Insurance Corporation (FDIC) receivership, and its assets were purchased by J.P. Morgan Chase Bank, N.A. (Chase). As of early 2009, Caulfield could no longer afford the monthly mortgage payments. Caulfield and Chase entered into a mortgage modification trial plan agreement in August, 2009, referred to by the acronym "TPP," but Chase refused to agree to a permanent modification and sent Caulfield a notice of foreclosure in 2010.

Caulfield retained Martin, who in 2012 filed in her name a Superior Court complaint against Chase (the 2012 action) for damages and injunctive relief. The 2012 action asserted five claims: breach of contract, breach of the implied covenant of good faith and fair dealing, violation of G. L. c. 93A, lack of statutory authority to foreclose, and intentional infliction of emotional distress. Chase removed the action to Federal court, after which Martin, as Caulfield's attorney, negligently failed to respond to discovery and various court orders, causing the action to be dismissed with prejudice in late 2013.

In 2014, Chase sent Caulfield another notice of foreclosure, prompting Caulfield, represented by different counsel, to file a second action against Chase (the 2014 action), this time directly in Federal court. The 2014 action asserted various State statutory claims challenging Chase's right to foreclose. A Federal judge dismissed the complaint for failure to state a claim upon which relief could be granted. Caulfield appealed but, while the appeal was pending, entered into a settlement agreement under which Chase accepted a "short payoff" of Caulfield's loan in the amount of $700,000, and paid Caulfield $2,500. Caulfield later sold the property for $800,000.

Caulfield then filed this malpractice action against Martin. She alleged that the 2012 action asserted meritorious claims, on which she should have prevailed and obtained damages, but that it was dismissed with prejudice due to Martin's negligence. As a result, she alleged, her 2014 action against Chase could assert only certain limited claims, which she was forced to settle for less than the actual damages originally caused by Chase.

Discussion. "When asserting a claim for legal malpractice, a plaintiff bears the burden of proving that [her] attorney committed a breach of the duty to use reasonable care, that the plaintiff suffered actual loss, and that the attorney's negligence proximately caused such loss." Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221, 226 (1999). This requires proof that the plaintiff "probably would have obtained a better result had the attorney exercised adequate skill and care." Poly v. Moylan, 423 Mass. 141, 145 (1996). This often involves a "trial within a trial," where the underlying action is presented to the trier of fact to determine, among other things, what, if any, damages were caused by the attorney's negligence. Fishman v. Brooks, 396 Mass. 643, 647 (1986). Here, because Caulfield would bear the burden of proof at the trial within a trial, Martin could obtain summary judgment by demonstrating that Caulfield had no reasonable expectation of proving an essential element of her case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

The motion judge ruled that Martin had demonstrated that Caulfield had no reasonable expectation of proving proximate cause, because, even if the 2012 action had not been dismissed due to Martin's negligence, the dismissal of the 2014 action "demonstrate[d] that Caulfield would not have obtained a better result in the 2012 action." We have considered the effect of the 2014 ruling on each of the five claims asserted in the 2012 action, and we agree with the motion judge.

1. Breach of contract. Caulfield claimed that Chase had breached the 2009 TPP agreement in 2010. The motion judge ruled, however, that this claim was "specifically addressed" by the dismissal, for failure to state a claim, of the count of Caulfield's 2014 action seeking a mortgage modification under G. L. c. 244, § 35B. The Federal judge had ruled that Chase had "complied with [c]hapter 244 prior to accelerating the mortgage" and no further compliance with § 35B was required.

Section 35B(b ) provides that "[a] creditor shall not cause publication of notice of a foreclosure sale ... upon certain mortgage loans unless it has first taken reasonable steps and made a good faith effort to avoid foreclosure." These steps include assessing the borrower's ability to make an affordable monthly payment and, in some circumstances, offering a loan modification. The only such steps described in Caulfield's 2014 complaint were those taken in connection with the 2009-2010 TPP process. The Federal judge's ruling that Chase had complied with § 35B necessarily embodied the judge's conclusion that Chase, through that TPP process, had taken reasonable steps and made a good faith effort to avoid foreclosure.

The Federal judge's rulings had issue preclusive effect in the present action, as the motion judge concluded elsewhere in her decision. Caulfield's brief on appeal makes no argument to the contrary; she addresses only claim preclusion, not issue preclusion. Even if the 2014 judgment of dismissal were erroneous, it would have preclusive effect, absent circumstances not present here. See Morganelli v. Building Inspector of Canton, 7 Mass. App. Ct. 475, 487 (1979). The ruling that Chase, through the TPP process, had taken reasonable steps and made a good faith effort to avoid foreclosure thus made it impossible for Caulfield to prove, in this action, that the dismissal of her TPP-based breach of contract claim proximately caused her any harm.

2. Implied covenant of good faith and fair dealing. Caulfield claimed that Chase had breached the 2009 TPP agreement's implied covenant of good faith and fair dealing. Essentially for the reason just stated, the Federal judge's ruling on the § 35B claim made it impossible for Caulfield to prove, in this action, that the dismissal of her TPP-based implied covenant claim proximately caused her any harm.

3. General Laws c. 93A. Caulfield's G. L. c. 93A claim alleged three theories, the first of which was that Chase had acted deceptively in connection with the TPP loan modification. Again, the Federal judge's ruling that Chase had taken reasonable and good faith steps through the TPP process made it impossible for Caulfield to prove, in this action, the viability of her TPP-based c. 93A theory.

Caulfield's second c. 93A theory was that Chase had initiated foreclosure proceedings without being the actual holder of the note and mortgage. But the Federal judge ruled, in dismissing the 2014 action for failure to state a claim, that "[i]n the exhibits presented to the court in both this action and [the 2012] litigation regarding foreclosure, Caulfield has failed to support or even make any plausible allegations that [Chase] is not the holder of the [n]ote and mortgage ...." That ruling made it impossible for Caulfield to prove, in this action, the viability of her second c. 93A theory -- notwithstanding Caulfield's argument that the Federal judge's ruling erroneously overlooked certain evidence. See Morganelli, 7 Mass. App. Ct. at 487.

Caulfield's third c. 93A theory was that Chase was not entitled to foreclose because, in asserted violation of G. L. c. 185, § 67, it had not registered any instrument showing that the mortgage had been assigned to it. But Caulfield's 2014 complaint had advanced the closely related claim that Chase was not entitled to foreclose because, in asserted violation of G. L. c. 244, § 14, it had not registered such an assignment. The Federal judge dismissed this claim, ruling that Federal law empowered the FDIC to transfer the mortgage without any assignment, thus relieving Chase of any duty to record the transfer. That ruling made it impossible for Caulfield to prove, in this action, the viability of her third c. 93A theory.

In sum, Caulfield has shown no error in the motion judge's conclusion that she had no reasonable expectation of proving that the dismissal of her c. 93A claim due to Martin's negligence proximately caused her any harm.

4. Statutory authority to foreclose. Caulfield's claim that Chase lacked the statutory authority to foreclose was based on the same asserted noncompliance with G. L. c. 185, § 67, as her third c. 93A theory. For the reasons just discussed, Caulfield had no reasonable expectation of proving that the dismissal of this claim proximately caused her any harm.

5. Intentional infliction of emotional distress. Caulfield's claim for intentional infliction of emotional distress was premised on Chase's conduct with respect to the TPP agreement and in attempting to foreclose (as Caulfield alleged) without holding the mortgage and note or registering any mortgage assignment. The Federal judge's rulings made it impossible for Caulfield to prove that any of this conduct sank to the "extreme and outrageous" level necessary to prove an intentional infliction claim. See Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976). Thus Caulfield could not prove that the dismissal of that claim due to Martin's negligence proximately caused her actual harm.

Conclusion. The motion judge correctly allowed summary judgment in favor of Martin.

Judgment affirmed.

      The plaintiff's surname appears as "Caufield" on the Superior Court docket, but as "Caulfield" on her complaint and numerous other documents in the record. We spell the name as it appears on the complaint.

      The motion judge also relied in part on the denial of a preliminary injunction in the 2012 action. As we base our decision solely on the rulings in the 2014 action, we need not determine the effect, if any, of that earlier ruling.

      Martin's motion conceded causation in the sense that his negligence had caused the 2012 complaint to be dismissed; what his motion challenged was whether Caulfield could prove that the dismissal had in turn proximately caused her any damages. In this sense, in a legal malpractice action, issues of causation and damages may be "inextricably linked." Jacobs & Laurence, Professional Malpractice § 16.40 at 388 n.4 (2007 & Supp. 2017). We discuss them together herein.

      Caulfield's 2014 complaint alleged that her loan fell within the category of loans subject to § 35B.

      This is so notwithstanding that § 35B, having been enacted by St. 2012, c. 194, § 2, was not in effect at the time of the TPP process in 2009-2010.

      The 2012 complaint alleged that Caulfield's property was registered land.


text:
    Joseph H. THIBEAULT'S CASE.
    17-P-300
    Appeals Court of Massachusetts.
    Entered: June 20, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The insurer appeals from the Department of Industrial Accidents (DIA) reviewing board's summary affirmance of an administrative judge's decision ordering the insurer to pay for the employee's prescription pain medications. The sole issue before us is whether the administrative judge's decision was arbitrary, capricious, or an error of law. Concluding that it was not, we affirm.

Background. The employee, who was fifty-nine years old at the time of the administrative hearing, worked as a heavy equipment operator and welder for Moosehead Harvesting, Inc. On September 25, 2001, the employee injured his back while moving a steel plate in the course of his work. Thereafter, he received treatment from low back specialists, but declined surgery. On June 9, 2004, a lump-sum settlement was approved. The parties stipulated to the employee's diagnosis of "discogenic back pain; annular tear and disc bulge/for degenerative facet arthropathy at the L4-5 region."

Following settlement, the employee continued to seek and to receive medical treatment from his primary care physician, Harvey Lederman, who prescribed Percocet and Lidoderm patches for pain relating to his industrial injury. The employee experiences constant lower back pain, which his medication makes "tolerable." The employee picks up his prescriptions every twenty-eight days at Dr. Lederman's office. The employee has also signed a "narcotic contract which provides for random testing and pill counts. He has blood work done every couple of weeks or month at Dr. Lederman's lab."

On April 9, 2012, the employee filed a "postlump-sum claim for medical benefits" (i.e., a claim for payment of prescription pain medications). After the claim was denied, the employee submitted to an impartial medical examination pursuant to G. L. c. 152, § 11A, by Dr. Lawrence Field. Dr. Field issued a report and was deposed. He opined, in relevant part, that the employee "was experiencing chronic low back pain and that he did not require surgical intervention at the time of the exam"; that Dr. Lederman and the employee had settled on a medication regimen; that "there did not appear to be any major steps being taken to reduce the [e]mployee's dosage or to get him off the medications as prescribed"; that "it seems reasonable to continue [the employee] with the narcotic prescriptions that had been provided" by Dr. Lederman; and that "the continued treatment including the prescription pain medicine, the Lidoderm patch and Percocet were causally related to the original injury of September 25, 2001."

On September 20, 2013, an administrative judge held an evidentiary hearing on the employee's postlump-sum claim for medical benefits. She subsequently issued a written decision, and concluded that the employee is entitled to benefits under G. L. c. 152, §§ 13 and 30. Her decision stated, among other things, that the employee:

"continues to suffer pain and discomfort directly related to the September 25, [2001] industrial accident. The medication regimen he is on, while not the preferred protocol of Dr. Field, is reasonable and the need for the medications is related to the original industrial injury. I find [the employee] is entitled to have his prescription medications paid for by the Insurer."

The insurer appealed this decision to the reviewing board, which summarily affirmed the administrative judge's decision. This appeal ensued.

Discussion. We review to determine whether the administrative decision was factually warranted and not "[a]rbitrary or capricious, in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making within the particular requirements governing a workers' compensation dispute." Scheffler's Case, 419 Mass. 251, 258 (1994) (quotation omitted).

Here, the insurer claims that the administrative judge violated G. L. c. 152, § 30, by failing to consider the presumption of reasonableness afforded to the treatment guidelines (guidelines) promulgated by the DIA. We disagree. Initially, the transcript of the hearing reflects that the administrative judge referenced the guidelines. Viewed in light of the entire administrative record, it is clear that the administrative judge understood the insurer's argument that the treatment ordered by Dr. Lederman, and reviewed by Dr. Field, was arguably inconsistent with portions of the guidelines. However, after acknowledging the guidelines and, at a minimum, implicitly taking them into consideration, she chose to credit Dr. Field's conclusion that continued treatment, including the prescription pain medications, was reasonable. She did not violate G. L. c. 152, § 30, in making this determination. See 452 Code Mass. Regs. § 6.06 (2009).

As the insurer acknowledged at oral argument to this panel, although departure from the guidelines is presumptively unreasonable, the facts of a particular case may establish that a departure is reasonable. See, e.g., 452 Code Mass. Regs. § 6.06 (2009) ("The guidelines should not be construed as including all proper methods of care reasonably directed to obtaining the same results. The ultimate judgement regarding any specific procedure or treatment must be made by the provider in light of all circumstances presented by the injured employee"). Even assuming, arguendo, that there was a material departure from the guidelines in this case, the administrative judge's reasonableness determination was warranted based on the evidence. We emphasize that she credited both the employee's testimony, and Dr. Field's conclusions that (a) the medication regimen prescribed for the employee was reasonable, and (b) the medications are causally related to the industrial injury. Thus, although there is a measure of persuasiveness to the insurer's contention that preferable alternatives to prescription narcotic medications exist, we cannot say, on this record, that the administrative judge's decision was arbitrary, capricious, or contrary to law.

Decision of reviewing board affirmed.

      General Laws c. 152, § 30, as appearing in St. 1991, c. 398, § 53, provides, in relevant part:
      "The insurer shall furnish to an injured employee adequate and reasonable health care services, and medicines if needed .... [T]he commissioner shall promulgate regulations regarding the provision of adequate and reasonable health care services. In doing so, he shall utilize the treatment guidelines developed and endorsed under the provisions of section thirteen. Any provision of health care services in material compliance with such regulations shall be presumed to be adequate and reasonable. Any material departure from said regulations shall be presumed to be either an inadequate or unreasonable provision of health care services."

      At the hearing, the administrative judge explicitly recognized the insurer's argument that Dr. Field did not "take [into] sufficient enough account the guidelines as outlined by the [DIA]." However, she also recognized that Dr. Field "maintains that ... this is still an appropriate treatment." In response, the insurer stated, "It goes beyond the guidelines, Judge. It's the fact that the treatment that's being given to him is not the reasonable, adequate, necessary treatment for the employee."

      In contrast to its argument on appeal, the insurer's claim at the administrative hearing centered on the alleged absence of a causal relationship between the injury and the current need for the prescription medications. As the insurer stated, "The question is: [w]hether [the employee's] back pain at the present time necessitates medical treatment that's reasonable, necessary and related." We recognize, however, that there is overlap between these two arguments.


text:
    Denise MCGRATH, administratrix, v. Richard T. TAVARES & another.
    17-P-326
    Appeals Court of Massachusetts.
    Entered: June 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the estate of Anthony W. McGrath.

      Edwin F. Almeida.

   The plaintiff's sixteen year old son, Anthony W. McGrath, was tragically shot and killed after the defendants, police officers in the town of Plymouth, attempted to stop the vehicle he was driving on the streets of Plymouth in the early morning hours of January 10, 2006. The plaintiff filed suit in Federal court, asserting, insofar as relevant here, that the defendants had used excessive force in violation of the Fourth Amendment to the United States Constitution. The defendants obtained summary judgment, and on appeal that judgment was affirmed, on the ground that the conduct of the officer who fired the fatal shot was objectively reasonable and thus did not violate the Fourth Amendment. McGrath v. Tavares, 757 F.3d 20, 25-29 (1st Cir. 2014), cert. denied, 135 S. Ct. 1183 (2015). The plaintiff then filed this wrongful death action in Superior Court. On the defendants' motion, a judge dismissed the complaint for failure to state a claim on which relief could be granted, ruling that issue preclusion barred the plaintiff from proving her claims. The plaintiff appeals. We affirm.

Background. The unfortunate background facts are fully set forth in McGrath, 757 F.3d at 22-24, and need not be repeated here. For present purposes it suffices to reiterate the court's conclusion that in firing four shots, "Officer Tavares's use of deadly force was objectively reasonable because a reasonable officer in the same circumstances could have believed Anthony posed a threat of (at the very least) serious physical harm to his person when [Tavares] fired shots one and two, and an identical threat to Officer Almeida when [Tavares] fired shots three and four." Id. at 29. "As in other Fourth Amendment contexts ... the 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397 (1989). See McGrath, 757 F.3d at 25-26.

The plaintiff then filed this action; her second amended complaint advanced two wrongful death claims under G. L. c. 229, § 2(2). One count asserted that the defendants had engaged in "wanton or reckless" conduct, in "intentional disregard of the ... high degree of probability that substantial harm, or even death, would result." The other count asserted that the defendants had engaged in "intentional and wrongful misconduct" that was "intended to injure, harm and kill" Anthony. The defendants moved to dismiss on issue preclusion grounds, arguing that the Federal court determination of the objective reasonableness of their conduct meant that the plaintiff could not prevail on her wrongful death claims. The motion judge agreed.

Discussion. Issue preclusion. "Whether a Federal court judgment precludes a State-[law]-based action in the Commonwealth is a question governed by Federal common law." Alves v. Massachusetts State Police, 90 Mass. App. Ct. 822, 824 (2017). Under that law, "issue preclusion[ ] applies when: (1) the issue sought to be precluded in the later action is the same as that involved in the earlier action; (2) the issue was actually litigated; (3) the issue was determined by a valid and binding final judgment; and (4) the determination of the issue was essential to the judgment." Latin Am. Music Co. v. Media Power Group, Inc., 705 F.3d 34, 42 (1st Cir. 2013) (internal quotations omitted). See Alicea v. Commonwealth, 466 Mass. 228, 236 (2013) ; Alves, 90 Mass. App. Ct. at 825. Issue preclusion operates "even if the issue recurs in the context of a different claim." Alicea, 466 Mass. at 235, quoting from Taylor v. Sturgell, 553 U.S. 880, 892 (2008).

Here, the plaintiff does not contest that the Federal determination of the objective reasonableness of the defendants' conduct is entitled to preclusive effect in her State court action. Instead, she argues that that issue is irrelevant to her State wrongful death claims, which, she contends, turn on the defendants' subjective intent and motivation-issues that were not determined in the Federal litigation. We examine each of her wrongful death claims in light of this argument.

As to the claim asserting that the defendants engaged in wanton or reckless conduct, the judge observed that although recklessness may be proved on either subjective or objective theories, both theories require proof that a defendant acted or failed to act in circumstances creating a risk that was "an unreasonable one under the circumstances." Boyd v. National R.R. Passenger Corp., 446 Mass. 540, 546-547 (2006), quoting from Restatement (Second) of Torts § 500 comment a (1965). The judge concluded that the reasonableness of the risk of death posed by Tavares's conduct was previously determined in the Federal action and could not be relitigated here. Accordingly, the plaintiff could not succeed on her claim that the defendants had acted recklessly or wantonly.

On appeal, the plaintiff insists that her claim requires proof of the defendants' subjective motives and state of mind. But she fails to address the additional requirement stated in Boyd and relied upon by the judge: that, to prove reckless conduct, she must show that the defendants' conduct was unreasonable under the circumstances. She has not identified any error in the judge's reasoning, and we see none.

As to the claim asserting that the defendants engaged in intentional misconduct that was "intended to injure, harm and kill" Anthony, the judge concluded that the defendants had a valid claim of self-defense. The judge relied on the statement in Commonwealth v. King, 460 Mass. 80 (2011), that a claim of self-defense depends, in part, on whether "the degree of force used was reasonable in the circumstances." Id. at 83, quoting from Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369 (2004). Reasoning that self-defense "is assessed by the objective standard utilized by the [Federal court] in resolving [the plaintiff's] civil rights claim," the judge concluded that the preclusive effect of the Federal judgment defeated the plaintiff's ability to prove intentional wrongful death.

On appeal, the plaintiff's brief does not mention self-defense, let alone discuss its various elements. She does not acknowledge or address the judge's reasoning in any way. She merely insists that "an essential element of proof in [her] intentional wrongful death claims is evidence of the actors' subjective motives, intent, and state of mind." But even if such evidence is necessary to her case, she fails to make any argument as to how such evidence could be sufficient to overcome the fact-established in the Federal litigation-that the defendants' conduct was objectively reasonable. Issues not argued are waived. See New England Precision Grinding, Inc. v. Simply Surgical, LLC, 89 Mass. App. Ct. 176, 177 n.3 (2016), citing Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). As the plaintiff has identified no error in the judge's decision, we decline to disturb it.

Judgment affirmed.

      It is often the case that after Federal claims are resolved adversely to a party in Federal court, related State court claims are resolved adversely to that party by a dispositive motion based on issue preclusion. See, e.g., Fidler v. E.M. Parker Co., 394 Mass. 534, 535-536 (1985) ; Alicea, 466 Mass. at 229 ; Mancuso v. Kinchla, 60 Mass. App. Ct. 558, 559, 564-565 (2004) ; D.H.L. Assocs. v. Selectmen of Tyngsborough, 64 Mass. App. Ct. 254, 254-255 (2005) ; Alves, 90 Mass. App. Ct. at 824. Issue preclusion operates in State court whether the Federal action was resolved by a jury trial, see Mancuso, 60 Mass. App. Ct. at 560 ; a bench trial, see D.H.L. Assocs. v. O'Gorman, 199 F.3d 50, 53 (1st Cir. 1999), cert. denied, 529 U.S. 1110 (2000) ; or, as here, by summary judgment motion. See Fidler, 394 Mass. at 538-539 ; Alicea, 466 Mass. at 229 ; Alves, 90 Mass. App. Ct. at 824. The resolution of claims by summary judgment does not violate either Federal or State rights to a jury trial. See Fidelity & Deposit Co. v. United States, 187 U.S. 315, 320 (1902) ; Barber v. Kimbrell's, Inc., 577 F.2d 216, 221 (4th Cir. 1978) ; Heddendorf v. Commonwealth, 13 Mass. App. Ct. 584, 585 (1982).

      The motion judge did not separately address wantonness, nor have the parties on appeal argued that it requires any proof distinct from that required for recklessness. We therefore assume for present purposes that it does not. See Desmond v. Boston Elev.Ry. Co., 319 Mass. 13, 16 (1946) (treating terms as having same meaning in wrongful death statute); Boyd, 446 Mass. at 548 (referring to "the distinction between negligence and gross negligence, on the one hand, and wanton or reckless conduct on the other," quoting from Commonwealth v. Welansky, 316 Mass. 383, 400 [1944] ).

      The wrongful death statute, in allowing recovery for a death caused by "willful" conduct, G. L. c. 229, § 2(2), is broad enough to encompass recovery for a death caused "intentionally," even if that word does not appear in the statute. See, e.g., Desmond, 319 Mass. at 15-16 (noting, in wrongful death case, "absence of evidence of wilful conduct in the sense of conduct intended to do harm"); Gage v. Westfield, 26 Mass. App. Ct. 681, 691 (1988).


text:
    COMMONWEALTH v. Wayne FRANKLIN.
    17-P-724
    Appeals Court of Massachusetts.
    Entered: June 25, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of two counts of rape of a child in violation of G. L. c. 265, § 23. He now contends that the judge erred in denying his motion for a required finding of not guilty as to each count. He maintains there was insufficient evidence to allow a jury to conclude there was penetration, a required element of a rape conviction.

We review a decision on a required finding of not guilty to determine whether the evidence, when viewed in the light most favorable to the Commonwealth, was sufficient enough that " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' (emphasis in original)." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 433 U.S. 307, 318-319 (1979). Through that lens, we affirm.

Background. As we affirm the judge's ruling on sufficiency grounds, our recitation of the facts will focus on those facts that the jury could have reasonably relied on to support the convictions.

Though the offenses took place in 1992, the defendant was not indicted until 2009. The case proceeded to trial in 2015. In 1992, the victim was four years old and lived in an apartment with her mother, three siblings, and the defendant, who was the mother's boy friend. On the night of the rapes, the victim's older sister, Angela, was with a friend, Taryn, at a nearby park when they decided to spend the night at Angela's family's apartment. They went to the apartment to get Angela's mother's permission, and when they arrived the house was dark and quiet with the exception of the sound of the victim's crying coming from the bedroom the mother and the defendant shared.

Taryn, who stated that her memory of the night in question was "very vivid," testified that after they arrived at the apartment, they heard the victim crying and proceeded to the bedroom where she saw the defendant "laying over the bed with his back on the bed" and "his legs were off like onto the floor." The victim was "straddled over the top of him, and he was making her go up and down." "[H]er lower half was all in contact with" the defendant, who was naked and moaning, and the victim was crying. Angela and Taryn then left to get help, eventually calling the police and bringing the victim's mother home from a nearby bar. When they returned to the apartment, the victim was dressed in a nightgown and underwear, and a physical altercation took place between the defendant and the victim's mother. Police were called and spoke to those present, and the victim was brought to a hospital to be examined.

Evidence collection kits were administered on the victim at the hospital, which included a vaginal swab, a perianal swab, and an anorectal swab. , A later analysis, after advancements in deoxyribonucleic acid (DNA) testing, revealed a sperm fraction on the victim's anorectal swab that matched the defendant's DNA profile. The victim's medical records were also introduced in evidence, which pertinently noted that her vulva was "slightly red" and that she was experiencing pain in her pubic area, but otherwise showed no evidence of trauma or penetration. The victim's medical records include a question mark following a section inquiring whether penetration occurred and indicated that the examiner was "uncertain if ejaculation occurred."

At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty as to each count of rape. The judge deferred acting on it, without objection, until the close of the defendant's case. The defendant testified in his own defense and denied sexually assaulting the victim. After the defense rested, the motion for required findings of not guilty was denied.

Discussion. The defendant reasserts that the evidence was insufficient to establish that there was penetration, a necessary element for each rape conviction. As previously stated, in evaluating sufficiency, we view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, supra. We consider both direct evidence and "reasonable and possible" inferences from that evidence, so long as they are "not too remote in the ordinary course of events, or forbidden by any rule of law ...." Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 591 (2007). "While the inferences drawn must be reasonable, they 'need not be necessary or inescapable.' " Commonwealth v. Merry, 453 Mass. 653, 661 (2009), quoting from Commonwealth v. Grandison, 433 Mass. 135, 140-141 (2001).

"To prove the crime of rape of a child in violation of G. L. c. 265, § 23, the Commonwealth must prove beyond a reasonable doubt that the defendant engaged in (1) sexual intercourse or unnatural sexual intercourse with (2) a child under sixteen years of age." Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 533 (2012). "Unnatural sexual intercourse" with a child includes oral and anal sex, and proof of penetration is necessary to support any child rape conviction. See Commonwealth v. Gallant, 373 Mass. 577, 584 (1977).

Viewing the evidence in the light most favorable to the Commonwealth, as we must, we conclude there was sufficient evidence to support both convictions. While penetration is indeed a necessary element to support a child rape conviction, it may be proven with circumstantial evidence. See Commonwealth v. Fowler, 431 Mass. 30, 33 (2000). In fact, " 'intrusion into the vagina is not required to prove penetration; just a touching of the vulva or labia is sufficient' under [the] child rape statute." Commonwealth v. King, 445 Mass. 217, 223 (2005), cert. denied, 546 U.S. 1216 (2006), quoting from Commonwealth v. Gichel, 48 Mass. App. Ct. 206, 213 (1999). Here we conclude that the evidence of the child straddling the defendant while he was naked and moving her up and down, her crying during the act, the redness of her vulva, and her complaints of pubic pain were sufficient support for a rational trier of fact to find, beyond a reasonable doubt, that the victim had been vaginally raped. King, supra. Similarly, in the context of anal rape, penetration evidence can be circumstantial. Here, the semen found on the anorectal swab matching the defendant's DNA profile was sufficient for the jury to conclude that anal penetration had occurred. See Fowler, supra at 33-34 (presence of sperm in victim's mouth sufficient for jury to infer oral penetration); King, supra (evidence "of [victim] licking a penis" sufficient to establish oral penetration); Commonwealth v. Rodriguez, 76 Mass. App. Ct. 59, 62-63 (2009) (evidence of victim regaining consciousness to see "a penis in [her] face" coupled with defendant's admission of placing his penis "on" victim's mouth sufficient to infer oral penetration).

In short, the defense asks us to depart from the well-established principle that "[p]enetration can be inferred from circumstantial evidence" and require penetration be proven only by direct evidence. Fowler, supra at 33. We decline to do so. The defendant's motion for required findings of not guilty, therefore, was properly denied.

Judgments affirmed.

      The separate convictions stem from evidence of both vaginal and anal penetration arising from the same incident.

      Angela was fifteen or sixteen years old at the time in question, and Taryn was either thirteen or fourteen years old.

      Angela's testimony differed in this regard. She stated that she did not remember what she had seen in the bedroom and only could "remember taking [the victim] out of the room."

      A nurse testified that perianal swabs collect evidence by swabbing "around the anus, so on the outside surrounding area."

      Anorectal swabs collect evidence by inserting small swabs inside the anus.

      The nurse who testified to the contents of the victim's medical records understandably stated that she did not have a detailed independent memory of the examination from twenty-three years before. Instead, she reviewed the records, detailed the evidence collection kit's procedure, and stated that to the best of her memory, everything was done correctly and the exam was successfully completed.

      Expert witnesses called by the Commonwealth noted that DNA is transferrable, such that it is possible to transfer from one person to another without direct contact. One such means of secondary transfer is through bedding, and the bedding in this case was not preserved. The defense theorized that the sperm fraction was transferred from the bedding to the victim's anus, and subsequently picked up by the anorectal swab as it entered from the anus to the rectum. The jury were free to reject that theory, and it has no bearing on the defendant's sufficiency argument presently before us.


text:
    COMMONWEALTH v. Gerald PITMAN.
    17-P-743
    Appeals Court of Massachusetts.
    Entered: June 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a probation violation hearing in District Court, the defendant was found to be in violation of his probation for committing new criminal offenses, specifically, strangulation, assault and battery on a family/household member, and assault and battery by means of a dangerous weapon. In finding that a violation had occurred, the judge relied on a transcript of the testimony of the victim (also referred to as witness) from a related restraining order extension hearing. The defendant appeals from the order revoking his probation and committing him for the balance of his suspended sentence. We affirm.

Rule 7(b) of the District/Municipal Courts Rules for Probation Violation Proceedings (2015) allows a judge to rely, in whole or in part, on hearsay as evidence of a probation violation so long as it is found by the judge to be "substantially reliable." See Commonwealth v. Durling, 407 Mass. 108, 118-119 (1990). Here, the judge determined that the transcript of the victim's testimony was "substantially reliable," and found the defendant in violation of his probation. On appeal, the defendant does not challenge the reliability of the testimony, but only whether the failure to make a distinct finding of the witness's unavailability infringes on the defendant's right to confrontation under the United States Constitution or art. 12 of the Massachusetts Declaration of Rights. The defendant argues that because the witness was present in the court room during the probation violation hearing, the Commonwealth's failure to produce the victim for purposes of cross-examination deprived him of due process. We disagree.

"Although a probationer is entitled to the due process rights established in Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973), he need not receive the 'full panoply of constitutional protections applicable at a criminal trial.' " Commonwealth v. Bukin, 467 Mass. 516, 520 (2014), quoting from Durling, 407 Mass. at 112-113. Rather, for probation violation hearings, the Supreme Judicial Court has made it clear that "a showing that the proffered [hearsay] evidence bears substantial indicia of reliability and is substantially trustworthy is a showing of good cause obviating the need for confrontation." Durling, 407 Mass. at 118. The holding of Durling and its progeny makes clear that admissibility of hearsay testimony in a probation violation hearing depends solely on substantial reliability and there is no added requirement that the judge separately find the witness unavailable before allowing admission of her prior recorded testimony in evidence. See Commonwealth v. Calvo, 41 Mass. App. Ct. 903, 904 (1996). Where, as here, the judge did not abuse her discretion in determining that the hearsay evidence was substantially reliable, it was not necessary that she find the witness unavailable before relying on the hearsay for proof of the defendant's probation violation.

Order revoking probation affirmed.

      The defendant asserts that the victim was "within the courtroom" during the probation violation hearing. Nothing in the record supports this statement; however, the victim was within the court room as recently as one hour prior to the start of the probation violation hearing. For the reasons stated in this memorandum and order, we need not address whether this made the witness present or available.


text:
    Todd D. BROWN v. Priscilla A. CHRISTIE.
    17-P-149
    Appeals Court of Massachusetts.
    Entered: June 19, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In this appeal from a judgment on a complaint for modification entered by a judge of the Probate and Family Court on March 21, 2016, Priscilla A. Christie (mother), the former wife of Todd D. Brown (father), challenges the judge's reduction of the father's child support obligation. We affirm.

Background. Following a four-day trial, the judge made the following findings of fact. The parties divorced on March 26, 2001, pursuant to a judgment of divorce incorporating their separation agreement, which granted the mother sole physical custody of the parties' only child and required the father to pay weekly child support of $260. Since then, the father has filed three complaints for modification of his child support obligation, each alleging unemployment or employment related problems. A judgment on the father's first modification complaint reduced his child support obligation to $200 per week. After a hearing on the father's second modification complaint, at which the father did not appear, a judgment issued raising his child support obligation to $250 per week. At issue here is the father's third modification complaint where, after the trial, the judge entered a judgment reducing the father's weekly child support obligation to $100, with the proviso that the father pay $400 per month in additional child support "if, as and when" the father received alimony payments as a result of his divorce from his second wife, Kirsten Wagner. On appeal, the mother challenges the reduced child support amount, asserting that it was the result of several errors the judge made when determining the father's income and the reasons for his change in circumstances. We affirm.

Discussion. A judge must modify an existing child support order if there is an inconsistency between the amount of the existing order and the amount that would result from applying the child support guidelines (guidelines). See Morales v. Morales, 464 Mass. 507, 508 (2013) ; G. L. c. 208, § 28. See also Child Support Guidelines § III.A(1) (2013). A plaintiff is not required to prove a material change in circumstances subsequent to the prior order's issuance, but some change must be present for a proper child support modification request. See Morales, supra at 512 n.9. Here, in granting the father's request for modification of the existing child support order, the judge properly applied these standards, and in doing so, did not abuse his discretion.

The mother argues first that the judge failed to consider all of the father's income. Specifically, the mother contends that the judge failed to consider (1) the alimony owed to the father by Wagner, (2) in-kind income earned while the father worked for Wagner's psychiatry practice, and (3) "rent-deferred" housing the father's parents provided him. The record before us, and the judge's findings, show that the judge carefully considered all of this evidence. For example, the judge found that the judgment from the father's divorce from Wagner awarded him $700 in weekly alimony, but as of the modification trial, "said judgment and alimony obligation had been constantly litigated; subject to an [a]ppeal; and the subject of numerous contempts." Thus, the judge found that there was no evidence regarding whether Wagner paid the father that amount regularly. This finding supports the judge's decision to order the father to pay an additional $400 per month "if, as and when" he received alimony payments from Wagner.

In addition, the judge took note of the father's receipt of in-kind income from Wagner's business and the rent-free housing provided by his parents. As to any income the father received from Wagner's business, the judge appears not to have considered that matter in light of the father's divorce from Wagner, which ended his relationship with her business. Regarding the free housing provided by the father's parents, the judge found that at the time of trial, the father resided at his parents' home and was not paying rent, and that this partially justified the judge's upward deviation from the amount set out in the guidelines. There was no error.

The mother next argues-without support in the record-that the judge failed to explain his child support calculation. "[W]hile it is in the sound discretion of the judge to modify an existing child support order, when the modification involves a deviation from the guidelines, both the statute and the guidelines require that the judge explain the deviation in specific written findings." Wasson v. Wasson, 81 Mass. App. Ct. 574, 579 (2012). Here, the judge did so, explaining that he deviated upward from the amount calculated under the guidelines by approximately $50 per week primarily for two reasons. First, as noted above, the judge found that "[the father] is living rent free with his parents, who have helped him financially." Second, the judge concluded that, in addition to his part-time work for a State senator, "[the father] can work in other part-time jobs, such as delivering the Boston Globe or in a convenience store or liquor store, etc." These findings, the judge concluded, supported his decision to deviate upward from the guidelines.

Accordingly, the judge properly considered the evidence of the father's income, issued sufficient written findings detailing his analysis, and explained how he calculated the amount in the judgment. We discern no abuse of discretion.

Finally, the mother argues that the judge erred by failing to attribute income to the father because he voluntarily reduced his hours working for the State senator. In accordance with the guidelines, a judge should consider whether a party is "earning less than he or she could through reasonable effort," and can attribute income to a party instead of using that party's actual income. Child Support Guidelines § I.E. See Crowe v. Fong, 45 Mass. App. Ct. 673, 679-680 (1998). See also Flaherty v. Flaherty, 40 Mass. App. Ct. 289, 291 (1996) (for purposes of determining child support, "[t]he earning capacity rather than the actual income of a parent may be considered"). Here, the judge found that the father's reduction in work hours was not a deliberate attempt to evade his child support obligations, but instead was yet another example of the father's inability to succeed at anything more than menial employment. The evidence adduced at trial supports this finding. Furthermore, as noted above, by deviating upward from the presumptive child support order under the guidelines, the judge determined that the father's earning capacity is higher than his actual income, and attributed income to the father as a result. Again, we discern no error.

Judgment affirmed.

      Shortly after the father filed his third modification complaint, a judge entered a temporary order reducing the child support amount to $95 per week.

      The mother argues that the judge improperly relied on the father's "incompetence" in maintaining steady employment as the material change in circumstances supporting the modification, instead of relying on the reasons the father gave in his complaint. This argument mischaracterizes the judge's rationale. As the judge explained, the father's "incompetence" prevented him from maintaining gainful employment in anything above a "menial" job. This went to one of the father's reasons listed in his complaint: his decrease in income. Furthermore, the judge fully explored the father's ability to work and his earning capacity. The judge was well within his discretion to conform his rationale to the evidence in the record. See Mass.R.Dom.Rel.P. 15(b).

      To monitor these payments, the judge also ordered the father to provide the mother with regular accountings of the alimony he received.

      Under the applicable guidelines, "[c]ontributions from a household member are not expressly included in the guidelines' expansive definition of 'income.' However, the 'catch-all' provision allows a judge to consider 'any other form of income or compensation not specifically itemized' in the guidelines." Fehrm-Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525, 529 n.7 (2016), quoting from Child Support Guidelines § I.A(28).

      It is evident from the judge's findings that he largely accepted the income and calculations set forth on the father's child support guidelines "worksheet A."

      To the extent that we have not addressed the mother's other arguments here, "they have not been overlooked. We find nothing in them that requires discussion." Strawbridge v. Bank of N.Y. Mellon, 91 Mass. App. Ct. 827, 834 (2017), quoting from Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004).


text:
    COMMONWEALTH v. George A. OTERO.
    17-P-586
    Appeals Court of Massachusetts.
    Entered: June 18, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant, George Otero, was convicted of operating under the influence of alcohol (OUI) and in a jury-waived trial was convicted of OUI, fourth offense. On appeal, the defendant challenges the sufficiency of the OUI and the subsequent offense portion of the conviction. We affirm.

Background. The jury could have found the following facts on the OUI portion of the charge. On August 14, 2015, at 11:30 P.M. , State police troopers James Foley and Jason Lambert observed a large pickup truck, towing a trailer, stopped in traffic and obstructing the right travel lane. When the troopers approached the vehicle, Foley observed that the defendant was "slumped forward" in the driver's seat with his head down and that the vehicle was still running. Foley tapped on the window and the defendant sat up. Foley instructed the defendant to pull to the side of the road several times before he complied. Foley asked the defendant where he was going. The defendant answered that he was both coming from and going to Woburn. Foley observed that the defendant appeared disheveled, had "glassy bloodshot eyes," smelled of alcohol, was unsteady on his feet, and that his speech was slurred. He used the guardrail on the side of the highway to maintain his balance. The defendant was placed under arrest. During the ten-minute drive to the State police barracks in Medford, the defendant fell asleep. During the ride, the odor of alcohol was so strong that the trooper had to open a window to get some air in the cruiser.

The judge could have found the following facts on the subsequent offense portion of the charge. The defendant was twice convicted of driving under the influence (DUI) in New Hampshire in 1993 and 1998. The certified records from New Hampshire bore the defendant's name and date of birth. The defendant was also convicted of OUI in the Somerville District Court in 1997, as reflected by a certified copy of the docket. In addition, the Commonwealth presented evidence of the defendant's Massachusetts Registry of Motor Vehicles (RMV) record, which indicated the defendant's name, date of birth, and also that he had two prior DUI convictions in New Hampshire in 1993 and 1998. The Commonwealth also presented evidence of the defendant's New Hampshire Department of Safety Division of Motor Vehicles (DMV) record, which bore the defendant's name and date of birth, as well as the 1993 and 1998 DUI convictions.

Discussion. 1. Sufficiency of evidence of the OUI. We review the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable." Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133 (2018), quoting from Commonwealth v. Waller, 90 Mass. App. Ct. 295 (2016). The Commonwealth is required to "prove that the defendant (1) physically operated a vehicle; (2) 'on a public way or place to which the public has a right of access; and (3)... was impaired by the influence of intoxicating liquor.' " Faherty, supra at 133-134, quoting from Commonwealth v. AdonSoto, 475 Mass. 497, 509 (2016). The defendant only challenges the third element.

The defendant's pickup truck was stopped in a travel lane of Interstate 93 in heavy traffic. He was slumped over the wheel and the truck was still running. In addition, the defendant was confused as to his whereabouts; had glassy, bloodshot eyes; his speech was slurred; he was unsteady on his feet; he smelled of alcohol; and when he was transported to the barracks, he fell asleep while handcuffed. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393 (2017). The evidence of the defendant's intoxication was sufficient.

2. Sufficiency of evidence of the prior convictions. The defendant contends that the two New Hampshire dockets contained limited identifying information such that the evidence was insufficient to convict him of a fourth offense OUI. "The sufficiency of docket sheets as evidence of prior convictions is well settled in the Commonwealth." Commonwealth v. Jewett, 471 Mass. 624, 636 (2015). See G. L. c. 90 § 24(4 ). While docket sheets containing the defendant's name alone are insufficient to show that the convictions are those of the defendant, documents which contain "more identifying information than merely the offender's name" can be sufficient to prove prior convictions. Commonwealth v. Gonsalves, 74 Mass. App. Ct. 910, 912 (2009). See also Commonwealth v. Maloney, 447 Mass. 577, 589 (2006) (prior conviction record must be linked to the defendant).

The New Hampshire docket sheets indicate that George Otero, with the same date of birth as this defendant, was convicted of DUI in 1993 and 1998. See Jewett, supra at 637. The name and date of birth also matched the information on the defendant's RMV records. The New Hampshire DMV records contained the same name and date of birth of the defendant, as well as his height. All of this data matched the information on the defendant's Massachusetts RMV license image and demographic information. Finally, the address listed on the defendant's New Hampshire DMV records is the same as the mailing address listed on his Massachusetts RMV records. See Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 547 (2008). Thus, the evidence was sufficient for the judge to find beyond a reasonable doubt that the defendant was the same George Otero who had previously been convicted on three occasions. See Maloney, supra at 602.

Judgment affirmed.

      The parties stipulated that New Hampshire Division of Motor Vehicles destroyed all original paper copies of convictions prior to the year 2006.

      The defendant contends that the Commonwealth must prove that he drove erratically. To the contrary, "the Commonwealth need not prove that the defendant actually drove in an unsafe or erratic manner." Commonwealth v. Connolly, 394 Mass. 169, 173 (1985).

      The New Hampshire DMV records list a height of seventy inches; the Massachusetts RMV records list a height of five feet, eleven inches.


text:
    COMMONWEALTH v. Marcus MUNIZ.
    17-P-747
    Appeals Court of Massachusetts.
    Entered: June 18, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury-waived trial, the defendant was convicted of two counts of armed assault with intent to murder ( G. L. c. 265, § 18 [b ] ), two counts of assault by means of a dangerous weapon ( G. L. c. 265, § 15B [b ] ), one count of unlawfully carrying a firearm ( G. L. c. 269, § 10 [a ] ), and one count of unlawful possession of a loaded firearm ( G. L. c. 269, § 10 [n ] ). His motion for a new trial was denied. On appeal, the defendant challenges (1) the sufficiency of the evidence that he possessed a "firearm" within the meaning of G. L. c. 140, § 121, (2) the failure of the trial judge to redact portions of a recording of a 911 call during which the anonymous caller stated that others in the neighborhood were afraid to call the police, and (3) the admission of statements, elicited by trial counsel on cross-examination, that the witness knew what the defendant was "involved with." We affirm.

Background. Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the trial judge could have found the following facts. In August, 2014, Kennie Mota Cruz (Kennie); his brother, Christian Mota Cruz (Christian); Kennie's girl friend, Deborah Diaz; and Christian's girl friend, Janiya Adams Ingram, went to a cellular telephone store in Worcester, seeking to repair Ingram's telephone screen. At the store, the group encountered three men-the defendant, Jonathan Beeman, and a third man-with whom they were already familiar. During the encounter, Kennie heard one of the three men make a derogatory comment, and became enraged. A verbal altercation followed, during which the defendant held his waistband, revealing a silver gun, and warned Kennie, "You don't want it. You don't want it."

Eventually, Kennie left the store along with Christian, Diaz, and Ingram. Kennie picked up a stick with nails in it as the group walked down McKinley Road. The defendant drove an SUV past the group. Beeman and the third man were also in the vehicle. After passing, the defendant turned the SUV around at the top of the street, paused for a moment, and drove back towards the group. The driver's side window was rolled down, and the defendant held a silver revolver, which was approximately six inches in length. The defendant aimed the gun at Kennie and Christian, exclaimed "[b]itch-ass nigga," and fired. Members of the group heard a loud sound they later described as a gunshot. Kennie saw smoke emitting from the gun's barrel. The group ducked to the ground. No one was injured, and no cartridge casings were recovered from the scene; an officer testified that this was consistent with the fact that a revolver does not eject spent casings. A witness, who lived near the scene of the incident and was familiar with the sound of gunshots, confirmed that she heard a gunshot.

Two days after the shooting, a Worcester police detective recognized the defendant as matching the description of the perpetrator of the shooting. When the detective asked the defendant his name, he responded falsely that he was "Luis Castro." When the detective asked to speak with him further, the defendant fled but eventually was arrested.

1. Sufficiency of the evidence of a firearm. Under G. L. c. 140, § 121, a "firearm" is (i) a weapon, (ii) capable of discharging a shot or bullet, and (iii) equipped with a barrel less than sixteen inches long. See Commonwealth v. Nieves, 43 Mass. App. Ct. 1, 2 (1997). The Commonwealth's burden in proving that a weapon is a firearm "is not a heavy one." Ibid. To meet its burden, the Commonwealth may rely on witness testimony, even where "there was no gun found, no casings or bullets recovered, no ballistics evidence, and no expert testimony." Commonwealth v. Housewright, 470 Mass. 665, 680 (2015).

Here, the evidence was sufficient to establish that the defendant possessed a loaded, six-inch-long silver revolver that, when the defendant fired it, emitted both smoke and a loud sound identified as a gunshot by several witnesses, including one who specifically testified that she was familiar with the sound of gunshots. See ibid. (evidence that defendant "loaded and then fired a weapon that looked like a gun, sounded like a gun, and flashed like a gun" was sufficient to establish carrying of "firearm" even where weapon was not introduced at trial). The defendant also threatened Kennie with the revolver by displaying it at his waistband during their confrontation and stating, "You don't want it. You don't want it." He then drove past Kennie following the argument, turned around, rolled down his window, and shot in the direction of Kennie and Christian. See Commonwealth v. Tuitt, 393 Mass. 801, 810 (1985) (assessment of sufficiency of "firearm" evidence included testimony that defendant threatened victim with gun, stating, "[d]on't get killed over anybody else's money"). Together, this evidence was sufficient to warrant the trial judge's conclusion that the defendant's weapon was capable of discharging a bullet and thus constituted a firearm under G. L. c. 140, § 121.

2. 911 call. At trial, the sole basis that trial counsel provided for excluding the 911 call was a lack of reliability. On appeal, the defendant raises a new argument-namely, that portions of the recording should have been redacted, sua sponte by the trial judge, to exclude statements by the caller that others in the area feared calling the police. Because no such request or objection was raised by trial counsel, the defendant and Commonwealth agree that our review is limited to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Dargon, 457 Mass. 387, 397 (2010).

Here, assuming arguendo that there was an error, there was no such risk. In a jury-waived trial, we presume that the judge was not unduly swayed by the introduction of improper evidence, especially where (as here) the supposed improper evidence was insignificant in the context of the trial as a whole. See Commonwealth v. Murungu, 450 Mass. 441, 448 (2008).

3. Testimony referencing prior bad acts. The defendant maintains that during cross-examination, trial counsel elicited from Kennie evidence concerning prior bad acts of the defendant. Specifically, Kennie testified that he did not associate with the defendant in school because he knew what the defendant was "involved with" and that he grabbed a stick (after the verbal altercation in the store) because of this involvement. No objection was raised at trial, so our review is to determine whether any error raised a substantial risk of a miscarriage of justice. Commonwealth v. Sholley, 432 Mass. 721, 732 (2000).

To begin, it is not clear that Kennie's testimony concerned prior bad acts by the defendant. His reference to the defendant's prior involvement was vague and obscure. Assuming arguendo that this was prior bad act evidence, its admission did not result in a substantial risk of a miscarriage of justice. As with the 911 call, we assume that the trial judge considered this evidence only for its proper purpose. See Murungu, 450 Mass. at 448. Further, any possibility that the judge was improperly influenced was exceedingly unlikely due to the ambiguous nature of the testimony.

Judgments affirmed.

Order denying motion for new trial affirmed.

      Prior to trial, the Commonwealth agreed to the dismissal, as duplicative, of one count of armed assault with intent to murder. Following the trial, the Commonwealth agreed to the dismissal of one count of unlawful possession of ammunition as duplicative. The trial judge acquitted the defendant of two counts of armed assault with intent to murder and two counts of assault by means of a dangerous weapon.

      Because they share the same surname, we will refer to the brothers by their first names.


text:
    COMMONWEALTH v. Tyvon Karl WILLIAMS.
    17-P-1272
    Appeals Court of Massachusetts.
    Entered: June 18, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the denial of his motion to suppress a firearm that was found in his shoe after he was arrested for punching a police officer who had unlawfully pat frisked him. We affirm.

Background. We summarize the motion judge's findings of fact, with minor supplementation from uncontested testimony, noting that his findings are supported by the evidence, which he found credible. See Commonwealth v. Sparks, 433 Mass. 654, 656 (2001). At approximately, 8:30 P.M. on April 18, 2016, Worcester police officers Brian Piskator, Peter Roberge, and Thomas Barney, each a member of the city's gang unit, were in an unmarked vehicle, patrolling near Washington Square. Piskator saw what he believed, based on his training and experience, to be a drug transaction between occupants of a vehicle and several pedestrians. He turned his vehicle around to investigate, but by the time he returned to the location of the suspected drug deal, the suspects were gone.

As the officers continued past the location, they came upon three individuals, one of whom was the defendant; another was a known gang member. The officers initially suspected these individuals might be related to the drug transaction. The officers, who were armed and wore Kevlar vests labelled "Police," exited the vehicle and began to approach the three individuals. Piskator was aware of recent heightened gang violence in the area.

Although the officers had no reason to believe that any of the three were involved in the aforementioned gang violence and had determined by then that the three were not involved in the suspected drug deal, the officers pat frisked the three individuals, finding nothing. Piskator, who had pat frisked the defendant, then ordered the defendant to remove his shoes because, based on his training and experience, he knew that weapons could be hidden in shoes. The defendant complied, kicking his shoes off and pushing them towards the officer. As Piskator bent to look into the shoes, the defendant punched him in the face and attempted to run away. Piskator grabbed him with the assistance of the other two officers. After a struggle, Piskator used his taser device on the defendant, and he was arrested. Following the arrest, Roberge searched the defendant's shoes. Inside one of the shoes was a small silver loaded firearm.

The defendant moved to suppress the firearm. After an evidentiary hearing, during which the motion judge heard live testimony from Piskator and Roberge, he denied the motion.

Discussion. Absent clear error, we adopt the factual findings of the motion judge; however, we "independently determine the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007). The Commonwealth has the "burden to demonstrate that the police officers' stop and frisk of the defendant was within constitutional limits." Ibid.

1. Unconstitutional patfrisk. We begin by identifying the moment that the defendant was seized-that is, the moment when, in light of all of the circumstances surrounding an incident, a reasonable person in that situation would not feel free to leave. Commonwealth v. Stoute, 422 Mass. 782, 786 (1996). Here, we agree with the motion judge that the defendant was seized when Piskator pat frisked him. Commonwealth v. Martin, 457 Mass. 14, 18 (2010). We also agree, as the Commonwealth concedes on appeal, that this seizure was not justified by reasonable suspicion that the defendant was committing, had committed, or was about to commit a crime. Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). Prior to the time that the officers pat frisked the defendant, the officers already had determined that he was not involved in the suspected drug transaction. The only other reasons given for the patfrisk of the defendant were that he was with a known gang member and there was heightened concern about retaliatory violence after a recent uptick in gang related activity in the city. Notably, the officers had no basis to believe that the defendant had been involved in this uptick of gang violence. See Commonwealth v. Narcisse, 457 Mass. 1, 12-13 (2010) ; United States v. Gray, 213 F.3d 998, 1001 (8th Cir. 2000). Thus, there was inadequate evidence of reasonable suspicion warranting a seizure and patfrisk. The patfrisk was therefore unconstitutional, as was the escalation of the search when Piskator asked the defendant to remove his shoes. Commonwealth v. Borges, 395 Mass. 788, 794 (1985). Had the search of his shoe gone forward at that time, the firearm found in his shoe would have been suppressed. See, e.g., ibid.

2. Attenuation doctrine. Here, however, the defendant punched Piskator as the officer turned toward the shoes to search them. The question becomes whether punching the officer was an intervening act that gave rise to probable cause to arrest the defendant for assault and battery on a police officer such that the search of the defendant's shoes was permissible (despite the prior unconstitutional patfrisk) as incident to the arrest. Chimel v. California, 395 U.S. 752, 755-756 (1969) ; Commonwealth v. Bowden, 379 Mass. 472, 477 (1980).

Relying on Commonwealth v. Martin, supra, the defendant contends that because the officers had decided to search the defendant's shoes before he punched Piskator, the firearm is the fruit of the poisonous tree and must be suppressed even though the subsequent arrest of the defendant was proper. 457 Mass. at 22. In Martin, an officer engaged in an investigatory field encounter of the defendant, determined that the defendant was not the person for whom he had an arrest warrant, and nonetheless informed the defendant that he was going to conduct a patfrisk. The defendant pushed the officer's hands away and objected to the search; in response, the officer told the defendant to "calm down" and proceeded with the patfrisk, which revealed a loaded gun. Id. at 22-23. The Supreme Judicial Court rejected the Commonwealth's argument that the defendant's pushing of the officer's hand away was an intervening act that attenuated the taint of the prior unconstitutional search, reasoning that the officer's renewed effort to pat frisk the defendant was not based, even in part, on the assault. Ibid. See Borges, 395 Mass. at 797 (officer's decision to search defendant was in no part based on defendant's flight). The court cautioned, however, that had the officers arrested the defendant for the assault, the result may have been different, noting that "[a]n illegal seizure does not render the seized individual immune from arrest regardless of his postseizure conduct." Martin, 457 Mass. at 23 n.9.

Unlike the pushing of the officer's hand in Martin, here, the defendant's punching of Piskator caused the officers to arrest him. Indeed, while Piskator was the one who attempted to search the defendant prior to being assaulted, it was Roberge who searched the shoes after the arrest. Unlike in Martin, here, the assault was an intervening criminal act of the defendant that, at least in part, formed the basis for the subsequent search of the shoes incident to that arrest. See, e.g., Commonwealth v. King, 389 Mass. 233, 245-246 (1983) ; Commonwealth v. Holmes, 34 Mass. App. Ct. 916, 918 (1993).

Order denying motion to suppress affirmed.

      A single justice of the Supreme Judicial Court allowed the defendant's application for leave to pursue an interlocutory appeal.

      Police officers may approach individuals and ask to question them without having to justify the encounter; however, adequate constitutional justification is required to escalate a consensual encounter into a seizure. Commonwealth v. Lyles, 453 Mass. 811, 814-815 (2009) ; Commonwealth v. Martin, 457 Mass. 14, 19 n.7 (2016).

      The evidence also failed to satisfy the second prong of the Terry v. Ohio, 392 U.S. 1 (1968), analysis-namely, that the defendant was "armed and dangerous," id. at 25, as required to justify the patfrisk that occurred here. Commonwealth v. Narcisse, 457 Mass. 1, 9 (2010) ("[P]olice officers may not escalate a consensual encounter into a protective frisk absent a reasonable suspicion that an individual has committed, is committing, or is about to commit a criminal offense and is armed and dangerous").


text:
    COMMONWEALTH v. Paul JOHNSON.
    16-P-1224
    Appeals Court of Massachusetts.
    Entered: June 18, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Paul Johnson, appeals from convictions after a jury-waived trial in the Superior Court of three counts of indecent assault and battery on a child, G. L. c. 265, § 13B, arising out of his molestation of his ten year old niece. Concluding that the judge could believe the victim's testimony and that the prosecutor did not misstate the victim's grandmother's testimony, we affirm.

1. Sufficiency of the evidence. When reviewing the denial of a motion for a required finding of not guilty, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable.' " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707, 713 (2014).

The victim testified that, when she was ten years old, the defendant approached her while she was sleeping on a couch at her grandmother's house where she was living at the time. He touched her buttocks, first with his hands and then with his penis. He then touched her vagina with his hands and his penis. Finally, "the tip of [his penis] went in [her] vagina." The victim testified that, the next day, the defendant entered her bedroom. Again, he touched her buttocks with his hands. He then touched her buttocks with his penis "and wiggled it."

The victim's testimony described at least three separate indecent assault and batteries by the defendant. See Commonwealth v. Lawrence, 68 Mass. App. Ct. 103, 104 (2007) ; Commonwealth v. Coates, 89 Mass. App. Ct. 728, 729-730 (2016). The defendant's argument that the victim's testimony cannot support the convictions because it is not credible fails because, "when resolving issues of sufficiency of the evidence, we resolve all issues of credibility in favor of the Commonwealth." Commonwealth v. Sutherland, 93 Mass. App. Ct. 65, 71 (2018). Although there were some inconsistencies in the victim's testimony, "inconsistencies in the testimony of the witnesses[ ] ... go[ ] to the credibility of the witnesses and do[ ] not affect the sufficiency of the evidence." Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 185 (1991).

Similarly unavailing is the defendant's argument that the victim's testimony must be discredited because "she did not yell or scream." Massachusetts courts have rejected "the traditional, albeit outdated, notion that a true victim of sexual assault should raise a 'hue and cry.' " Commonwealth v. Asenjo, 477 Mass. 599, 603 (2017). Moreover, even that outdated notion would have had doubtful application to a child being assaulted by her uncle.

2. Closing argument. "A prosecutor may not misstate evidence or refer to facts not in evidence in a closing argument." Commonwealth v. Goddard, 476 Mass. 443, 449 (2017). Because there was no objection, the defendant's claim regarding the closing argument is waived, and we consider only whether, if we find error, there was a substantial risk of a miscarriage of justice. See Commonwealth v. Rivera, 91 Mass. App. Ct. 796, 801 (2017). Furthermore, because this was a bench trial, "[i]t is entirely reasonable to assume that the trial judge realized that [any misstatements by] the prosecutor[ ] ... did not have evidentiary value." Commonwealth v. Martinez, 67 Mass. App. Ct. 788, 796 (2006).

When asked by the prosecutor whether the defendant was living in her home in 2012, the victim's grandmother testified, "He used to visit my daughter [his wife] at my house but he never lived at my house." Later, when asked by the prosecutor whether her daughter (the defendant's wife) was living with her in 2012, the victim's grandmother stated, "She was staying with me at the time, yes.... [The defendant] was staying at his sister's at the time." The victim, by contrast, testified that the defendant lived in her grandmother's house at the time of the assaults.

In closing argument, the prosecutor argued that the victim's version made sense, because a married couple would be expected to live together. She acknowledged that the grandmother "said he never stayed there," but argued that this testimony made no sense.

The defendant argues that the prosecutor misstated the grandmother's testimony. The prosecutor's argument, however, was based on a fair construction of the grandmother's testimony. The grandmother's testimony that the defendant never lived at her house and stayed at his sister's house could fairly be interpreted as asserting that the defendant never stayed at her house. See Commonwealth v. Vasquez, 478 Mass. 443, 451 (2017), quoting from Commonwealth v. Grimshaw, 412 Mass. 505, 510 (1992) ("In closing argument, counsel may argue the evidence and the fair inferences which can be drawn from the evidence"). That the grandmother's testimony could also be fairly interpreted in other ways does not show misconduct, as each party is allowed to marshal the evidence in its favor. See Commonwealth v. Rakes, 478 Mass. 22, 45 (2017).

Judgments affirmed.

      Indeed, the evidence appeared to provide sufficient evidence of rape. See Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 567 (2015) ("The element of penetration can be established by evidence that the defendant's penis touched or came into contact with the victim's vagina, vulva, or labia").

      The defendant's wife and sister similarly testified that the defendant (and not his wife) lived with his sister in 2012. The sister testified that, approximately every other weekend, the defendant would sleep with his wife at the victim's grandmother's house. The wife testified that when she was living with her mother in 2012, the defendant "used to come over to the house from time to time." The victim described the assaults as occurring during the week.


text:
    Elnora M. MILES v. Quentin K. MILES.
    17-P-556
    Appeals Court of Massachusetts.
    Entered: June 18, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The former husband (husband), appeals from a contempt judgment arising from the former wife's (wife's) complaint alleging the husband failed to comply with numerous financial aspects of the divorce judgment. After a hearing at which both the husband and the wife testified, the judge found that on January 26, 2016, a divorce nisi entered pursuant to a separation agreement that the judge found to be fair and reasonable. The judge then recounted the numerous provisions of the separation agreement with which he found the husband had failed to comply. He concluded that the husband had clearly disobeyed clear and unequivocal orders and found him in contempt. In addition, the judge specifically rejected the husband's contention that the separation agreement had been altered to include provisions to which he had not agreed.

On appeal, the husband argues that (1) the judge's finding of contempt was erroneous because the husband had submitted substantial evidence that he had complied with what he believed to be the divorce judgment; (2) the proceedings were unfair and the judge was biased; and (3) the Probate and Family Court lacked jurisdiction due to improper service by the wife, thereby violating his due process rights.

We first note that the husband has not provided a transcript of the contempt proceedings below. "It is the obligation of the appellant[ ] to include in the appendix those [materials] which are essential for review of the issues raised on appeal." Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992). Without the benefit of the entire record before us, our review for any claim of error is generally barred. See M.M. v. D.A., 79 Mass. App. Ct. 197, 207 (2011) (by failing to provide appellate court with complete transcripts, appellant cannot argue judge's ruling is unsupported by evidence). See also Mass.R.A.P. 8(b)(1), as amended, 430 Mass. 1601 (1999). In addition, we are not bound to look beyond the record appendix. Kunen v. First Agric. Natl. Bank of Berkshire County, 6 Mass. App. Ct. 684, 690-691 (1978).

Having reviewed the limited record before us, we find nothing to support the husband's assertion that the wife's counsel perpetrated a fraud on the court by submitting to the judge a different version of the separation agreement. Conspicuously, as noted by the judge, the husband did not file any motions for relief from the divorce judgment. Accordingly, that judgment remains in effect, and the husband does not appear to dispute that he did not comply with many of its provisions, only arguing that he complied with two temporary orders requiring him to pay certain monies to the wife (which were not the basis for her contempt complaint). We are equally unable to evaluate the husband's contention of bias on the judge's part, which appears to be based on nothing more than the husband's displeasure with the judge's adverse rulings. Finally, the husband's claim of a due process violation is unavailing where the judge's finding that the husband was properly served does not appear to be clearly erroneous and where, in any event, he had notice of the proceedings and was given an opportunity to be heard.

Judgment affirmed.

      The only transcript submitted by the husband appears to concern a pretrial hearing on various motions filed by the husband. It contains the testimony of only one witness: a process server, and relates to the husband's argument that he was never properly served with the contempt complaint. The judge made a factual finding to the contrary on the record of that hearing.


text:
    Palermo ALICEA v. Maureen ATKINS.
    17-P-1084
    Appeals Court of Massachusetts.
    Entered: June 25, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      In her official and individual capacities.

   The plaintiff, an inmate at the Massachusetts Correctional Institution at Norfolk (MCI-Norfolk), filed suit under 42 U.S.C. § 1983 against the health services administrator of MCI-Norfolk, claiming that she failed to take appropriate action to remedy the plaintiff's complaint of itchiness caused by his prison-issue blanket. After a Superior Court judge construed the complaint to be seeking judicial review of the denial of an inmate grievance, see G. L. c. 127, § 38H, the defendant filed the administrative record, and the parties cross-moved for judgment on the pleadings. A different judge then held a hearing on the motions, after which she ordered that judgment enter for the defendant. The plaintiff appeals.

We review inmate grievance appeals under the standards set out in G. L. c. 30A, § 14(7). See G. L. c. 127, § 38H ; Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 131-132 (2013). To obtain relief under that statute, the party appealing an agency decision must show that his "substantial rights" have been prejudiced because the decision is in violation of constitutional provisions, legally erroneous, made on unlawful procedure, unsupported by substantial evidence, arbitrary or capricious, or an abuse of discretion. G. L. c. 30A, § 14(7), as appearing in St. 1973, c. 1114, § 3. The plaintiff failed to meet this burden.

The gist of the plaintiff's complaint is that the defendant acted with deliberate indifference to his serious medical needs by denying his request for a "medical blanket" to alleviate the itching allegedly caused by his prison-issue blanket. In her decision denying the request, the defendant advised the plaintiff that "[t]here are no medical blankets," that "[a]ll the state issued blankets are polyester," and that she "do[es] not have control over the blankets," which "is a [Department of Correction] issue." The defendant further advised, "If you develop a skin condition, please submit a sick slip for evaluation and treatment." The plaintiff appealed to the grievance appeals coordinator, who issued a decision confirming that the plaintiff would "need to address [his] complaint concerning blankets with the [Department of Correction]" and "encourag[ing] [him] to follow" the defendant's advice "to submit a sick call slip ... if needed."

These facts do not establish that the defendant violated the plaintiff's substantial rights. The defendant was responsive to the plaintiff's grievance, informing him that the blankets were controlled by the Department of Correction and advising him to submit a sick call slip. We see nothing in the record suggesting that the defendant's decision was contrary to law, based on insufficient evidence or improper procedure, or otherwise arbitrary or capricious or an abuse of discretion. Thus, no ground exists to permit us "to set aside or modify the decision." G. L. c. 30A, § 14(7), as appearing in St. 1973, c. 1114, § 3.

For similar reasons, to the extent the plaintiff is pressing his claim under 42 U.S.C. § 1983, he failed to allege sufficient facts to establish that the defendant was deliberately indifferent to his serious medical needs. To prove deliberate indifference, the plaintiff would have to show that the defendant's decision constituted "an unnecessary and wanton infliction of pain," "repugnant to the conscience of mankind." Estelle v. Gamble, 429 U.S. 97, 105-106 (1976). See Langton v. Commissioner of Correction, 34 Mass. App. Ct. 564, 573 (1993) ; Torraco v. Maloney, 923 F.2d 231, 235 (1st Cir. 1991) ; DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir. 1991). Even accepting the allegations of the complaint as true, the plaintiff has no plausible claim that the defendant acted with culpability rising to this level.

Judgment affirmed.

      Because the defendant does not argue the issues, we do not decide whether the plaintiff's claims are timely under G. L. c. 127, § 38H, or whether he has named the proper defendant.

      The plaintiff alleges in his complaint that he later submitted a sick call slip asking to be tested for allergies, but the defendant "deliberately ignored" his request. The administrative record does not support his allegation, however; it contains no indication of what transpired after the plaintiff submitted the sick call slip.