author: BUDD, J.

text:
    COMMONWEALTH v. Phap BUTH.
    SJC-11126
    Supreme Judicial Court of Massachusetts, Essex..
    Argued March 9, 2018. Decided July 17, 2018.
    John H. Cunha, Jr., Boston (Charles Allan Hope, Boston, also present) for the defendant.
    Catherine L. Semel, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Gaziano, Budd, & Kafker, JJ.
   BUDD, J.

A jury in the Superior Court convicted the defendant, Phap Buth, on two indictments charging murder in the first degree for the shooting deaths of Amy Dumas and her father, Robert Finnerty. Both murder indictments were based on a theory of joint venture felony-murder, with armed home invasion as the predicate offense. On appeal, the defendant argues that, because there was insufficient evidence to show that he knew that his companions were armed, his convictions must be overturned. He also claims that the merger doctrine prevents his convictions and that the felony-murder doctrine should be abolished. We affirm and decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E.

Background. We summarize the facts the jury could have found, reserving certain details for discussion of the issues.

1. The crime. Robert and Judith Finnerty lived with their sixteen year old daughter, Amy Dumas, in Lynn. After suffering a stroke, Robert was partially paralyzed and unable to work. Judith left her full-time job to care for Robert, and began selling marijuana to family, friends, and "people that [she] knew" to earn money.

Shortly after 11 P.M. on May 16, 2005, the defendant knocked at the Finnertys' door, seeking to purchase marijuana. Although Judith had sold marijuana to the defendant on other occasions, she informed him that she no longer sold it, but would "do it this one time." The defendant entered the apartment, purchased a bag of marijuana, and left.

Within seconds, the defendant returned to the Finnertys' door and knocked again. Judith opened the door partway to speak to the defendant, who asked to purchase additional marijuana. When she refused, he swung open her door and stepped back out of the way, making room for two other individuals wearing black clothes, black gloves, and ski masks to enter. As Judith ran toward her husband to protect him, she fell to the floor. When she looked up, she saw the assailants standing with guns in their hands. She began screaming for help. Robert raised his walker to defend himself and was shot once in the chest. Dumas came running out of her bedroom and was shot twice in the back.

The intruders fled after shooting the victims, and Judith ran to the door to yell for help. She saw the defendant standing at the end of the driveway, looking back and forth. When the defendant saw Judith, he "smirk[ed]." Law enforcement soon arrived at the scene; Robert and Dumas were pronounced dead a short time later.

2. The investigation. A neighbor telephoned 911, alerting law enforcement to the crimes. Based on the information that Judith related to one of the officers, other officers canvassed the neighborhood, looking for an individual matching the defendant's description, as well as the two assailants in black.

Within fifteen minutes of a broadcast description of the defendant, police located him approximately one-quarter mile from the Finnertys' apartment, and Judith identified him as the unmasked perpetrator. Nearby, police also located Pytou Heang and Chon Son, the two individuals who were identified as the armed assailants.

Pytou Heang was outside an apartment building blocks away from the crime scene, and Chon Son was in the stairwell of that building. On the building's third-floor landing, police recovered a baseball hat, two firearms, gloves, and a bandana.

Discussion. The defendant raises three claims of error: first, that there was insufficient evidence to support his convictions; second, that the merger doctrine precludes his convictions; and third, that the felony-murder doctrine is unconstitutional. We address each in turn.

1. Sufficiency of evidence. In order for a jury to find a defendant guilty of joint venture felony-murder with armed home invasion as the predicate felony, the Commonwealth is required to establish beyond a reasonable doubt that the defendant participated in committing armed home invasion as a joint venturer and that the victims were killed in furtherance of that crime. See, e.g., Commonwealth v. Tejeda, 473 Mass. 269, 272-273, 41 N.E.3d 721 (2015). To prove a joint venture, the Commonwealth is required to show that the defendant knowingly participated in the commission of the crime charged with the intent required for the offense. Commonwealth v. Kilburn, 426 Mass. 31, 34, 686 N.E.2d 961 (1997).

The defendant focuses our attention on the sufficiency of the evidence of his participation in the armed home invasion as a joint venturer. To succeed in a claim of insufficient evidence, the defendant must show that, viewing the evidence in the light most favorable to the Commonwealth, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). Where, as here, an element of the offense is that the perpetrator is armed, the Commonwealth must prove that the defendant knew that at least one coventurer was armed. See G. L. c. 265, § 18C ; Tejeda, 473 Mass. at 280, 41 N.E.3d 721. The defendant contends that evidence that he was aware that his coventurers were armed before they entered the apartment is impermissibly thin. We disagree.

At trial, the Commonwealth presented evidence that the defendant knew his coventurers had access to firearms. One witness testified that, during a visit to the witness's apartment on the weekend prior to the shooting, Pytou Heang spoke of robbing a drug dealer in the defendant's presence. The witness further testified that Pytou Heang made a gesture with his hand in his pocket as if he had a gun, prompting the witness to respond, "[I]f you got a gun, get out of my house."

In addition, the jury heard testimony that the defendant knew the victims were drug dealers. Thus, the jury were permitted to infer that the defendant knew his coventurers would need weapons to "overcome victim resistance." Commonwealth v. Quinones, 78 Mass. App. Ct. 215, 219, 936 N.E.2d 436 (2010). Accord Commonwealth v. Rakes, 478 Mass. 22, 33, 82 N.E.3d 403 (2017) (sufficient evidence of defendant's knowledge of coventurers' weapons existed where, inter alia, defendant knew victims were drug dealers).

Finally, even assuming that the defendant was initially unaware that his coventurers had firearms, the Commonwealth presented evidence that the defendant continued to participate in the joint venture even after shots were fired by acting as a lookout. When Judith opened her door to call for help, she saw the defendant standing at the end of her driveway, looking back and forth; when the defendant saw Judith, he "smirk[ed]." Where a defendant continues to act in furtherance of the joint venture even after learning of a coventurer's weapon, we have allowed an inference that the coventurer had the requisite intent for the joint venture. See, e.g., Rakes, 478 Mass. at 33, 82 N.E.3d 403 ("Even if the defendant had been unaware that [his coventurer] possessed a weapon in advance, it would be reasonable to conclude that he became aware over the course of the robbery and continued to participate, implicating him in the joint venture"); Commonwealth v. Semedo, 422 Mass. 716, 719, 665 N.E.2d 638 (1996).

Although this is a close case, and, separately, each piece of evidence might not have been sufficient, taken as a whole the evidence supports the convictions. Rakes, 478 Mass. at 32, 82 N.E.3d 403 (when reviewing sufficiency of evidence, we "view[ ] the evidence in the light most favorable to the prosecution" and "draw all reasonable inferences in favor of the Commonwealth").

2. Merger. The defendant claims that the judge erred by failing to instruct the jury on the merger doctrine of felony-murder. According to the merger doctrine, a defendant can only be convicted of felony-murder if he or she committed or attempted to commit a felony that is independent of the conduct necessary to cause the victim's death, because the felony that caused the death "merges" with the killing and cannot be the predicate offense. Commonwealth v. Fredette, 480 Mass. 75, 101 N.E.3d 277 (2018), citing Commonwealth v. Holley, 478 Mass. 508, 519, 87 N.E.3d 77 (2017). To prove that the defendant was guilty of armed home invasion, the Commonwealth's burden was to prove beyond a reasonable doubt that the defendant

"(1) entered the dwelling of another, (2) knowing, or having reason to know, that one or more persons were present within the dwelling house when he entered or remained in it; (3) was armed with a dangerous weapon at the time of entry; and (4) used force or threatened the imminent use of force on any person within the dwelling house, or intentionally caused injury to any such person."

Commonwealth v. Sullivan, 478 Mass. 369, 373-374, 85 N.E.3d 934 (2017). As armed home invasion includes as an element the use of force, the threatened imminent use of force, or causing injury to a person within a dwelling, Commonwealth v. Doucette, 430 Mass. 461, 465-466, 720 N.E.2d 806 (1999), the offense merges with a death that occurs as a result unless the jury find beyond a reasonable doubt that the crime consisted of conduct "separate and distinct from the conduct necessary to kill the victim." Fredette, 480 Mass. at ----, 101 N.E.3d 277. Accord Commonwealth v. Stokes, 460 Mass. 311, 314 n.8, 315, 951 N.E.2d 48 (2011) ; Commonwealth v. Bell, 460 Mass. 294, 300-301, 951 N.E.2d 35 (2011).

It was error for the judge not to instruct the jury on this point, because the jury were unaware that they were required to find the defendant guilty of a felony distinct from the killing violence. As the defendant did not object at trial, we look to whether that error caused a substantial likelihood of a miscarriage of justice. See Commonwealth v. Tavares, 471 Mass. 430, 436-437, 30 N.E.3d 91 (2015). We therefore consider the impact of the error on the trial. See Commonwealth v. Gunter, 427 Mass. 259, 274, 692 N.E.2d 515 (1998).

In cases where the defendant challenges the lack of merger instructions, if the "jury could have found beyond a reasonable doubt" that the defendant, through his or her coventurers, committed at least one unmerged life felony, then the error did not create a substantial likelihood of a miscarriage of justice. Gunter, 427 Mass. at 274, 692 N.E.2d 515. See Commonwealth v. Kilburn, 438 Mass. 356, 360, 780 N.E.2d 1237 (2003). We therefore consider whether the Commonwealth presented evidence of an unmerged life felony, i.e., a felony that could have served as a predicate felony for the defendant's convictions of felony-murder in the first degree. See Kilburn, supra at 359, 780 N.E.2d 1237 ; Gunter, supra at 273-274, 692 N.E.2d 515. See also Commonwealth v. Garcia, 470 Mass. 24, 38, 18 N.E.3d 654 (2014) (for felony-murder in first degree, predicate felony must be punishable by life imprisonment).

Here, the jury could have found beyond a reasonable doubt that the defendant committed an act of armed home invasion against Judith, even though there was no separate indictment for that crime naming her as a victim: "the felony on which a charge of felony-murder is premised may be uncharged, so long as the evidence supports it." Stokes, 460 Mass. at 315, 951 N.E.2d 48. See Gunter, 427 Mass. at 274, 692 N.E.2d 515 (irrelevant that defendant was not separately indicted for unmerged felonies). Because the armed home invasion statute includes as an element the use of force or threat of force, see Sullivan, 478 Mass. at 373-374, 85 N.E.3d 934, the threat of force against an occupant of the premises satisfies that element of the crime. Accordingly, an armed home invasion against Judith is a separate, distinct, and unmerged felony for purposes of the felony-murder doctrine.

See Commonwealth v. Gorassi, 432 Mass. 244, 247, 733 N.E.2d 106 (2000) ("an assault may be accomplished ... by putting another in fear of an immediately threatened battery").

The Commonwealth presented overwhelming evidence of an act of armed home invasion against Judith. When Judith opened her door, two masked assailants armed with guns pushed their way into her home. She tried to flee, falling over in the process, before beginning to scream. She later realized that she had involuntarily urinated during the attack. Given this evidence of a separate felony against Judith, the judge's failure to instruct the jury concerning the merger doctrine did not give rise to a substantial likelihood of a miscarriage of justice. See Gunter, 427 Mass. at 274, 692 N.E.2d 515.

3. Constitutionality of felony-murder. The defendant also argues that we should abolish the doctrine of felony-murder entirely. In other words, the defendant seeks the benefit of our holding in Commonwealth v. Brown, 477 Mass. 805, 825, 81 N.E.3d 1173 (2017) (Gants, C.J., concurring), in which we limited felony-murder to its statutory role as an aggravating element by holding that "a defendant may not be convicted of murder without proof of one of the three prongs of malice." Id. at 807-808, 81 N.E.3d 1173. In Brown, however, we also held that the new rule was prospective only. Id. at 807, 81 N.E.3d 1173. We decline to depart from that holding.

4. Review under G. L. c. 278, § 33E. Finally, the defendant asks us to exercise our extraordinary power under G. L. c. 278, § 33E. After reviewing the briefs and the entire record, we discern no reason to exercise our power under § 33E.

Judgments affirmed.

Order denying motion for a new trial affirmed.

      Although the defendant also appeals from the denial of his motion for a new trial, his appellate brief states that he is no longer pursuing the argument he raised in that motion.

      Because Robert and Judith Finnerty share a last name, we refer to them by their first names.

      Pytou Heang was convicted on two indictments charging murder in the first degree and one indictment each charging armed home invasion and unlawfully carrying a firearm. Commonwealth v. Pytou Heang, 458 Mass. 827, 828, 942 N.E.2d 927 (2011). Chon Son pleaded guilty on two indictments charging murder in the second degree and one indictment each charging armed home invasion and carrying a firearm without a license. Id. at 830 n.8, 942 N.E.2d 927.

      At trial, the judge instructed the jury that to prove a defendant guilty of a joint venture, the Commonwealth had to show that the defendant (1) was "physically present at the scene of the crime," (2) had "knowledge that another intended to commit the crime," and (3) had "agreed to participate in the crime." In Commonwealth v. Zanetti, 454 Mass. 449, 455, 910 N.E.2d 869 (2009), we articulated a modified test for joint venture intended to provide clearer guidance. See Commonwealth v. Miranda, 474 Mass. 1008, 1008-1009, 49 N.E.3d 675 (2016).

      This specific claim was raised during the charge conference rather than in connection with his motions for a required finding of not guilty. We have said that a generally phrased motion for a required finding of not guilty in a murder case is inadequate to preserve a claim for insufficiency of the evidence where enough evidence supports the conviction under an alternate theory. See Commonwealth v. Berry, 431 Mass. 326, 331, 727 N.E.2d 517 (2000). Here, however, the defendant identified his motion as one focusing on the joint venture theory, and no other theory supported a conviction of murder. Thus, we conclude that the claim of error was preserved.

      The witness testified with the assistance of an interpreter, and his testimony was, at times, difficult to follow. He appeared to contradict himself about whether the defendant was in the living room for the exchange about the gun. He began by testifying that the defendant was in the room, before saying that "[the defendant] was in and out of my room. I don't know whether he's in the living room or not." When the prosecutor followed up by asking again whether the defendant was in the room, the witness said, "Yes. [The defendant] there too."
      When we review convictions for sufficiency of the evidence, "[i]t does not matter that some of the evidence could be characterized as equivocal or contradictory." Commonwealth v. Cove, 427 Mass. 474, 475, 693 N.E.2d 1385 (1998), quoting Commonwealth v. James, 424 Mass. 770, 785, 678 N.E.2d 1170 (1997). We have specifically held that "[t]he fact that [a witness's] testimony was inconsistent and contradictory does not render the evidence insufficient." Commonwealth v. Fitzgerald, 376 Mass. 402, 410, 381 N.E.2d 123 (1978). Here, as the witness testified that the defendant was in the room to hear the statement about the gun, the jury heard evidence that allowed them to conclude that the defendant knew his coventurer likely had access to a firearm.

      The defendant argues that, as the intended victims were a teenaged girl, her incapacitated father, and her unarmed mother, this is not a situation in which the jury could infer that the defendant would expect that his coventurers would be armed based on an anticipated need to overcome victim resistance. However, the victims' physical characteristics equally support an inference that they themselves would be armed. Cf. Commonwealth v. Netto, 438 Mass. 686, 703, 783 N.E.2d 439 (2003).

      The defendant did not object to the lack of a merger instruction, or even engage with the judge on the issue when the judge raised it sua sponte. The judge did not have the benefit of Commonwealth v. Bell, 460 Mass. 294, 300, 951 N.E.2d 35 (2011), in which we held that claims of merger where the predicate felony is armed home invasion depend upon the specific facts of the case.

      We reject the defendant's assertion that the judge told the jury that the Commonwealth was not alleging any felony beyond the use of force that killed the two victims. The judge actually instructed that "the Commonwealth is claiming that there was the exercise of force against Robert Finnerty and Amy Dumas." The judge did not instruct the jury not to consider any other acts of violence. Indeed he repeatedly instructed the jury on alternate elements of armed home invasion: use or threat of force.

      The indictment did not name a victim.


source: Caselaw Access Project

author: DESMOND, J.

license: Public Domain

text:
    Maria MARTINEZ v. Frances MARTINEZ-CINTRON.
    No. 17-P-1056.
    Appeals Court of Massachusetts, Worcester..
    Argued March 2, 2018 Decided May 3, 2018
    Jeffrey Sakol for the mother.
    Present: Maldonado, Blake, & Desmond, JJ.
   DESMOND, J.

In this interlocutory appeal from the order denying Frances Martinez-Cintron's (mother's) motion to dismiss her child's paternal grandmother's petition for grandparent visitation, we are faced with the question whether Blixt v. Blixt, 437 Mass. 649, 774 N.E.2d 1052 (2002), requires a judge to dismiss an inadequate petition for grandparent visitation pursuant to G. L. c. 119, § 39D. We conclude that it does and therefore reverse the order.

Background. We briefly summarize the facts found by the judge. The mother and James Taylor-Martinez (father) were divorced in December, 2016, pursuant to a judgment of divorce nisi, when their lone child was approximately six months old. The mother was awarded sole legal and physical custody of their child, and the father had supervised visitation. Shortly after the divorce nisi, the child's paternal grandmother, Maria Martinez (grandmother), filed in the Probate and Family Court a petition for grandparent visitation supported by a handwritten affidavit. On that petition, the grandmother checked the box that indicates that she is not alleging that there is "a significant relationship between the grandparent(s) and the child(ren) but that nonetheless it is in the best interest of the minor child(ren) that petitioner(s) be granted visitation with the child(ren)." Her accompanying affidavit did not provide any support for the proposition that it would be in the child's best interest that she be granted visitation rights. Instead, the grandmother's affidavit merely states that she is the child's grandmother, that she and the father have only seen the child in the hospital after he was born, that she wants to "be able to see him on a weekly basis," and that the mother will not let her and the father see the child.

The mother initially did not oppose the grandmother's petition, stating that she (the mother) would allow the grandmother to visit the child so long as the visits took place in Winchendon, where the mother resides. After obtaining counsel, however, the mother moved for leave to file an amended answer and subsequently moved to dismiss the grandmother's petition pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). In denying the mother's motion to dismiss, the judge relied on the following passage from Blixt, 437 Mass. at 666, 774 N.E.2d 1052 :

"[b]efore a parent or parents are called upon to litigate fully a grandparent visitation complaint, with all the attendant stress and expense, the grandparent or grandparents should make an initial showing that satisfies a judge that the burden of proof, set forth above, can be met. To this end, any complaint filed under the statute should be detailed and verified or be accompanied by a detailed and verified affidavit setting out the factual basis relied on by the plaintiffs to justify relief. A complaint not so verified, or one accompanied by an inadequate affidavit, would be subject to dismissal (or summary judgment) on motion by the defendant or defendants." (Emphasis supplied by the judge.)

This passage, the judge reasoned, indicates that Blixt subjects the grandmother's inadequate petition to dismissal, but does not require it, and the judge, quoting Blixt, supra at 665 n.24, 774 N.E.2d 1052, therefore allowed the grandmother "the opportunity to produce evidence that circumstances are severe enough to warrant a court's review of the parent's decision to deny visitation." The judge made further note of the mother's apparent willingness to maintain contact with the father's family, citing her original answer to the petition and her openness to the father's grandmother serving as one of the supervisors of the father's visitation.

The mother petitioned for interlocutory relief in this court pursuant to G. L. c. 231, § 118, seeking review of the order denying her motion to dismiss. A single justice of this court ordered the judge to issue written findings and conclusions, yet lacked the authority to order the relief requested upon receipt of those written findings and conclusions. See Mass.R.A.P. 15(c), 365 Mass. 859 (1974). Instead, the single justice granted the mother leave to file an interlocutory appeal.

The question before us now is, in light of Blixt, whether a judge must allow a parent's motion to dismiss a grandparent's petition for visitation when the petition does not sufficiently allege why visitation is necessary to protect the child from significant harm. We conclude that Blixt does impose such a requirement, and consequently we reverse the order denying the motion to dismiss and order the petition dismissed.

Discussion. We review the order de novo. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676, 940 N.E.2d 413 (2011). To survive a rule 12(b)(6) motion to dismiss, a pleading must include "factual 'allegations plausibly suggesting (not merely consistent with)' an entitlement to relief." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Allegations, therefore, "must be enough to raise a right to relief above the speculative level." Id. at 555, 127 S.Ct. 1955.

The Blixt court laid out the pleading requirements for a grandparent seeking visitation under G. L. c. 119, § 39D. Emphasizing the presumption that parents act in the best interest of their children, the court stated that grandparents must rebut that presumption by establishing that denying visitation is contrary to the best interest of the child. Blixt, 437 Mass. at 658, 774 N.E.2d 1052. "More specifically, to succeed, the grandparents must allege and prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child's health, safety, or welfare." Ibid. In situations like the one before us where a grandparent does not assert "a significant preexisting relationship" with the grandchild, "the grandparent must prove that visitation between grandparent and child is nevertheless necessary to protect the child from significant harm." Ibid.

We have already addressed the heightened pleading standard imposed by Blixt in Sher v. Desmond, 70 Mass. App. Ct. 270, 874 N.E.2d 408 (2007), a case decided prior to Iannacchino. In Sher, supra at 278-279, 874 N.E.2d 408, we noted that Blixt placed a higher burden on a grandparent seeking visitation than was required under the then-existing notice pleading standard. Accordingly, to survive a rule 12(b)(6) motion, a Blixt affidavit must contain "averments of significant harm that are (1) facially sufficient to rebut the presumption of parental fitness; (2) based on information and belief; and (3) made with particularity and indicating the source of the information." Sher, supra at 281, 874 N.E.2d 408.

We now take the opportunity to reemphasize the pleading requirements under Blixt, particularly with the benefit of guidance from Iannacchino. In the present case, the judge erred in her interpretation of Blixt, and we conclude that Blixt, when read in conjunction with the rule 12(b)(6) standard, required the judge to allow the mother's motion to dismiss. While we are sympathetic to the grandmother's efforts to establish a relationship with her grandchild, we are similarly mindful that, absent a showing to the contrary, we presume a fit parent will act in her child's best interest. "The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). See Adoption of Vito, 431 Mass. 550, 562-563, 728 N.E.2d 292 (2000) ; Blixt, supra ; Adoption of Ilona, 459 Mass. 53, 64-65, 944 N.E.2d 115 (2011). With that presumption in mind, we further emphasize the need to protect parents from unnecessary litigation and "all the attendant stress and expense" that comes with it. Blixt, supra at 666, 774 N.E.2d 1052. Without proper cause, a parent's ability to make choices for her children is not to be intruded on.

We consider the pleading requirements presented in Blixt to be clear: "any complaint filed under the statute should be detailed and verified or be accompanied by a detailed and verified affidavit setting out the factual basis relied on by the plaintiffs to justify relief." Ibid. In denying the motion to dismiss, the judge noted that "the Court is unable to determine with certainty that the Grandmother is entitled to no relief under any state of facts which could be proved in support of the claim." While we understand the judge's emphasis on the court's use in Blixt of the word "should," which has long been recognized to mean recommended rather than mandatory, we consider her decision to be in conflict with the directive of Blixt. See Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202, 207, 581 N.E.2d 475 (1991) ("the word 'should' ... is merely advisory rather than mandatory language"). Absent some extreme circumstance, the proper consideration is whether the grandmother made adequate factual allegations to plausibly suggest, beyond mere speculation, "that visitation between grandparent and child is ... necessary to protect the child from significant harm." Blixt, supra at 658, 774 N.E.2d 1052. The grandmother's affidavit in no way indicated that a failure to order visitation would subject the child to any harm, much less significant harm.

Conclusion. The order denying the mother's motion to dismiss is reversed, and the petition shall be dismissed, with prejudice.

So ordered.

      The judge's reasoning is as follows:
      "In light of the Mother's initial Answer wherein she stated she 'will allow grandparent's visitation' under the reasonable condition that the visits take place in Winchendon, coupled with the Mother's request at the time of the divorce hearing that paternal great-grandmother act as one of two supervisors during the Father's parenting time, the Court finds that a pre-trial conference is necessary [i]n order to afford the Grandmother reasonable time to produce evidence that grandparent visitation is in the child's best interests, pursuant to the requirements set out in the Blixt case."


author: DITKOFF, J.

text:
    CENTRAL CEILINGS, INC. v. SUFFOLK CONSTRUCTION COMPANY, INC., & others.
    17-P-184
    Appeals Court of Massachusetts, Suffolk..
    Argued January 10, 2018 Decided May 9, 2018
    Paul R. Mordarski, Boston, (Margaret Capp also present) for the plaintiff.
    Joel Lewin, Boston, (John P. Connelly, Boston, also present) for the defendants.
    Present: Blake, Neyman, & Ditkoff, JJ.

      Fidelity and Deposit Company of Maryland, Safeco Insurance Company of America, and XL Specialty Insurance Company.

   DITKOFF, J.

The parties submitted a construction dispute, pending in litigation in the Superior Court, to arbitration under the Uniform Arbitration Act, G. L. c. 251, §§ 1 et seq. The arbitrator issued a substantial award in favor of the plaintiff, Central Ceilings, Inc., but purported to reserve the calculation of preaward interest to a Superior Court judge. The parties did not agree to this reservation. On the plaintiff's motion to confirm the arbitration award, the judge (remanding judge) remanded the matter to the arbitrator for the calculation of preaward interest. After the arbitrator awarded preaward interest well below that requested by the plaintiff, the plaintiff moved to correct or to vacate that award. The plaintiff now appeals from the order denying that motion. Concluding that an arbitrator may not reserve the calculation of preaward interest for a judge without the agreement of the parties, and finding no error in the failure to award attorney's fees, we affirm.

1. Background. The plaintiff was a subcontractor to defendant Suffolk Construction Company, Inc. (Suffolk), the general contractor, in a project for the renovation and construction converting the old Charles Street jail in Boston into the Liberty Hotel. On January 31, 2008, the plaintiff commenced an action in Superior Court against the defendants, raising various claims arising out of its subcontract with Suffolk. After discovery and pretrial proceedings, the parties filed a joint motion to stay the case in favor of resolving the dispute through arbitration. On October 8, 2013, the parties entered into an arbitration agreement governed by the Uniform Arbitration Act, G. L. c. 251, §§ 1 et seq., expressly incorporating the Construction Industry Arbitration Rules of the American Arbitration Association. The arbitration agreement reached "all relevant issues appertaining" to the civil lawsuit and granted the arbitrator "full power and authority to award money damages and to grant such other relief, including without limitation reasonable attorney's fees and any other contractually authorized damages as he, in his sole discretion, shall deem just and proper" "[t]o the same extent as if he were a justice of the Massachusetts Superior Court." A judge allowed the motion and stayed the case during the pendency of the arbitration.

After extensive arbitration proceedings, the arbitrator issued an initial award on the merits in favor of the plaintiff in a decision dated February 20, 2015, in the amount of $1,324,819.24, "with interest thereon in the amount ultimately assessed by the Court," plus attorney's fees and costs as set out in the subcontract between the parties.

The parties filed timely cross motions with the arbitrator requesting modification, correction, and clarification of the initial award. The arbitrator denied the defendants' motion and allowed the plaintiff's motion. The modified award, dated April 6, 2015, changed the award only to require an additional interest calculation. It continued to reserve the task of calculating interest on the $1,324,819.24 award to a judge, but also required that judge to calculate interest on a payment of $402,852 already made by Suffolk shortly after the parties agreed to arbitration and prior to any award.

On April 15, 2015, the defendants moved in Superior Court to vacate the arbitrator's award. The defendants soon reconsidered, paid the modified award plus postaward interest on June 24, 2015, and then withdrew their motion to vacate. Meanwhile, the parties were unable to agree on the attorney's fees and costs owed to the plaintiff. The arbitrator awarded attorney's fees and costs on July 20, 2015, which Suffolk paid within one month.

The parties, however, continued to dispute the issue of preaward (as opposed to postaward) interest, as neither the initial nor the modified award expressly stated that the interest to be calculated by a judge included preaward interest. The plaintiff maintained that the arbitrator either explicitly or implicitly awarded preaward interest from the commencement of the suit at the statutory rate of twelve percent, see G. L. c. 231, § 6C, and that the judge had the duty to calculate that interest. The defendants, in turn, asserted that only the arbitrator could calculate preaward interest.

On October 26, 2015, the plaintiff moved to confirm the modified award under G. L. c. 251, §§ 11, 14, 15, and to enter judgment against the defendants for the disputed preaward interest in the amount of $1,563,763.58 plus an additional $500.46 for every day after September 16 to the date of judgment. The defendants, conversely, asserted that the preaward interest had been submitted to the arbitrator and thus no additional preaward recovery was permissible.

After a hearing, the remanding judge concluded that, although the arbitrator implicitly awarded preaward interest, the lack of any explicit agreement between the parties on the issue precluded its reservation for a judge. Accordingly, the remanding judge remanded the matter to the arbitrator pursuant to G. L. c. 251, §§ 9, 13, for the calculation of preaward interest.

On remand, the arbitrator explained that he had "mistakenly believed" that he lacked the authority to calculate the preaward interest. The arbitrator acceded to the remanding judge's order and issued a postremand clarification dated August 9, 2016. The arbitrator awarded the plaintiff $287,036 in preaward interest, declining to adopt the statutory interest rate under G. L. c. 231, § 6C. Citing his broad discretion on the matter, the arbitrator instead considered "various factors" of the underlying dispute to award a "fair and equitable" amount based on the "totality of circumstances." Suffolk promptly paid that amount.

In response, on September 26, 2016, the plaintiff moved under G. L. c. 251, §§ 12, 13, to "correct" the arbitrator's postremand award to $1,462,600, based on the twelve percent interest rate in G. L. c. 231, § 6C, and additionally to award the plaintiff supplemental attorney's fees and costs for the postarbitration court proceedings. The defendants opposed the motion, contending that (1) the plaintiff's motion was untimely; (2) the arbitrator did not exceed his authority; and (3) the plaintiff was not entitled to further attorney's fees and costs because the defendants were the "prevailing party" in the postremand litigation. A third Superior Court judge denied the plaintiff's motion, citing the reasons set forth in the defendants' opposition.

2. Remand to the arbitrator to calculate preaward interest. We review de novo a judge's decision on a motion to confirm an arbitration award under G. L. c. 251, § 11, Bolman v. Plymouth Rock Assur. Corp., 82 Mass. App. Ct. 135, 142, 971 N.E.2d 300 (2012), recognizing "that 'the entitlement of a party to preaward interest is a decision that is within the purview of the arbitrator[ ].' " Id. at 139, 971 N.E.2d 300, quoting from Connecticut Valley Sanitary Waste Disposal, Inc. v. Zielinski, 436 Mass. 263, 271, 763 N.E.2d 1080 (2002). "Generally, in a proceeding to confirm an arbitration award, a judge may not alter an arbitrator's decision that allows, denies or fails to mention pre award interest." Talty, Talty, & Braunstein, Methods of Practice § 38.20 (4th ed. supp. 2017), quoting from Bolman, supra. If the award is simply silent as to preaward interest, the confirming court lacks the authority to add preaward interest. Reilly v. Metropolitan Property & Liab. Ins. Co., 412 Mass. 1006, 1007, 588 N.E.2d 628 (1992), citing Sansone v. Metropolitan Property & Liab. Ins. Co., 30 Mass. App. Ct. 660, 662-663, 572 N.E.2d 588 (1991).

The calculation of preaward interest, however, may properly be reserved for a confirming court in certain conditions. Talty, Talty, & Braunstein, supra, citing Bolman, 82 Mass. App. Ct. at 140-141, 971 N.E.2d 300. Specifically, in Bolman, supra at 141, 971 N.E.2d 300, we decided that the issue of preaward interest may be properly reserved for the confirming court where "the reservation unambiguously was agreed to by the parties and the arbitrator." Here, there is no suggestion in the record that the parties agreed to this reservation. Both the arbitration agreement and the parties' own conduct, in fact, demonstrate the opposite. The arbitration agreement was broad enough to include the calculation of preaward interest within the arbitrator's authority, and in no way expressly reserved the issue for the confirming court. The plaintiff, moreover, specifically requested that the arbitrator calculate a sum certain award of preaward interest, and the defendants took the position in the Superior Court that they agreed for only the arbitrator to calculate preaward interest.

We reject the suggestion that an arbitrator may reserve the calculation of preaward interest to a confirming court without the agreement of the parties. It is a "fundamental principle that the arbitrator's authority is defined by the parties' arbitration agreement." Lynn v. Council 93, Am. Fedn. of State, County, & Mun. Employees, Local 193, 51 Mass. App. Ct. 905, 905, 746 N.E.2d 558 (2001). See Bolman, 82 Mass. App. Ct. at 141, 971 N.E.2d 300 ("the issue of preaward interest properly was reserved because the reservation unambiguously was agreed to by the parties and the arbitrator"). Cf. Perlin & Blum, Procedural Forms Annotated § 116:1 (6th ed. supp. 2017), citing Sansone, 30 Mass. App. Ct. at 662-663, 572 N.E.2d 588 ("In the absence of an explicit agreement to the contrary, pre-award damage claims, including interest must be considered to have been submitted to arbitration"). Moreover, when agreed to by the parties, there is a "strong public policy favoring arbitration as an expeditious alternative to litigation for settling commercial disputes." Massachusetts Hy. Dept. v. Perini Corp., 79 Mass. App. Ct. 430, 441, 947 N.E.2d 62 (2011), quoting from Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007, 553 N.E.2d 1284 (1990). This strong public policy would not be honored if we allowed an arbitrator to reserve the calculation of preaward interest when the parties had agreed to arbitrate the issue. Furthermore, that course of action presumes that there will be further litigation, where the hope is that the losing party to the arbitration will comply with the arbitrator's award without the necessity of resort to the courts. See Katz, Nannis & Solomon, P.C. v. Levine, 473 Mass. 784, 794, 46 N.E.3d 541 (2016) (allowing parties to redefine "the scope of what a court was to review with respect to every arbitration award ... would spawn potentially complex and lengthy case-within-a-case litigation devoted to determining what the parties intended.... This is fundamentally contrary to the intent and purpose of our arbitration statute"). Indeed, the instant case demonstrates the complications that would arise if the parties could be required to return to court, rather than allowed simply to comply with the arbitrator's award.

Faced with an arbitrator's award that erroneously reserved the calculation of preaward interest to the court, the judge properly returned the matter to the arbitrator for correction. General Laws c. 251, § 9, authorizes the direct submission from the court to the arbitrator for the modification or correction of an award pending confirmation if (1) there is an evident mistake or miscalculation; (2) the award was imperfect in a matter of form, not affecting the merits of the controversy; or (3) for the purpose of clarifying the award. G. L. c. 251, §§ 9, 13. Baxter Health Care, Corp. v. Harvard Apparatus, Inc., 35 Mass. App. Ct. 204, 209, 617 N.E.2d 1018 (1993). Here, because the award improperly directed the judge to calculate preaward interest without the requisite agreement of the parties, it was imperfect as a matter of form, in a manner outside the merits of the underlying dispute. G. L. c. 251, § 13(a )(3). Accordingly, the issue of preaward interest was properly remanded to the arbitrator for calculation. See Baxter Health Care, Corp., supra at 210, 617 N.E.2d 1018 (resubmission to arbitrator under § 9 "is within the discretion of the court, and may be upon such conditions as the court orders").

It follows from the preceding conclusion that the plaintiff's motion to "correct" the arbitrator's postremand award was properly denied. The plaintiff's motion essentially asked the judge to disregard the arbitrator's postremand decision and to calculate the postaward interest himself. Because, however, the remanding judge properly had remanded the matter to the arbitrator, the third judge also properly rejected this motion. See Bolman, 82 Mass. App. Ct. at 141, 971 N.E.2d 300. See also Bruner and O'Connor on Construction Law § 21:215 (2014) (courts generally reluctant to correct awards imperfect in matter of form when doing so would change the amount awarded).

3. Motion in the alternative to vacate the arbitrator's postremand award. We uphold an arbitration award even if the arbitrator's findings and conclusions "appear erroneous, inconsistent, or unsupported by the record at the arbitration hearing." Katz, Nannis & Solomon, P.C., 473 Mass. at 790, 46 N.E.3d 541, quoting from Lynn v. Thompson, 435 Mass. 54, 61, 754 N.E.2d 54 (2001), cert. denied, 534 U.S. 1131, 122 S.Ct. 1071, 151 L.Ed.2d 973 (2002). "With respect to awarding damages, so long as the arbitrator 'do[es] not overstep the limits of the issues submitted to [him], a court may not substitute its judgment on the matter.' " Perini Corp., 79 Mass. App. Ct. at 435, 947 N.E.2d 62, quoting from Softkey, Inc. v. Useful Software, Inc., 52 Mass. App. Ct. 837, 839, 756 N.E.2d 631 (2001). "We do, however, vacate an award if '[a]n arbitrator exceeds his authority by granting relief beyond the scope of the arbitration agreement ... or by awarding relief prohibited by law.' " Springfield v. United Pub. Serv. Employees Union, 89 Mass. App. Ct. 255, 257-258, 47 N.E.3d 447 (2016), quoting from Lynn v. Lynn Police Assn., 455 Mass. 590, 596, 919 N.E.2d 158 (2010).

General Laws c. 251, § 12, inserted by St. 1960, c. 374, § 1, likewise, specifies that a judge shall vacate an arbitration award if:

"(1) the award was procured by corruption, fraud or other undue means;
(2) there was evident partiality by an arbitrator appointed as a neutral, or corruption in any of the arbitrators, or misconduct prejudicing the rights of any party; [or]
(3) the arbitrators exceeded their powers."

Here, the plaintiff does not allege corruption, fraud, or prejudice. Rather, the plaintiff contends only that the arbitrator exceeded his authority in the postremand award.

As previously discussed, however, arbitrators are authorized to grant preaward interest. See Bolman, 82 Mass. App. Ct. at 139, 971 N.E.2d 300. Indeed, arbitrators have substantial discretion to determine the scope of their contractual authority to fashion remedies, "unless expressly restricted by the agreement or the submission to arbitration." Perini Corp., 79 Mass. App. Ct. at 443, 947 N.E.2d 62, quoting from Superadio Ltd. Partnership v. Winstar Radio Prods., LLC, 446 Mass. 330, 339, 844 N.E.2d 246 (2006). An arbitrator's preaward interest award, moreover, "when made as a component of an award, is an integral part of the total remedy that he fashions and, as such, is not subject to the statutory provisions which apply to court-awarded interest on contract claims" (emphasis supplied). Id. at 434, 947 N.E.2d 62, quoting from Blue Hills Regional Dist. Sch. Comm. v. Flight, 10 Mass. App. Ct. 459, 472, 409 N.E.2d 226 (1980), S.C., 383 Mass. 642, 644, 421 N.E.2d 755 (1981). See also Construction Industry Arbitration Rules and Mediation Practices R-48(d)(i) (2015) (arbitrator's award may include "interest at such rate and from such date as the arbitrator may deem appropriate").

The agreement in this case contained no such provision limiting the arbitrator's authority to award interest of any kind, nor prescribed interest rates. The arbitrator did not, as the plaintiff suggests, thereby exceed his authority in calculating preaward interest below the statutory rate under G. L. c. 231, § 6C. See Perini Corp., 79 Mass. App. Ct. at 446, 947 N.E.2d 62 ("once the parties resort to arbitration and legal proceedings to resolve payment of disputed claims, ... the interest provisions of [the statute] are no longer controlling"). To the contrary, the determination was consistent with the Construction Industry Arbitration Rules incorporated into the arbitration agreement. See Construction Industry Arbitration Rules and Mediation Procedures R-48(a) ("The arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties"). The third judge thus correctly denied the plaintiff's motion to vacate the arbitrator's postremand award.

4. Attorney's fees and costs. As a general rule, "litigants bear their own expenses unless a statute or a contract or other agreement provides otherwise." E. Amanti & Sons, Inc. v. R.C. Griffin, Inc., 53 Mass. App. Ct. 245, 258, 758 N.E.2d 153 (2001). Here, the plaintiff claims supplemental attorney's fees and costs from the proceedings in the Superior Court to confirm the arbitrator's award pursuant to art. 8.16 of the subcontract between the plaintiff and Suffolk. In the absence of such an agreement, legal fees arising out of arbitration, including those to confirm, modify, or vacate an arbitration award, may not be awarded by a reviewing court. Finn, Mone, & Kelly, Mediation and Arbitration § 9:9 (2017-2018 ed. 2017), citing Floors, Inc. v. B. G. Danis of New England, Inc., 380 Mass. 91, 99-101, 401 N.E.2d 839 (1980). See Sun Fire Protection & Engr., Inc. v. D.F. Pray, Inc., 73 Mass. App. Ct. 906, 907-908, 899 N.E.2d 114 (2009) (declining to award attorney's fees and costs incurred solely in connection with obtaining award's confirmation). Rather, so far as the record before us reveals, the arbitration agreement confers on the arbitrator the sole power to award attorney's fees and costs. Accordingly, the parties have not demonstrated to us any error in the third judge's decision not to award attorney's fees for the litigation in Superior Court. Similarly, we do not award attorney's fees for this appeal.

5. Conclusion. The order dated November 10, 2016, denying the motion to confirm and correct or vacate the postremand arbitration award is affirmed.

So ordered.

      The remaining defendants, Fidelity and Deposit Company of Maryland, Safeco Insurance Company of America, and XL Specialty Insurance Company, are the joint sureties on the payment bond covering the project.

      The arbitrator also stated, "Should the parties fail to agree upon the amount due for attorney's fees and costs, the matter shall be submitted for determination by the Arbitrator pursuant to" the subcontract between the parties.

      The calculation of postaward interest, of course, remains a judicial duty where the parties cannot agree. See Diaz v. Cruz, 76 Mass. App. Ct. 773, 774, 926 N.E.2d 1182 (2010).

      Section 9 expressly allows resubmission to the arbitrator by the judge independent of a party's application; as a result, the plaintiff's argument on the basis of waiver is meritless.

      This is because the arbitrator awarded preaward interest but failed to calculate it. See Finn, Mone, & Kelly, Mediation and Arbitration § 19:172 (2017-2018 ed. 2017) ("The corrections and modifications may be made without affecting the merits of the award upon the issues submitted to the arbitrators" [emphasis supplied] ). Cf. Bruner and O'Connor on Construction Law § 21:215 (2014) ("Courts are authorized to correct or modify awards that are 'imperfect in matter of form,' as long as doing so does not affect the merits of the controversy. As a general rule, courts have been reluctant to modify damage awards on this ground because changing the amount awarded affects the merits" [emphasis supplied] ). By contrast, had the award merely been silent on the issue of preaward interest, the remanding judge could not have remanded. See Reilly, 412 Mass. at 1007, 588 N.E.2d 628.

      The defendants had paid all existing obligations awarded by the arbitrator at the time of the plaintiff's motion. As a result, there was no need for the judge to confirm the arbitrator's postremand award pursuant to G. L. c. 251, § 12(d ). See Murphy v. National Union Fire Ins. Co., 438 Mass. 529, 533, 781 N.E.2d 1232 (2003) ("confirmation of the award became moot because the obligation owed to the [prevailing party] had been satisfied").

      The subcontract, while referenced by both parties, does not appear in the record before us.


author: SULLIVAN, J.

text:
    Henrietta EATON v. FEDERAL NATIONAL MORTGAGE ASSOCIATION & another (and a companion case ).
    No. 17-P-359
    Appeals Court of Massachusetts, Suffolk..
    Argued January 12, 2018 Decided May 11, 2018
    Anna I. Kurtz (H. Esme Caramello also present) for Henrietta Eaton.
    Amy B. Hackett, Boston, for Federal National Mortgage Association & another.
    Present: Meade, Sullivan, & Kinder, JJ.

      Green Tree Servicing, LLC.

      Federal National Mortgage Association vs. Henrietta L. Eaton & others.

   SULLIVAN, J.

In November, 2009, Green Tree Servicing, LLC (Green Tree), foreclosed on Henrietta Eaton's home, exercising the power of sale contained in her mortgage. Green Tree, acting as servicer for Federal National Mortgage Association (Fannie Mae), offered the highest bid at the auction. As Green Tree's assignee, Fannie Mae purchased the property and then brought an eviction action in Housing Court. On the theory that the foreclosure was void because Green Tree did not hold the mortgage note at the time of the foreclosure sale, Eaton brought her own declaratory judgment action in Superior Court and obtained a preliminary injunction against the eviction, an injunction which resulted in the Supreme Judicial Court's oft-cited opinion in Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 969 N.E.2d 1118 (2012) ( Eaton I ).

After the remand in Eaton I, the Housing Court matter was transferred to the Superior Court and the two cases were consolidated. In September, 2016, on cross motions for summary judgment, a Superior Court judge entered judgment for Fannie Mae and Green Tree in the consolidated case.

Eaton now appeals, making three arguments. First, she claims a genuine issue of fact exists regarding the physical possession of her promissory note at the time of the foreclosure. Second, she asserts that a preforeclosure right to cure notice sent by Fannie Mae's predecessor, BankUnited, FSB (BankUnited), did not strictly comply with the terms of her mortgage, as required by Pinti v. Emigrant Mort. Co., 472 Mass. 226, 33 N.E.3d 1213 (2015). Third, Eaton contends that a question of fact exists as to BankUnited's authority to send the right to cure notice. We vacate the judgment on the narrow issue of BankUnited's authority to send the right to cure notice, and affirm the judgment in all other respects, albeit on somewhat different grounds.

Background. The general background of the case is set forth in Eaton I, which, as we have noted, considered the grant of a preliminary injunction. We recite the facts from the summary judgment record, reserving certain additional facts for later discussion.

Eaton signed the original note payable to BankUnited on September 12, 2007. On or about October 1, 2007, Fannie Mae purchased a pool of loans from BankUnited, including Eaton's loan. Eaton defaulted, and BankUnited sent her a right to cure notice dated November 14, 2008. In November of 2009, Green Tree, which had been made Fannie Mae's servicer, conducted the foreclosure auction that resulted in this litigation.

Discussion. Our review of the allowance of summary judgment is de novo, "because we examine the same record and decide the same questions of law" as the motion judge. Kiribati Seafood Co., LLC v. Dechert LLP, 478 Mass. 111, 116, 83 N.E.3d 798 (2017). And, given that "both parties have moved for summary judgment, [we view] the evidence ... in the light most favorable to the party against whom judgment is to enter." Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass.App.Ct. 245, 248 n.4, 921 N.E.2d 121 (2010).

1. Physical possession of the note at the time of foreclosure. In Eaton's view, Fannie Mae must demonstrate that there is no dispute of fact that it had physical possession of the note at the time of the foreclosure. See Eaton I, 462 Mass. at 571, 969 N.E.2d 1118 (construing "mortgagee" as used in certain foreclosure-related statutes as "the person or entity then holding the mortgage and also either holding the mortgage note or acting on behalf of the note holder"). Citing Eaton I, 462 Mass. at 571 & n.2, 969 N.E.2d 1118, Fannie Mae disagrees, stating that it is enough for it to have "owned" the note, regardless of whether it physically possessed the note, where Green Tree was an authorized servicer, acting on behalf of Fannie Mae. Thus, says Fannie Mae, any factual dispute over physical possession of the note is immaterial. The motion judge agreed, and, on this basis, declined to determine whether there were facts in dispute as to whether Fannie Mae had physical possession of the note at the time of the foreclosure. As a result, the judge ruled in favor of Fannie Mae and Green Tree on the basis that Fannie Mae was the owner of the note at the time of foreclosure, and Green Tree was its agent.

We decline to reach the "ownership" issue because Fannie Mae has provided competent evidence that it had physical possession of the note at the time of the foreclosure, while Eaton has offered no countervailing evidence. Specifically, Fannie Mae submitted the affidavits of Ana Barajas, a senior associate for its document custodian, The Bank of New York Mellon Trust Company, N.A. (BNYM), and Michael Ann Williamson, a vice president in Green Tree's document custody department. Both affidavits recite that they are based upon personal knowledge and review of the business records kept in the usual course of business by each affiant's respective employer.

Barajas avers that BNYM served as document custodian for certain Fannie Mae mortgage loans. The affidavit states that BNYM received Eaton's note from Fannie Mae on or about July 10, 2009-before the foreclosure. BNYM retained physical custody of the note from that date until October 4, 2013, when the note was sent to Green Tree.

The Williamson affidavit authenticates the custodial agreement between Fannie Mae and BNYM, as well as a redacted list of mortgage loans. That list identifies Eaton's note (by loan number) as one of those as to which BNYM agreed to take custody. Williamson, on behalf of Green Tree, states unequivocally that BNYM sent the note to Green Tree on October 4, 2013.

Eaton counters that the Barajas and Williamson affidavits are not competent to show that BNYM had physical possession of the note in October and November of 2009, because they are not based on personal knowledge and violate the best evidence rule. We disagree. The affidavits satisfy the personal knowledge requirement of Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974). They are submitted by individuals employed by the relevant parties, attest to the transfer of the note from Fannie Mae's custodian, BNYM, to its new servicer, Green Tree, and are based on a review of the business records of each entity. "The affidavit[s] [were] made on the basis of personal knowledge of the ... practices of the parties as well as a review of business records and it was sufficient." First Natl. Bank of Cape Cod v. North Adams Hoosac Sav. Bank, 7 Mass.App.Ct. 790, 791, 794, 391 N.E.2d 689 (1979).

Moreover, the best evidence rule-that an original writing or record is required in order to prove its content, see Mass. G. Evid. § 1002 (2017)-is inapplicable here. "[A]part from the contents of a writing[,] [the best evidence] rule does not require that a fact be proved in only one way." Commonwealth v. Locke, 338 Mass. 682, 687, 157 N.E.2d 233 (1959). Fannie Mae's affidavits are not offered to prove the content of any document. Contrast Khalsa v. Sovereign Bank, N.A., 88 Mass.App.Ct. 824, 824-826, 44 N.E.3d 863 (2016). Rather, they are offered to prove the physical location of the note at a particular time. See Ecclesiastes 3:1, Inc. v. Cambridge Sav. Bank, 10 Mass.App.Ct. 377, 381, 407 N.E.2d 1318 (1980).

Eaton's argument reduces to the contention that first-hand knowledge must be demonstrated by either a first-hand account of the individual who received the note from BankUnited, or production of other contemporaneous documentation. For the reasons stated, Fannie Mae's affidavits were sufficient to demonstrate that it had physical possession of the note at the time of the foreclosure. At that juncture, Eaton was required to offer affidavits or other record evidence setting forth specific facts showing that the absence of contemporaneous documentation created a genuine issue of material fact as to possession of the note during the relevant time period. See Mass.R.Civ.P. 56(e). However, Eaton offered no evidence that the lack of contemporaneous documentation violated Fannie Mae policy, industry practice, or legal or regulatory requirements, or was in some other way suspect at the time the note was sent to BNYM. In these unique circumstances, Eaton's "bare assertion[s]" are insufficient to raise a genuine issue of material fact. See Community Natl. Bank v. Dawes, 369 Mass. 550, 559, 340 N.E.2d 877 (1976). Because the Barajas and Williamson affidavits meet the requirements of rule 56(e), summary judgment for Fannie Mae and Green Tree was properly granted with respect to Eaton's claim that the foreclosure did not comply with the requirements of Eaton I.

2. Strict compliance with paragraph 22. Next, Eaton contends that BankUnited's November 14, 2008, right to cure notice did not strictly comply with paragraph 22 of Eaton's mortgage. See Pinti, 472 Mass. at 227, 33 N.E.3d 1213. Paragraph 22 of Eaton's mortgage requires that a notice be sent prior to acceleration of her debt. The paragraph provides, in pertinent part:

"The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to the Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property."

Paragraph 22 also requires that "[t]he notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale."

In Pinti, supra, the Supreme Judicial Court held that the provisions of paragraph 22 of Fannie Mae's uniform home mortgage "constitute 'terms of the mortgage' governing the power of sale," as that phrase is used in G. L. c. 183, § 21, and, accordingly, a valid foreclosure requires strict compliance "with paragraph 22's notice of default provisions." Id. at 240, 33 N.E.3d 1213.

BankUnited's notice complied with paragraph 22 insofar as it listed the amount of the default, stated that the default could be cured by paying that amount, and provided a deadline of February 12, 2009, for curing the default-more than thirty days after the date of the notice. The notice further stated, "If the default is not cured by February 12, 2009, BankUnited may take steps to terminate your ownership in the property by a foreclosure proceeding or other action to seize your home." Unlike the notice at issue in Pinti, Eaton's notice did not incorrectly suggest that BankUnited would be required to bring a court action in order to foreclose-which Eaton would then have an opportunity to defend. Instead, it stated clearly: "[Y]ou have the right to ... bring a court action to assert the non-existence of a default or any other defense to acceleration or sale."

Eaton argues, however, that the notice did not sufficiently convey that a failure to cure the default could result in a "sale of the Property." Pinti requires that the mortgagee "send[ ] a notice that conforms to the language of the paragraph." 472 Mass. at 238, 33 N.E.3d 1213. It does not require that the notice quote word for word from the mortgage. Here, the notice stated that if the default were not cured, BankUnited might "take steps to terminate your ownership in the property by a foreclosure proceeding or other action to seize the home." The language strictly complies with paragraph 22.

3. BankUnited's authority to send the paragraph 22 notice. Eaton fares better with her argument that a genuine issue of fact exists as to whether BankUnited was authorized to send the paragraph 22 notice in the first place.

Paragraph 22 requires the "Lender" to give the borrower notice of the right to cure. Eaton claims that under Eaton I and Pinti, supra, a paragraph 22 notice is valid only if it is sent by the "Lender" or its agent, and the "Lender" necessarily must be the note holder because the note holder is the only entity that can authorize an exercise of the power of sale. See Pinti, 472 Mass. at 227, 33 N.E.3d 1213. See also Eaton I, 462 Mass. at 571, 969 N.E.2d 1118, citing G. L. c. 183, § 21, and G. L. c. 244, § 14, as then in effect. Therefore, Eaton contends, because the "Lender" is the only entity that has the authority to send the paragraph 22 notice, "strict compliance" with the terms of paragraph 22 means that notice must be sent by the "Lender" or its agent. See Pinti, supra. See also Eaton I, supra. Thus, she claims, summary judgment could not be awarded to Fannie Mae without a showing that BankUnited was either the note holder or acted on behalf of Fannie Mae as note holder when it sent the paragraph 22 notice in November, 2008.

On appeal, Fannie Mae makes no argument as to whether proof is required that either it or BankUnited had physical possession of the note at the time the notice to cure was sent. Nor does Fannie Mae argue that it or BankUnited was the noteholder at that time. Instead, Fannie Mae relies solely on BankUnited's purported authority as its servicer to send the notice. Fannie Mae has not, however, provided competent evidence that BankUnited acted as its agent in sending the notice.

In the summary judgment proceedings, Fannie Mae relied on the affidavit of Thomas Clark, a foreclosure manager for Green Tree. Although Clark's affidavit states that it is made on behalf of Fannie Mae as well as Green Tree, he does not allege that he worked for either Fannie Mae or BankUnited at any time. And, while he claims to have personal knowledge of the facts in question, there is no basis in the affidavit to establish personal knowledge of the facts at the time that BankUnited sent the notice. Nor does it appear that he "would have been competent to testify to any of the[se] critical matters at trial." Stanton Indus., Inc. v. Columbus Mills, Inc., 4 Mass.App.Ct. 793, 794, 344 N.E.2d 199 (1976).

Even if we were to consider the affidavit, it fails to establish that there is no dispute of material fact as to BankUnited's agency relationship with Fannie Mae and BankUnited's authority to foreclose. The affidavit states that after Eaton's loan closed in September, 2007, "BankUnited serviced the Loan." However, although Clark states that he reviewed Green Tree's business records, he does not aver that those records contained a servicing agreement between BankUnited and Fannie Mae, or that the records contained any other document granting BankUnited authority to foreclose. Moreover, during discovery, Fannie Mae declined to produce a written servicing agreement between BankUnited and Fannie Mae. Nor did Fannie Mae provide any other evidence that it had authorized BankUnited to send the right to cure notice. Accordingly, Fannie Mae's evidence on authority was woefully short of what is required by Mass.R.Civ.P. 56(e). See Khalsa, 88 Mass.App.Ct. at 828-829, 44 N.E.3d 863.

Conclusion. So much of the judgment as ruled against Eaton on her claim that the foreclosure was invalid because the paragraph 22 notice was not authorized by the note holder is vacated, and the matter is remanded for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.

So ordered.

      In Eaton I, the Supreme Judicial Court concluded that, "where a mortgagee acts with the authority and on behalf of the note holder, the mortgagee may comply with the[ ] statutory requirements [governing mortgage foreclosure by sale] without physically possessing or actually holding the mortgage note." 462 Mass. at 589, 969 N.E.2d 1118. The court vacated the preliminary injunction and remanded the matter to the Superior Court for further proceedings, to include an opportunity for Eaton to "establish[ ] that, at the time of the foreclosure sale, Green Tree neither held the note nor acted on behalf of the note holder." Id. at 590, 969 N.E.2d 1118.

      Although Eaton's right to cure notice was sent long before the Pinti decision issued on July 17, 2015, Eaton's Pinti argument was raised in the trial court before that case was decided. The issue is therefore properly before us. See Federal Natl. Mort. Assn. v. Marroquin, 477 Mass. 82, 88-89, 74 N.E.3d 592 (2017).

      Green Tree's notice of foreclosure sale, sent to Eaton pursuant to G. L. c. 244, § 14, is dated October 5, 2009. The sale was advertised by newspaper publication on October 13, 20, and 27, 2009, and was held on November 4, 2009.

      As an appellate court, we are free to affirm on grounds different from those relied on by the motion judge. See Balles v. Babcock Power Inc., 476 Mass. 565, 579 n.21, 70 N.E.3d 905 (2017).

      Although Eaton claims that Green Tree has no first-hand knowledge of the Fannie Mae-BNYM custody agreement, we are satisfied that Green Tree's document custody officer was competent to provide an affidavit authenticating the agreement.

      Eaton acknowledges that Fannie Mae remained the "holder" of the note while the instrument was kept by Fannie Mae's document custodian, BNYM. During discovery the note was produced and Eaton was given the opportunity to inspect it.

      Khalsa v. Sovereign Bank, N.A., 88 Mass.App.Ct. 824, 44 N.E.3d 863 (2016), upon which Eaton relies, is distinguishable for two reasons. First, no affidavit based on first-hand knowledge was brought to the attention of the motion judge in Khalsa. Id. at 831, 44 N.E.3d 863 n.9. Second, Khalsa concerned the agency relationship between lender and servicer, not the physical location of the note, and it was the facts concerning agency that were in dispute. See id. at 824-827, 44 N.E.3d 863.

      If there was such evidence in the voluminous record, it was not brought to the attention of the judge or this court. See Khalsa, 88 Mass.App.Ct. at 831 n.9, 44 N.E.3d 863.

      Eaton's mortgage states on its face that it is Fannie Mae's uniform mortgage instrument for Massachusetts single family homes. The mortgage at issue in Pinti was also "the standard form mortgage provided by ... (Fannie Mae) and Federal Home Loan Mortgage Corporation (Freddie Mac)." Pinti, 472 Mass. at 236 n.16, 33 N.E.3d 1213.

      The notice also contained several lines of odd computerized coding, similar versions of which were repeated in various places in the document. This enigmatic coding was obviously included in error. Although this is far from ideal, we agree with the motion judge that the strange coding did not obscure the text that was required to strictly comply with paragraph 22.

      In Pinti, the notice of default stated that the mortgagors had "the right to assert in any lawsuit for foreclosure and sale the nonexistence of a default or any other defense [they] may have to acceleration and foreclosure and sale." 472 Mass. at 229, 33 N.E.3d 1213.

      The motion judge concluded that Eaton waived this argument because she failed to raise it before the hearing on the motion for summary judgment. Eaton, however, made this argument both in a motion to compel and a supplemental brief in connection with the summary judgment motion, both filed with permission and served on Fannie Mae before the hearing. Fannie Mae responded in its own supplemental brief and there was lengthy discussion by both counsel on the topic during the oral argument. The issue was preserved. And because the matter comes before us on a motion for summary judgement, where our review is de novo, we may decide the question of law presented. See Kiribati Seafood Co., LLC, 478 Mass. at 116, 83 N.E.3d 798.

      Fannie Mae's brief states, "Fannie Mae (through its then-servicer, BankUnited) complied with paragraph 22 of the Mortgage ...."

      The affidavit also states that servicing rights for the loan were not transferred from BankUnited to Green Tree until April 1, 2009, some four and one-half months after the right to cure notice was sent.

      We decline to reach Eaton's argument that Fannie Mae must demonstrate that it physically held the note at the time the right to cure notice was sent, and Fannie Mae's counter argument that ownership is all that is required. We do so not on the merits, and not because of any failure on the parties' part to preserve or adequately argue the issue, but because the question may become moot if, on remand, Eaton prevails at summary judgment on the question whether Fannie Mae had an agency relationship with BankUnited at the time the notice was sent. If the question of physical possession versus simple ownership is not moot, the parties may readdress these issues on remand.


author: HANLON, J.

text:
    COMMONWEALTH v. Robert GALIPEAU.
    No. 16-P-754
    Appeals Court of Massachusetts, Norfolk..
    Argued October 4, 2017 Decided May 16, 2018
    Barbara A. Munro, Northampton, for the defendant.
    Stephanie Martin Glennon, Assistant Attorney General, for the Commonwealth.
    Present: Green, Hanlon, & Neyman, JJ.
   HANLON, J.

After a jury trial, the defendant, Robert Galipeau, was convicted of armed robbery arising from the gunpoint theft of cash from three men at approximately 1 A.M. on April 18, 2013, immediately after the victims left the Assembly Bar in Quincy. The sole issue at trial was the identification of the robber. The defendant argues on appeal that his motion to suppress a photographic identification should have been allowed and that the trial judge improperly allowed an in-court identification. We affirm.

1. Motion to suppress photographic identification. "We recite the facts as found by the motion judge, supplemented by uncontroverted testimony" submitted during the evidentiary hearing on the motion to suppress. Commonwealth v. Cordero, 477 Mass. 237, 238, 74 N.E.3d 1282 (2017). We accept all of the judge's factual findings, none of which is clearly erroneous. See Commonwealth v. Borgos, 464 Mass. 23, 32, 979 N.E.2d 1095 (2012).

After the robbery, Leo Tang, one of the victims, told the police that the robber had followed him and his two friends from the Assembly Bar to his car across the street. Tang described the robber as a white male, approximately five feet, ten inches tall, scruffy looking, with facial hair, and wearing a hooded sweatshirt, gray shirt, and jeans. Tang had seen the man in the bar earlier that night, with a Budweiser beer next to him. After the police received this information from Tang, an officer met with Robert Sylva, the bar manager, to view surveillance videotape. The videotape depicted a white man drinking a Budweiser at a table; he fit the description Tang had given. Sylva told the officer that the person drinking a Budweiser in the video was the defendant.

Once the police had the defendant's name, two officers went to his home and knocked on his front door but received no answer. They went toward the rear door, and, while walking along the right side of the house, they saw the defendant standing at the sink in the kitchen of the ground floor apartment. The officers then went back to the front door and knocked again. They knocked on the door without response for a lengthy period of time before the defendant finally answered. He was wearing only a pair of jeans and sneakers, and his face appeared to be freshly shaved, with cuts on his upper and lower lip that were actively bleeding.

At approximately 3 A.M. , police officers brought Tang, in a police cruiser, to the street outside the defendant's house for a showup identification procedure. Tang viewed the defendant, who was standing on the sidewalk, for five to ten minutes. Tang did not identify the defendant as the robber at that time, saying that he could not be sure of an identification because the robber had been scruffier, with facial hair.

Later that day, Quincy Police Detective Ricky Wash created a computer-generated photo array, including the defendant's photo and six other photos of men with similar physical characteristics. The photo identification procedure was administered by Detective Michael Ward, who was otherwise uninvolved in the investigation.

Tang viewed the photos one at a time, and, when he came to the second photo, he said it looked similar to the robber, but he was having trouble making a positive identification because the robber had been wearing a hat and a hooded sweatshirt. At Ward's instruction, Tang went through the remaining photos. When he returned to the second photo, Ward put a piece of paper over the upper head of the person depicted and Tang covered the person's ears with his hands. Tang then wrote on the photo, at Ward's request, "I believe this is the suspect because he seems like an average white male. The chin structure with a little facial hair look similar. I couldn't see his head or ears because he wore a hat and hoodie at the time."

a. Multiple identification procedures. "For a motion to suppress a photographic identification to succeed, the defendant must show by a preponderance of the evidence that, in light of the totality of the circumstances, the procedures employed were so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law." Commonwealth v. Borgos, 464 Mass. 23, 32, 979 N.E.2d 1095 (2012), quoting from Commonwealth v. Watson, 455 Mass. 246, 250, 915 N.E.2d 1052 (2009). See Mass. G. Evid. § 1112(b)(1) (2017). In reviewing a decision on such a motion, we "review without deference the judge's application of the law to the facts as found." Commonwealth v. Johnson, 473 Mass. 594, 602, 45 N.E.3d 83 (2016).

The defendant's primary argument is that the unsuccessful showup tainted the subsequent photo array procedure, rendering it impermissibly suggestive. The motion judge addressed this issue squarely and concluded that conducting a photo array procedure that included the defendant, after Tang had failed to identify him at the showup, "may not be ideal, but was warranted where the defendant had apparently altered his appearance since the time of the crime."

We agree with the motion judge. The evidence before him at the suppression hearing strongly suggested that the defendant had shaved immediately before he answered the door to his home in the early morning hours of April 18, 2013. In addition, Tang indicated at the showup that the reason he could not identify the defendant as the robber was the difference in the very feature that the defendant had apparently altered. Under these circumstances, it was appropriate for the police to conduct a second identification procedure.

Moreover, Massachusetts courts have "declined to adopt 'a per se exclusionary rule condemning as constitutionally infirm all subsequent identifications of a defendant by any witness who had previously failed to select the defendant.' " Commonwealth v. Paszko, 391 Mass. 164, 171, 461 N.E.2d 222 (1984), quoting from Commonwealth v. Lacy, 371 Mass. 363, 369, 358 N.E.2d 419 (1976). Even where the defendant's photograph is the only one duplicated in multiple arrays, the resulting out-of-court identification is not necessarily inadmissible. See Commonwealth v. Carter, 475 Mass. 512, 518, 58 N.E.3d 318 (2016). See also Paszko, supra at 168-169, 461 N.E.2d 222 ;

Commonwealth v. Holland, 410 Mass. 248, 254, 571 N.E.2d 625 (1991). Moreover, the Supreme Judicial Court has upheld the admission of identification evidence in circumstances similar to those presented here. See Commonwealth v. Forte, 469 Mass. 469, 476, 14 N.E.3d 900 (2014) (witness made identification from photo array after failing to identify defendant at showup and then being shown videotape footage from security camera). Here, the fact that Tang participated in multiple identification procedures did not render the identification "unnecessarily suggestive and conducive to irreparable misidentification." Borgos, 464 Mass. at 32, 979 N.E.2d 1095 (quotation omitted).

b. "Cropping" of the photo. Next, the defendant contends that the photo array was impermissibly suggestive because Ward and Tang covered the upper head and ears of the defendant's photograph only-and not the other six. The defendant's reliance on Borgos, supra, is, however, misplaced. There, in showing the same photographic array to three out of four witnesses, the administering officer covered the defendant's hair with a paper after an initial identification by the witness. Id. at 32-33, 979 N.E.2d 1095. The Supreme Judicial Court rejected the argument that covering a part of the photograph was unnecessarily suggestive, noting that this procedure did not occur "until after a positive identification had been made by the witness." Id. at 34, 979 N.E.2d 1095.

The defendant argues that the initial identifications in Borgos, supra, were unequivocal, as compared to Tang's less certain initial selection of the defendant's photo-and, therefore, we should read Borgos as supporting his position. However, even if the defendant is correct that the witnesses in Borgos were somewhat less equivocal in their initial selection of the suspect's photo than Tang, that does not mean that the procedure used here was impermissibly suggestive. Nothing in Borgos is to the contrary.

Tang testified at the suppression hearing that, after he picked out the defendant's photograph on his own, he told Ward he was having trouble making an identification because the robber had been wearing a hat and a hooded sweatshirt. Ward's use of the paper to cover the upper head in the defendant's photograph was a direct response to Tang's statement. Tang then, independently, covered the ears in the photo with his own hands. This procedure was not unnecessarily suggestive, and any equivocation in Tang's initial identification went to the weight of the evidence, not its admissibility. See Commonwealth v. Sullivan, 436 Mass. 799, 806-807, 768 N.E.2d 529 (2002) ("The tentative nature of an identification does not disqualify it from admission, but goes to its weight").

c. Reliability. Finally, the defendant urges that, even if police procedures were not unnecessarily suggestive, Tang's out-of-court identification of the defendant should have been excluded as unreliable pursuant to Johnson, 473 Mass. at 604 n.4, 45 N.E.3d 83. Johnson, however, does not assist the defendant for two reasons.

First, the better view of the law existing at the time of the hearing on the motion to suppress is correctly reflected in the judge's ruling that he was not authorized to consider the reliability of Tang's identification once he had determined that police procedures were not unnecessarily suggestive. See Commonwealth v. Cavitt, 460 Mass. 617, 632, 953 N.E.2d 216 (2011), quoting from Watson, 455 Mass. at 251, 915 N.E.2d 1052 ("Where an identification procedure is not impermissibly suggestive, a pretrial identification is admissible without any further showing"). See also Paszko, 391 Mass. at 172, 461 N.E.2d 222 ; Commonwealth v. Warren, 403 Mass. 137, 140, 526 N.E.2d 250 (1988) ; Commonwealth v. Ross, 426 Mass. 555, 560, 689 N.E.2d 816 (1998). Johnson was decided nearly two years after the judge issued his decision on the defendant's motion to suppress, and a few weeks after his trial. See Commonwealth v. Crayton, 470 Mass. 228, 245, 21 N.E.3d 157 (2014) (judge did not abuse discretion where admission of in-court identification was in accord with then-existing case law); Commonwealth v. Bastaldo, 472 Mass. 16, 21-23, 32 N.E.3d 873 (2015) (trial judge did not err in giving jury instruction based on law at time of trial).

In any event, Johnson did not alter longstanding authority holding that assessment of an eyewitness identification is for the jury where the police procedures did not violate the defendant's constitutional rights.

Second, to the extent that the motion judge in this case was authorized to consider reliability, any exercise of that authority is reviewable only for abuse of discretion and is not subject to the independent appellate review afforded a legal conclusion regarding constitutional rights. See Johnson, 473 Mass. at 602, 45 N.E.3d 83. See also Commonwealth v. Thomas, 476 Mass. 451, 465, 68 N.E.3d 1161 (2017). Here, in an abundance of caution, the motion judge considered reliability and found that, even if a reliability analysis were legally available, "the identification would not be considered so unreliable as to require exclusion where suppression was not constitutionally compelled." Having reviewed the record thoroughly, we see no abuse of discretion in the judge's finding.

2. Trial identification. The defendant argues that Sylva, the bar manager, should not have been permitted to identify the defendant in court at the trial because he had not previously participated in an out-of-court identification procedure. The suggestion that the police should have subjected Sylva to an out-of-court identification procedure is unreasonable, considering that Sylva's prior familiarity with the defendant was the source of the police officers' original identification of the defendant as a person of interest in the investigation.

The defendant is correct that the "good reason" requirement announced in Crayton, 470 Mass. at 241-242, 21 N.E.3d 157, did not apply to Sylva's testimony because this requirement explicitly applies only to in-court identifications by eyewitnesses who were present during the commission of the crime. See Commonwealth v. Collins, 470 Mass. 255, 265, 21 N.E.3d 528 (2014). There was, however, no harm in the prosecutor's bringing a motion in limine pursuant to Crayton and Collins concerning Sylva's proposed testimony. This could only have benefited the defendant. Moreover, to the extent the "good reason" standard was properly applied to Sylva's proposed testimony, his familiarity with the defendant before the crime satisfied that requirement. See Crayton, supra at 242, 21 N.E.3d 157.

For all of these reasons, we are satisfied that, the Commonwealth's identification evidence was properly admitted and was sufficient to support the jury's verdicts.

Judgments affirmed.

      One of the photos was of a man with a darker complexion than the others. Wash also used an old booking photo of the defendant in the array, rather than a newer photo from the Registry of Motor Vehicles. The motion judge determined that the array was fairly composed and we defer to his judgment. See Commonwealth v. Forte, 469 Mass. 469, 478, 14 N.E.3d 900 (2014).

      The defendant attempts to make much of the fact that Detective Ward used the word "familiar" instead of "similar" in his testimony. Specifically, Ward testified, "When I turned over photo number 2, Mr. Tang looked at it and said that looks familiar and then, starting tapping his finger on the photo for several minutes." Tang's own testimony, however, was that photograph number 2 "looked like the guy." This testimony was sufficient to support the judge's finding.

      "Where the defendant satisfies this burden, the out-of-court identification is per se excluded as a violation of the defendant's right to due process under art. 12 of the Massachusetts Declaration of Rights." Commonwealth v. Walker, 460 Mass. 590, 599, n.13, 953 N.E.2d 195 (2011). "Because the standard for admissibility of an identification under the Massachusetts Constitution is more favorable to a defendant than the standard under the United States Constitution," we need not consider any Federal constitutional claims here. Ibid.

      In Carter, decided a few months after the defendant's trial, the Supreme Judicial Court stated, "We discourage the use of repeated arrays containing a suspect's photograph, ... and the use of repeated arrays could make identification procedures unnecessarily suggestive if the police do not have good cause for the use of such procedure." 475 Mass. at 518, 58 N.E.3d 318. Even though the defendant in Carter was the only person depicted in two arrays, the court concluded there was good cause for the procedure because the second array was shown to each of two witnesses only after each one "commented that the perpetrator's hair was shorter than was depicted in the photographs used in the first array." Ibid.

      At oral argument, the defendant's attorney suggested that a photo array excluding the defendant's photo should have been shown to Tang in between the showup and the array containing the defendant's photo, in order to insulate the array procedure from the risk that Tang would remember the defendant from the showup and not from the crime. The motion judge considered this argument, but correctly stated that such a procedure was not constitutionally required. See Commonwealth v. Martin, 447 Mass. 274, 280, 850 N.E.2d 555 (2006) ("Failure of the police to pursue alternate identification procedures does not in itself render an identification unduly suggestive"). See also Commonwealth v. Dew, 478 Mass. 304, 308, 85 N.E.3d 22 (2017).

      In Forte, 469 Mass. at 476, 14 N.E.3d 900, the court stated that the failed showup "actually could assist the defendant by casting doubt on the defendant's identity as the perpetrator." The same could be said here.

      Tang also testified that he singled out the defendant's photo "[b]ecause it looked closest to it ... [t]he facial hair and the jaw structure."

      In addition, the photo array was administered by a police officer who had no prior involvement in the case. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 797, 906 N.E.2d 299 (2009) ("double-blind" procedure, where administering officer does not know identity of suspect, "is the better practice"). See also Mass. G. Evid. § 1112(b)(1) (enumerating factors judge should consider regarding photo array).

      In Johnson, the court was not concerned with police procedures that might render an identification unnecessarily suggestive. There, relying on Commonwealth v. Jones, 423 Mass. 99, 107, 666 N.E.2d 994 (1996), the court explained that, where the police had no involvement in a suggestive confrontation between a witness and a defendant, the identification could be suppressed nonetheless in an exercise of the court's broad authority, to exclude evidence where its probative value is substantially outweighed by the danger of unfair prejudice. See Johnson, supra at 599, 45 N.E.3d 83 ; Mass. G. Evid. § 403 (2017). The authority described in Johnson is based on "common law principles of fairness," and not the art. 12 considerations undergirding the "unnecessarily suggestive" criterion. Id. at 599-600, 45 N.E.3d 83. The Johnson decision did not, as the defendant argues, alter the existing constitutional analysis applicable to identification procedures conducted by the police, as had been contemplated five years earlier in Walker, 460 Mass. at 606, 953 N.E.2d 195.

      In Dew, 478 Mass. at 307, 85 N.E.3d 22, the Supreme Judicial Court reinforced this distinction. There, the court wrote that whether there was "good reason" for an inherently suggestive showup procedure (a question not in issue here because the defendant does not challenge the original, unsuccessful showup) is "a question of law to be decided by an appellate court, based on facts found by the motion judge." Ibid. In considering the judge's discretionary determination under "common law principles of fairness" to allow an in-court identification, however, the court reviewed that evidentiary ruling for an abuse of discretion. Id. at 315, 85 N.E.3d 22 (quotation omitted). See id. at 322 & n.5, 85 N.E.3d 22 (Gants, J., concurring).

      The judge's decision to reach the issue was prescient. Just a few months after the defendant's trial, in a case involving multiple photographic arrays administered by police, the Supreme Judicial Court wrote: "Our conclusion that the identifications were not 'unnecessarily suggestive' does not end the inquiry. Even if otherwise admissible, a judge may suppress identification evidence if 'its probative value is substantially outweighed by the danger of unfair prejudice.' " Carter, 475 Mass. at 518, 58 N.E.3d 318, quoting from Johnson, 473 Mass. at 599, 45 N.E.3d 83. More recently, in considering an in-court eyewitness identification, the Supreme Judicial Court cited Carter, and stated broadly that "[a] judge applying common law principles of fairness has the discretion to exclude unreliable eyewitness identification testimony." Dew, 478 Mass. at 315, 85 N.E.3d 22 (quotation omitted).