text:
    COMMONWEALTH v. Michael M. ST. PIERRE, Jr.
    17-P-1162
    Appeals Court of Massachusetts.
    Entered: November 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Michael M. St. Pierre, Jr., appeals from his conviction of assault and battery on a household member in violation of G. L. c. 265, § 13M (a ). He claims error in (1) the denial of his request for a self-defense instruction, (2) improper in-court identification of the defendant, and (3) improper closing argument by the prosecutor. We affirm.

1. Self-defense instruction. The defendant asserts that he was entitled to a jury instruction on self-defense, and that the trial judge committed prejudicial error by not instructing the jury accordingly. Because the defendant timely objected, "[w]e determine whether the instructions were legally erroneous, and (if so) whether the error was prejudicial.... We will not find prejudice where an error did not influence the jury, or had but very slight effect" (quotation omitted). Commonwealth v. Allen, 474 Mass. 162, 168 (2016).

"The evidentiary threshold for a defendant seeking an instruction on self-defense is low, as it is the Commonwealth's burden to prove that the defendant did not act in proper self-defense once the issue is raised.... In determining whether the evidence warrants an instruction on self-defense, we consider the evidence, from any source, and resolve all reasonable inferences in favor of the defendant." Commonwealth v. Ortega, 480 Mass. 603, 609-610 (2018). To be entitled to an instruction on self-defense, the evidence, taken in the light most favorable to the defendant, must warrant at least a reasonable doubt that the defendant reasonably and actually believed that he was in imminent danger; that he sought to avoid physical combat; and that he used no more force than was reasonably necessary in light of the circumstances. See id. at 610. However, the right of self-defense generally "cannot be claimed by a [person] who provokes or initiates an assault." Id., quoting Commonwealth v. Espada, 450 Mass. 687, 693 (2008).

The Commonwealth's theory of the case was that the defendant assaulted and attempted to strangle his girl friend on April 6, 2016. A neighbor heard the assault and came into the apartment, interrupting the assault. The two women held on to the defendant to prevent him from fleeing down the fire escape and called 911. The defense was that no such assault took place. Defense counsel requested a self-defense instruction, arguing that the women grabbed him without authority, and that he was injured in his struggle to leave.

The principal defect in the defendant's argument is one of timing. The girl friend testified that she grabbed his leg to prevent him from leaving the apartment after he assaulted her. The Commonwealth's assault and battery case was based entirely on actions the defendant took before the women restrained him. The evidence in this case, viewed most favorably to the defendant, was not sufficient to raise the issue of self-defense because the acts against which he claimed to have defended himself occurred after he was alleged to have initiated the attack. Compare Espada, 450 Mass. at 693 (assault on defendant occurred one and one-half hours before shooting). Further, there was no evidence that, at the time the Commonwealth claimed the assault occurred, the defendant was in danger of personal harm, or that he attempted to avoid physical combat. Id. Contrast Ortega, 480 Mass. at 610. Accordingly, the evidence in this case was not sufficient to raise the issue of self-defense, even when viewed in the light most favorable to the defendant without regard to credibility. See Commonwealth v. Rodriquez, 461 Mass. 100, 109-110 (2011) ; Espada, supra at 694. Contrast Ortega, supra at 610.

2. In-court identification. Before trial, the Commonwealth moved in limine to permit the girl friend to make an in-court identification of the defendant, but did not move to permit in-court identifications by either the neighbor or the arresting officer. Relying on Commonwealth v. Crayton, 470 Mass. 228 (2014), the defendant claims, for the first time on appeal, that the trial judge should have excluded the in-court identifications of the defendant by his neighbor and the arresting police officer because neither witness participated in a nonsuggestive pretrial identification procedure, and there was no "good reason" for their admission. Id. at 241. Our review of this claim is limited "to determining whether the judge abused his discretion, ... meaning that he must have 'made a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives.' " Commonwealth v. Collins, 92 Mass. App. Ct. 395, 397 (2017), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

a. Neighbor. The defendant was identified at trial by the neighbor who lived in the apartment directly beneath the one shared by the defendant and the girl friend.

An in-court identification of the defendant by an eyewitness who was present during the commission of the crime but did not participate in a pretrial identification procedure is admissible if there is good reason for its admission, and the Commonwealth has moved in limine to admit the in-court identification. Crayton, 470 Mass. at 241-243. Good reason exists where the witness knows the defendant and identification is not an issue at trial. Id. at 242.

Although the prosecutor should have filed a motion in limine, the judge did not abuse his discretion in allowing the testimony. The neighbor knew the defendant. "[T]here may be 'good reason' for the first identification procedure to be an in-court showup where the eyewitness was familiar with the defendant before the commission of the crime" because in this circumstance, "the in-court showup is understood by the jury as confirmation that the defendant sitting in the court room is the person whose conduct is at issue rather than as identification evidence." Id. Moreover, identification was not a live issue at trial, and a confirmatory identification was admissible for that reason as well. Id. at 242-243.

b. Officer. The defendant was also identified at trial by the arresting officer, who arrived on the scene when the defendant was outside the apartment on the fire escape. The prosecutor asked the officer to identify the "male party [who] was found on [the] scene." The officer's identification testimony was not subject to the Crayton rule since the officer was not an eyewitness "present during the commission of the crime." Id. at 242. Alternatively, even if the officer was considered to be an eyewitness, good reason existed to admit the testimony, as the witness was the arresting officer and he identified the defendant to confirm that he was the person arrested for the charged crime. Id.

Furthermore, the defendant had strategic reasons for wanting the officer to identify him. See Commonwealth v. Roderiques, 462 Mass. 415, 427 (2012) ("one factor to be considered in determining whether an error has created a substantial risk of a miscarriage of justice is whether defense counsel's failure to object was simply a reasonable tactical decision"). Defense counsel cross-examined the officer using photographs of the defendant with various injuries to his body -- injuries the defense argued were inflicted by the girl friend during an unprovoked attack on the defendant.

3. Prosecutor's closing argument. The defendant claims several errors in the prosecutor's closing argument to which defense counsel objected. "Because the judge overruled the defendant's objection, we consider whether the prosecutor's comments were improper and, if they were, whether the error was prejudicial." Commonwealth v. Goitia, 480 Mass. 763, 775 (2018). "Remarks made during closing arguments are considered in context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Andrade, 468 Mass. 543, 552 (2014), quoting Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). Because the defendant timely objected to the prosecutor's improper argument, "we evaluate whether the defendant was prejudiced thereby." Commonwealth v. Beaudry, 445 Mass. 577, 584 (2005). "An error is not prejudicial if it did not influence the jury, or had but slight effect; however, if we cannot find with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, then it is prejudicial" (quotations omitted). Commonwealth v. Misquina, 82 Mass. App. Ct. 204, 207 (2012).

a. Vouching. The defendant claims that the prosecutor introduced his personal beliefs into his closing argument and improperly vouched for the victim's credibility when he used the phrase "I think" three times. It is improper for a prosecutor to express personal beliefs regarding testimony or to "vouch" for his witnesses. Commonwealth v. Sanders, 451 Mass. 290, 296-297 (2008). " 'Vouching' occurs when a prosecutor expresses his or her own belief in the credibility of witnesses or implies that he or she has knowledge independent of the evidence presented at trial." Commonwealth v. Kebreau, 454 Mass. 287, 304 (2009), citing Sanders, supra.

Although it would have been better to avoid the phrase "I think" in his summation, see Commonwealth v. Finstein, 426 Mass. 200, 205 n.1 (1997), the statement was immediately followed by the proper wording, "I would argue." The prosecutor's "use of the phrases 'I think' and 'I suggest' to preface some remarks did not, viewed in their proper context, imply that the prosecutor had personal knowledge or was stating a personal belief." Commonwealth v. Mitchell, 428 Mass. 852, 857 (1999). See Commonwealth v. Carney, 472 Mass. 252, 258 (2015).

Even if that was not readily apparent to the jury, the trial judge instructed the jury to disregard statements by counsel regarding his personal view of the strength of the evidence. Accordingly, any harm that may have accrued to the defendant by this comment was "sufficiently mitigated." Commonwealth v. Sylvia, 456 Mass. 182, 194 (2010).

b. Comment on posttraumatic stress disorder. The girl friend testified that she was diagnosed with posttraumatic stress disorder (PTSD), and that she had difficulty remembering traumatic events. The defendant now claims that it was improper for the prosecutor to argue in closing argument that the witness had difficulty remembering traumatic events due to PTSD, absent expert testimony regarding her diagnosis and the effects of PTSD.

The witness's testimony was introduced without objection, and in that sense the prosecutor was free to argue it. See Whitman, 453 Mass. at 345, quoting Commonwealth v. Guy, 441 Mass. 96, 110 (2004) ("Prosecutors must limit the scope of their closing arguments to facts in evidence and the fair inferences that may be drawn therefrom"). To the extent that there is any claim that the argument exceeded permissible bounds, the trial judge instructed the jury to disregard comments about the victim's PTSD and any effect that her professed diagnosis may have had on her memory. Accordingly, any harm that may have accrued to the defendant was ameliorated by the instruction, and the testimony would have had but very slight effect on the jury. See Sylvia, 456 Mass. at 194.

c. Quantity of evidence and comment on defendant's failure to testify. The defendant maintains that the prosecutor improperly argued that the jury should give more weight to the number of witnesses or volume of the Commonwealth's evidence than to the quality of that evidence. The challenged argument was made in direct response to defense counsel's closing argument, in which defense counsel described a so-called "he said, she said" case. In response the prosecutor stated, "So it's really not one side versus one side, it's one versus six sides almost in terms of evidence." The prosecutor then discussed in detail the ways in which five witnesses corroborated the girl friend's testimony. "[O]n balance, the prosecutor's remarks constituted permissible commentary on the [weight of the evidence and] the strength of the Commonwealth's case." Commonwealth v. Johnson, 463 Mass. 95, 113 (2012). To the extent it did not, the trial judge carefully instructed the jury to weigh the evidence by its strength rather than volume.

The defendant also claims that the prosecutor's argument improperly drew the jury's attention to the defendant's failure to testify. See Commonwealth v. Silanskas, 433 Mass. 678, 701 (2001) ("the Commonwealth may not comment on the defendant's failure to produce evidence"). As noted above, the prosecutor's closing focused on corroboration. "Our review of the record persuades us that ... the prosecutor's remarks ... did not cross over into burden shifting.... [T]he prosecutor did not focus the jury's attention on a specific element missing from the defense, nor did the prosecutor otherwise suggest to the jury -- either implicitly or explicitly -- that the defendant had an affirmative duty to counter the Commonwealth's evidence against him." Johnson, 463 Mass. at 113.

d. Reasonable doubt. The defendant contends that the prosecutor misstated the law by improperly defining reasonable doubt as "two things. It's doubt obviously, and then it's reasonable." The defendant claims that this misstatement of law materially shifted the burden of proof.

Insofar as the prosecutor's comments "tended to trivialize the concept of reasonable doubt," thus misstating the Commonwealth's burden of proof, they were improvident. Commonwealth v. Rupp, 57 Mass. App. Ct. 377, 385 (2003). See Commonwealth v. Morales, 461 Mass. 765, 783-784 (2012) (prosecutor misstated law by improperly suggesting that Commonwealth need not prove all elements of crime charged). The consequences of this error depend on "(1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusions." Id. at 784, quoting Commonwealth v. Perez, 444 Mass. 143, 151 (2005).

The defendant made a timely objection to the comment, and the judge properly instructed the jury on proof beyond a reasonable doubt. See Commonwealth v. Russell, 470 Mass. 464, 477-478 (2015). The trial judge gave accurate and thorough instructions on the presumption of innocence and the Commonwealth's burden of proof, emphasizing that the burden never shifts to the defendant. The jury are presumed to follow the judge's instruction. Morales, 461 Mass. at 784. See Commonwealth v. Francis, 450 Mass. 132, 142-143 (2007) (where prosecutor provided shorthand, inaccurate definition of law of criminal responsibility, judge's "extensive and accurate instruction on the law" cured error). "That the judge's final instruction did not include any express correction of the prosecutor's mischaracterization does not mean that the instruction was inadequate to cure any confusion caused by that mischaracterization." Commonwealth v. Dagley, 442 Mass. 713, 725 (2004). In view of the judge's instructions, we are confident that the prosecutor's misstatement did not influence the jury.

Judgment affirmed.

      The neighbor testified that she was awakened by "a very loud bang" from the defendant's living room, directly above her ceiling. She then heard a woman scream. She ran upstairs and looked through the windowpane in the defendant's front door. Through the windowpane, she saw the girl friend lying on the floor, apparently unconscious, as the defendant kneeled at her side with his arms down toward her face and chest. The neighbor entered the apartment and pushed the defendant off the girl friend.

      The judge instructed, "It would be improper if either of the attorneys seemed to imply that they knew whether a witness was telling the truth, and if they did, as you might have heard one of them say, you should totally disregard it.... If they discussed that based upon their personal belief, using ['] I believe this means that,['] you should disregard that ... it's for you to decide how the evidence adds up or how it doesn't add up."

      The judge told the jury, "[Y]ou should disregard any comments made about [the victim]'s PTSD and how it might affect her memory."


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Ralph ERILUS.
    18-P-851
    Appeals Court of Massachusetts.
    Entered: November 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Ralph Erilus, appeals from the denial of an assented-to motion to vacate his guilty plea on the basis of ineffective assistance of counsel. Specifically, he claims that when he pleaded guilty in January, 2017, his attorney did not advise him that the plea would subject him to virtually automatic deportation. He further asserted that if he had been informed of the consequences, as an almost life-long resident of the United States, he would have taken the risk of going to trial. The motion judge, who was also the plea judge, denied the motion, as well as a subsequent motion for reconsideration. The judge reasoned that because the evidence against the defendant was overwhelming and the defendant had violated the terms of probation by testing positive for drugs and alcohol, allowing the motions would not be in the interests of justice.

Because the defendant satisfied his burden to prove plea counsel's inadequacy and resulting prejudice under Padilla v. Kentucky, 559 U.S. 356 (2010), on November 2, 2018, we issued the following order: "The orders denying the defendant's motion to vacate conviction and the defendant's motion to reconsider denial of motion to vacate are reversed, and the judgment of conviction is vacated. Opinion to follow." This memorandum and order states the reasons for our order.

Background. A joint Federal-State police operation executed a search warrant at a Fitchburg address on October 28, 2016. As a result of the search, the defendant was arraigned in the District Court on October 31, 2016, on a criminal complaint charging possession of a Class B substance, crack cocaine, with intent to distribute, in violation of G. L. c. 94C, § 32A (a ), and conspiracy to violate the State controlled substances act, in violation of G. L. c. 94C, § 40.

Less than three months later, at the defendant's third court date on January 26, 2017, he pleaded guilty to the charge of possession with intent to distribute a Class B substance, and was sentenced to a term of probation. The Commonwealth dismissed the conspiracy charge. Ten months later, on November 21, 2017, while reporting to his probation officer at the Worcester County sheriff's station in Fitchburg, the defendant was taken into custody by the United States Immigration and Customs Enforcement (ICE).

On February 5, 2018, the defendant filed a "motion to vacate conviction" supported by his own affidavit, the affidavit of plea counsel, and the affidavit of his new counsel, an attorney who specializes in immigration law. In the motion, the defendant sought to withdraw his guilty plea and be granted a new trial. The Commonwealth assented to the motion and recommended that the judge enter a "guilty file[d]" disposition with respect to the charge of possession with intent to distribute.

The defendant stated in his affidavit that he was born in Haiti in 1976 and legally immigrated to the United States with his mother and four sisters at the age of seven to join his father, who had obtained United States citizenship. The defendant's entire family resided in the United States. He had no family left in Haiti, and any property the family owned there was destroyed by the earthquake in January, 2010. The defendant had two children, ages two and seven, and was responsible for them financially, even though they lived with their mothers. He was self-employed as an independent contractor installing satellite dishes throughout Worcester County for a television service provider.

Plea counsel stated in his affidavit that the extent of his advice to the defendant regarding immigration consequences was to review the Tender of Plea or Admission & Waiver of Rights form, known as the "green sheet," with the defendant, which states in general terms that a guilty plea "may have" various immigration consequences. The defendant added that when he asked plea counsel about the possibility of deportation mentioned in the standard immigration warnings, counsel "reassured [him] that as a life-long resident of the United States the chance of that outcome was slim to none."

In fact, the conviction that resulted from the defendant's guilty plea was an aggravated felony under Federal law, 8 U.S.C. § 1101 (a) (43) (B), and subjected the defendant to automatic deportation. The defendant averred that if he had been advised that his plea would result in his automatic deportation, he "would never, ever have pleaded guilty to this charge" and "would have staked it all and gone to trial regardless of the risk involved" rather than being separated from his sons and family and "barred from a country that is [his] home."

The judge held a nonevidentiary hearing on the motion on February 26, 2018. The defendant did not appear because he was in ICE custody, and ICE refused to transport him to the hearing or to allow him to participate by videoconference. At the hearing, the judge expressed concern about the procedure for acting on the Commonwealth's recommendation to file a guilty finding when the defendant was not present to consent, as required by Mass. R. Crim. P. 28 (e), 453 Mass. 1501 (2009). The judge also noted that the defendant had a pending probation violation warrant after testing positive for alcohol. Based on these factors, the judge concluded, "I don't think it's in the interest of justice to allow this motion," and denied it without prejudice.

At the hearing on the defendant's motion for reconsideration held on March 16, 2018, the judge continued to question how allowing the motion would advance the interests of justice. The judge had read the affidavit in support of the search warrant, which indicated that the defendant had sold drugs to a confidential informant on three occasions, and noted that the evidence against the defendant was "overwhelming." Defense counsel responded that under a recent United States Supreme Court decision, Lee v. United States, 137 S. Ct. 1958 (2017), a defendant facing certain deportation could rationally and credibly elect to go to trial, even in the face of overwhelming evidence. Nonetheless, citing the overwhelming evidence against the defendant -- although the judge allowed, "I know that's not the standard" -- and evidence that the defendant violated probation by using drugs and alcohol, the judge denied the motion for reconsideration as not being "in the interests of justice."

Discussion. A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992). "A judge may grant such a motion only 'if it appears that justice may not have been done.' " Id., quoting Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). "Judges are to 'apply the standard set out in Mass. R. Crim. P. 30(b) rigorously,' and should 'only grant a postsentence motion to withdraw a plea if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth.' " Commonwealth v. Hason, 27 Mass. App. Ct. 840, 844-845 (1989), quoting DeMarco, 387 Mass. at 486-487.

We review a judge's decision on a motion for new trial "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). "That discretion, however, 'is not boundless and absolute.' " Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015), quoting Commonwealth v. Genius, 402 Mass. 711, 714 (1988). "While we will not disturb a judge's subsidiary findings which are warranted by the evidence, 'ultimate findings and conclusions of law, particularly those of constitutional dimensions, are open for our independent review.' " Commonwealth v. Cousin, 478 Mass. 608, 615 (2018), quoting Commonwealth v. Walter, 396 Mass. 549, 553-554 (1986).

By relying entirely on the evidence of the defendant's wrongdoing and his conduct while on probation, and giving peremptory consideration to the elements of the defendant's claim of ineffective assistance under Padilla, the judge misapplied the rule 30 (b) standard. "In a new trial motion asserting ineffective assistance of counsel, whether justice may not have been done equates with whether counsel was constitutionally ineffective." Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 636 (2001). If the defendant can demonstrate ineffective assistance of counsel, then, by definition, "there has been prejudicial constitutional error ... and justice has not been done." Id. Accordingly, we turn to the merits of the defendant's Padilla claim.

To be entitled to relief, the defendant had the burden to show that plea counsel failed to give him adequate advice regarding the immigration consequences of his plea, and that he was prejudiced by that counsel's constitutionally deficient advice. See Padilla, 559 U.S. at 366-369 ; Commonwealth v. Sylvain, 466 Mass. 422, 437-438 (2013) ; Commonwealth v. Henry, 88 Mass. App. Ct. 446, 451-452 (2015).

Plea counsel's advice here was clearly inadequate. Possession with intent to distribute a Class B controlled substance is an aggravated felony under Federal law, see Commonwealth v. DeJesus, 468 Mass. 174, 181 (2014) ; Commonwealth v. Clarke, 460 Mass. 30, 32 n.2 (2011), and plea counsel was obligated to inform the defendant, in no uncertain terms, that "deportation would be practically inevitable." DeJesus, 468 Mass. at 181. It was not enough to say that a guilty plea might have immigration consequences. Id. ("Telling the defendant that he was 'eligible for deportation' and that he would 'face deportation' was not adequate advice"). Putting aside the defendant's assertion that plea counsel told him that the chances of deportation were "slim to none," plea counsel's affidavit on its face suffices to show that he failed to provide constitutionally adequate advice concerning the deportation consequences of pleading guilty. See Sylvain, 466 Mass. at 438.

In the context of a Padilla claim, the defendant has three avenues for demonstrating prejudice: he can show (1) that he had a viable defense to the charges, (2) a reasonable probability of negotiating a plea bargain that would not have exposed him to immigration consequences, or (3) "the presence of 'special circumstances' that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Henry, 88 Mass. App. Ct. at 455, quoting Clarke, 460 Mass. at 47-48. In the context of special circumstances, "a noncitizen defendant confronts a very different calculus than that confronting a United States citizen" when deciding whether to accept a guilty plea. DeJesus, 468 Mass. at 184. A noncitizen defendant may rationally risk going to trial, even when doing so involves a serious risk of a lengthy sentence and deportation, to retain a chance of avoiding automatic deportation. Id.

The Supreme Court has also recently recognized that it would not be irrational for a person in the defendant's position to reject a lenient plea offer in favor of a trial with a miniscule likelihood of acquittal. See Lee, 137 S. Ct. at 1968-1969. When "the respective consequences of a conviction after trial and by plea ... are, from the defendant's perspective, similarly dire, even the smallest chance of success at trial may look attractive." Id. at 1966.

Here, even if the case against the defendant was in fact overwhelming, the defendant's motion and affidavit amply demonstrated the presence of "special circumstances." At the time he pleaded guilty, in January of 2017, he had lived in the United States for over thirty years, since he was seven years old. His entire family lived in the United States, and his father, mother, and a sister were United States citizens. He had absolutely no ties to Haiti. He had steady employment in the Worcester County area. Most importantly, he was the father of two young children who were born in the United States and relied on him for financial support. His "claim that he would not have accepted a plea had he known it would lead to deportation is backed by substantial and uncontroverted evidence." Id. at 1969. See id. at 1968 (concluding that defendant had demonstrated prejudice by showing that at time of guilty plea he had lived in United States for nearly thirty years, had established two businesses, was sole caretaker of his elderly parents, who were both American citizens, and had no ties to South Korea, where he had not returned to since leaving as child); DeJesus, 468 Mass. at 184 (affirming order allowing motion for new trial where defendant had been in United States since he was eleven years old, his family was in Boston, and he had maintained steady employment in Boston area); Henry, 88 Mass. App. Ct. at 456 (remanding for further findings concerning defendant's relationship with children and grandchildren living in United States).

Conclusion. The orders denying the defendant's motion to vacate conviction and the defendant's motion to reconsider denial of motion to vacate are reversed, and the judgment of conviction is vacated.

So ordered.

Reversed in part; vacated in part.

      In light of the position it took in the trial court, the Commonwealth elected not to file a brief in this appeal.

      The defendant's affidavit focused on his ties to the United States at the time he signed the affidavit. The proper focus in the Padilla context is the time of the guilty plea. In this case, as the affidavit was written only one year after the plea, the relevant facts are not materially different.

      See Commonwealth v. DeJesus, 468 Mass. 174, 181 (2014) ; Commonwealth v. Clarke, 460 Mass. 30, 32 n.2 (2011).

      The defendant had previously been found in violation of probation after testing positive for cocaine.

      New counsel did point out that in the short time between arraignment and guilty plea, plea counsel did not challenge the propriety or execution of the search warrant.

      As the judge made no findings concerning the alleged special circumstances, we have supplemented the record with uncontroverted record evidence, mindful that we may not "engage in what amounts to independent fact finding in order to reach a conclusion of law that is contrary to that of a motion judge who has seen and heard the witnesses, and made determinations regarding the weight and credibility of their testimony." Commonwealth v. Jones-Pannell, 472 Mass. 429, 438 (2015). In this regard, the judge did not discredit the defendant's showing regarding his ties to the United States; indeed, the judge indicated that he was not "unsympathetic to [the defendant's] situation." The judge rejected the defendant's showing of prejudice based on a misapplication of the relevant legal standards, not based on any determination regarding the defendant's credibility.


text:
    Timothy BURKE, Trustee, v. BUILDING INSPECTOR OF TOWN OF DENNIS & Another.
    17-P-1016
    Appeals Court of Massachusetts.
    Entered: November 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the TVB Trust.

      Town of Dennis.

   On appeal the plaintiff Timothy Burke, trustee of the TVB Trust, challenges orders (1) denying his third motion to amend his complaint, and (2) granting summary judgment in favor of the town of Dennis and its building inspector on the ground that Burke had not demonstrated the existence of an actual controversy and, thus, that the Superior Court lacked subject matter jurisdiction under G. L. c. 231A, § 1. We affirm.

Background. Burke filed the original action on October 5, 2012. He was permitted to amend his complaint to add the town and its building inspector as defendants (town defendants), and to add a claim seeking a declaratory judgment, under G. L. c. 231A, § 1, that a cease and desist order dated June 7, 2001, prohibiting construction on the lot known as 23 Uncle Bill's Way (property), was unlawful. In October of 2015, Burke filed another motion to amend his complaint (October 2015 motion to amend), which sought to add a claim for declaratory judgment that the property was buildable, and to add constitutional claims against the town defendants. The judge denied the October 2015 motion to amend.

On October 13, 2016, the judge granted the town defendants' motion for summary judgment. At the time Burke added the town defendants, Burke did not have title to the property. Burke did not apply for a building permit, either himself or by having the then-owner apply, at any point before or during the litigation. Burke did not gain title until October, 2016, just prior to the summary judgment hearing.

Discussion. 1. Motion for summary judgment. We review a grant of summary judgment de novo. See Miller v. Cotter, 448 Mass. 671, 676 (2007). A party may seek a declaratory judgment "in any case in which an actual controversy has arisen." G. L. c. 231A, § 1. An actual controversy does not exist where one fails to pursue available administrative remedies. See Wrentham v. West Wrentham Village, LLC, 451 Mass. 511, 514 (2008) ; Marion v. Massachusetts Hous. Fin. Agency, 68 Mass. App. Ct. 208, 210 (2007) ("As a general rule, where an administrative procedure is available, we require a party seeking declaratory relief first to exhaust the opportunities for an administrative remedy" [quotation omitted] ).

Within the zoning context, no actual controversy exists where a permit granting authority "has not had the opportunity either to deny the permit, or even to threaten to deny it." Stop & Shop Cos. v. Board of Registration in Pharmacy, 394 Mass. 1008, 1008 (1985).

Pursuant to G. L. c. 40A, there is a clear administrative process that an individual must utilize before seeking declaratory judgment. See Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17, 20 (1985) ("The statutorily required submission of zoning disputes to local authority is so central to the architecture of G. L. c. 40A that we have required the exhaustion of administrative remedies as a prerequisite to judicial review"). A person unable to obtain a building permit may appeal to the permit granting authority and a "person aggrieved" by the permit granting authority may seek judicial review in the Land Court or the Superior Court. G. L. c. 40A, §§ 8, 17.

First, Burke argues that an actual controversy exists because the town defendants (town) admitted that the property was unbuildable during discovery; thus, Burke claims he did not need to exhaust any administrative remedies. We disagree. While the town did take the position during the litigation that on the present record, the property was unbuildable, that is not necessarily the conclusion the town would reach if Burke applied for a permit. Indeed, at the summary judgment hearing, defense counsel stated that the town's contention that the property was unbuildable was based on the information presently available, but that the building permit application could bring to light new information, which could lead to a different outcome. Contrary to Burke's contention, based on the record, we cannot predict the conclusion the town may reach upon review of Burke's building permit application. Accordingly, the town's admission did not relieve Burke of his duty to exhaust the administrative remedies under G. L. c. 40A, §§ 8, 17, which include providing the town with an opportunity to consider Burke's application. See Stop & Shop Cos., 394 Mass. at 1008 ; Quincy, 39 Mass. App. Ct. at 20.

Second, to the extent Burke argues that there were no administrative remedies available to him because he had no legal basis to apply for a building permit unless he took title to the property and the outstanding real estate taxes were paid, that is not correct. During discovery, the town defendants admitted that Burke could not receive a building permit until he took title and the real estate taxes were paid, but neither defendant contended that Burke would have been prohibited from submitting an application or receiving a determination of buildability (and, if the lot was buildable, receiving a permit conditioned on payment of the outstanding taxes). See G. L. c. 40, § 57 (c ). Since Burke did not apply, we cannot know whether the town would have considered the application in spite of the outstanding taxes. Accordingly, we conclude that Burke had and has available to him administrative remedies pursuant to G. L. c. 40A, §§ 8, 17.

Further, each of the cases to which Burke cites in his briefs are distinguishable. Primarily, the cited cases contemplate circumstances where a party applied or intended to apply for a building permit and possessed no viable administrative remedies, which led the court to find that there was an actual controversy. See, e.g., Woods v. Newton, 349 Mass. 373, 374, 376 (1965). In this case, Burke failed to apply for a building permit and, as we noted above, Burke had an administrative path available to him.

2. Motion to amend the complaint. Burke also challenges the judge's denial of his October 2015 motion to amend his complaint to add additional claims against the town defendants. When Burke filed his October 2015 motion, the case had already been pending for three years, Burke had been granted leave to amend his complaint only one year previously, and, as the judge noted, Burke did not adequately explain why he could not have brought his two new proposed claims earlier. Moreover, the additional claims proposed in Burke's October 2015 motion are premised on the assumption that the town defendants are unwilling to allow Burke to develop the property as he wishes. As discussed above, the record before us does not support that assumption. The judge did not abuse his discretion in denying the motion to amend. See Mathis v. Massachusetts Elec. Co., 409 Mass. 256, 264 (1991).

In any event, we take judicial notice of the Superior Court action filed in Burke, trustee vs. Building Inspector of Town of Dennis, No. 1672CV00054 (Burke II ). See note 4, supra. After the judge denied Burke's October 2015 motion to amend, Burke commenced Burke II, alleging the same claims and underlying circumstances as were proposed in Burke's October 2015 motion to amend. A judgment dismissing Burke II entered on January 31, 2018, and on March 14, 2018, Burke's appeal from that judgment entered in this court under docket no. 18-P-351. Accordingly, the claims at issue in Burke's October 2015 proposed amended complaint are before this court separately.

Judgment affirmed.

Order denying motion to alter or amend judgment affirmed.

      Burke's complaint and the trial court docket refer to the town official as the building inspector; however, materials in the record refer to the official's title as building commissioner.

      In his notice of appeal, Burke indicated that he was also challenging orders denying his motion to consolidate with civil action no. 1672CV00054 (Burke II ) and denying his motion to alter or amend the summary judgment. On appeal, Burke raised no argument regarding those orders; thus, we deem those issues waived. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975).

      Burke waived his claim against one of the original defendants, the Department of Revenue, on December 22, 2014. The other original defendant, Gregory Drake, died after Burke commenced the action; the personal representative of Drake's estate was substituted in his place and a separate default judgment entered against her. That separate judgment is not at issue here.

      Moreover, providing the town with an opportunity to consider an application is not only for the town's benefit. General Laws c. 40A, § 8, also provides an avenue for an interested party such as an abutter to challenge the issuance of a building permit. See Butts v. Zoning Bd. of Appeals of Falmouth, 18 Mass. App. Ct. 249, 253 (1984) (abutter is "person aggrieved" under G. L. c. 40A, § 8, and has standing to file appeal with zoning board of appeals because he has "a legitimate interest in the board's proceedings").

      We assume Burke is referring to outstanding local taxes, as the State and Federal tax liens on the property either expired or were released by January 24, 2013.

      Had Burke applied for a permit and the town denied him an administrative process by refusing to make a determination of buildability until Burke paid the tax debt incurred by the owner, we might well reach a different outcome.

      Similarly distinguishable are Burke's cited cases construing State election laws and the scope of regulatory powers over State waters, respectively. See Libertarian Ass'n of Mass. v. Secretary of the Commonwealth, 462 Mass. 538, 546-549 (2012) ; Entergy Nuclear Generation Co. v. Department of Envtl. Protection, 459 Mass. 319, 324-328 (2011).

      Now that Burke has gained title to the property, he possesses two remedies: (1) pursue the administrative procedures provided for by G. L. c. 40A, §§ 8, 17, or (2) commence an action in the Land Court under G. L. c. 240, § 14A.


text:
    COMMONWEALTH v. David R. THOMPSON.
    18-P-79
    Appeals Court of Massachusetts.
    Entered: November 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant, David R. Thompson, was convicted of two counts of armed robbery and one count of malicious destruction of property. In his direct appeal, he argued that his case should have been dismissed in light of the time requirement of art. III of the Interstate Agreement on Detainers (IAD), which mandates a trial within 180 days of receipt of an IAD request absent good cause for a delay. Concluding that there was good cause, we affirmed. See Commonwealth v. Thompson, 80 Mass. App. Ct. 1117 (2011). Thereafter, the defendant filed a motion for a new trial, claiming that trial counsel was constitutionally ineffective in relying principally on the IAD timeline. A Superior Court judge denied the motion in a thorough, well-reasoned opinion. We affirm.

Background. We summarize the evidence that the Commonwealth presented at trial as follows. In July, 2005, the defendant, armed with a crowbar, forced his way into a CVS Pharmacy in Georgetown in search of prescription pain mediation, and smashed the surveillance cameras, cash registers, and other property. The items that he stole included various pharmaceuticals, syringes, and cash (including rolled coins). During the robbery, he assaulted one CVS employee with a crowbar, stood on him, and threw him on the floor. The defendant also pushed another CVS employee (a manager) to force his way into the store, pulled her arm, and threatened her when she told him she could not access the prescription pain medication he sought. He forced both employees to move a safe that held controlled substances into his white Buick Rendezvous truck. Before driving away, the defendant threw the manager against the building, injuring her. The robbery was captured by surveillance video. Responding police officers found a sweatshirt along the main road; it matched the robber's clothing. Subsequent deoxyribonucleic acid (DNA) testing of a sample from the sweatshirt determined that the DNA mixture included the defendant's DNA as a major profile.

The day after the robbery, the defendant was arrested on unrelated charges in Maine. He was driving a white Buick Rendezvous. Georgetown police officers traveled to Maine, where they seized and searched the vehicle. In it, they found rolled coins, syringes, black leather gloves similar to those worn by the robber, and a wallet that contained the defendant's license.

Following the defendant's transfer from Maine to Massachusetts pending trial, the defendant wrote letters to a third party and placed calls from prison in which the defendant expressly implicated himself in the robbery by relating details of the crime including his attire, and his plot to "beat" the surveillance video and DNA evidence.

The defense strategy, which the defendant himself suggested to trial counsel, centered principally on exploiting the IAD time requirement. In particular, on June 16, 2008, the defendant (who was a prisoner in Maine at the time) mailed an IAD request to the District Court. This triggered the start of the 180-day IAD timeline on June 23, which (absent good cause shown) expired on December 22, 2008. At the arraignment, trial counsel pressed for an immediate trial. The Commonwealth sought an extension of time to conduct the aforementioned DNA testing, which was granted. Thereafter, the Commonwealth sought additional extensions of time related to the DNA testing. Trial counsel opposed all continuances, pressing for trial each time. The Commonwealth's request for extensions were allowed.

Prior to trial, trial counsel moved to dismiss in view of the 180-day limit under the IAD. The motion was denied.

During the bench trial that followed, trial counsel waived an opening statement. He cross-examined each of the Commonwealth's witnesses, including the CVS employees from whom he elicited testimony that called into question the ability of these witnesses to identify the defendant as the assailant. Trial counsel successfully excluded the in-court identification of the defendant by the CVS manager on the basis that she had not performed an out-of-court identification and her in-court identification was too suggestive. He also successfully objected to the trial judge conducting a voir dire of a witness who asserted his Fifth Amendment to the United States Constitution privilege. Trial counsel cross-examined the witness who recovered the defendant's car in Maine, eliciting testimony that the witness found neither the CVS safe nor the crowbar in the car and that he failed to conduct any fingerprint analysis of the items he did find. Trial counsel sought to exclude the jail calls and the defendant's written letters and when his efforts were unsuccessful, he cross-examined the witness who recovered the letters, establishing that the letters were unsigned and the search warrant for the letters was incorrectly dated. Because the defendant directed him not to do so, trial counsel did not do a closing argument. As discussed supra, the defendant's convictions were affirmed on direct appeal, his motion for a new trial was denied, and this appeal followed.

Discussion. We review the denial of a motion for a new trial claiming ineffective assistance of counsel by applying the familiar two-part test to determine: (1) whether the defendant has demonstrated "serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," and (2) whether counsel's poor performance "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where, as here, the defendant challenges the tactical judgment of counsel, we require a showing that the judgment is "manifestly unreasonable." Commonwealth v. Hurley, 455 Mass. 53, 70 (2009), quoting Commonwealth v. Gonzalez, 443 Mass. 799, 809 (2005).

IAD strategy. The defendant first suggests that trial counsel's execution of the IAD strategy was manifestly unreasonable because, although he opposed the Commonwealth's continuance requests and stood ready for trial at all times, he waived the IAD timeline by failing to "flag" it, which (according to the defendant) the Supreme Judicial Court's decision in Commonwealth v. Copson, 444 Mass. 609 (2005), required him to do. The court in Copson did not hold that an inmate waives the 180-day time limit if he fails to flag it; instead, the case concerned the inmate's obligation to ensure the receipt of all the information listed in art. III(a) of the IAD, including a certificate of the inmate's status, in order to trigger the start of the IAD timeline. See id. at 618. While we do not condone trial counsel's failure to disclose, even if the defendant had alerted the trial judge of the IAD timeline, there was good cause for the continuances requested by the Commonwealth. See Thompson, 80 Mass. App. Ct. at 1117. Thus, the defendant suffered no prejudice from counsel's failure to flag the issue expressly.

Perhaps recognizing this, the defendant next contends that the IAD strategy itself "had no chance of success" and thus was manifestly unreasonable. However, the strategy might have succeeded had the Commonwealth sought continuances for which good cause was lacking. See, e.g., United States v. Mauro, 436 U.S. 340, 364-365 (1978) (affirming dismissal for violation of IAD time limit where defendant persistently requested speedy trial, even though he did not expressly invoke IAD provisions). Moreover, given the overwhelming evidence of the defendant's guilt, see discussion supra, focusing on the IAD timeline -- a strategy that the defendant insisted on pursuing -- was not unreasonable.

Importantly, once the defendant's motion to dismiss on the basis of the IAD timeline was denied, trial counsel was substantially engaged in defending his client. For example, he filed motions in limine, effectively excluded identification evidence on the basis of the suggestiveness of the in-court identification, cross-examined the Commonwealth's witnesses, successfully requested that another judge address a Fifth Amendment issue with one of the witnesses to avoid tainting the trial judge, and raised questions about witnesses' ability to identify the defendant and the police identification procedures.

The defendant criticizes trial counsel for failing to file pretrial motions or to retain a DNA expert. Doing so, however, would have delayed the time to trial and worked against the strategic choice to pursue the IAD strategy. See Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979) ; Commonwealth v. Bernier, 359 Mass. 13, 19 (1971). Further, the defendant fails to indicate what opinion a DNA expert would have given to counter the Commonwealth's evidence, which pretrial motions should have been filed, or how such strategies would have led to a different result. See Commonwealth v. Amirault, 424 Mass. 618, 652 (1997) ; Commonwealth v. Schlieff, 5 Mass. App. Ct. 665, 668 (1977).

The defendant additionally contends that trial counsel should have negotiated a plea deal. However, the defendant does not show that the Commonwealth would have been interested in a plea or that any such plea would have resulted in a better sentence for the defendant. See Commonwealth v. Marihno, 464 Mass. 115, 129-130 (2013).

Trial counsel's statements. However, we agree with the defendant that two of trial counsel's statements to the judge, made during a side bar before the close of the evidence, meet his burden under prong one of Saferian. Specifically, after the defendant's jail calls and letters were admitted in evidence, trial counsel stated, "I don't know if you want to speed this up, I mean once Your Honor reads the letters and listens to the trial, I mean there's no defense." Continuing, trial counsel stated, "I assume we'll just get right into sentencing. I'm not trying to ...." These statements, suggesting as they did, a concession of the defendant's guilt, demonstrate "serious incompetency," constituting "behavior falling measurably below that which might be expected from an ordinary fallible lawyer." Saferian, 366 Mass. at 96.

We turn then to prong two of the Saferian test to determine whether these statements prejudiced the defendant. We conclude that they did not. Specifically, this was a bench trial. We assume that the judge is familiar with the law and did not permit himself to be influenced by these statements. See Commonwealth v. Collado, 426 Mass. 675, 678-679 (1998). Indeed, the judge admonished trial counsel immediately following the statements, stating that he was taking his role as fact finder seriously and noting that he had not yet heard all of the evidence, including the recordings of the jailhouse calls. Furthermore, the evidence of the defendant's guilt was overwhelming. As set forth supra, it included eyewitness statements and identification of the defendant as the assailant, the defendant's major profile matching the DNA on the sweatshirt worn by the assailant, the recovery of items taken from the CVS from the defendant's car, the surveillance video of the robbery, and the defendant's jailhouse admissions. On this record, the defendant has not met his burden under prong two of the Saferian test. See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

Order denying motion for new trial affirmed.

      A gas station attendant saw someone wearing the sweatshirt moments before the robbery; the person, who resembled the defendant, was getting gasoline for a white Buick Rendezvous a short distance from the CVS.

      The defendant's reliance on Reed v. Farley, 512 U.S. 339 (1994), fares no better. Reed concerns the availability of habeas corpus relief under 28 U.S.C. § 2254 for a defendant who never objected to the trial date and suffered no prejudice therefrom. See id. at 352. Nor can the defendant rightly fault trial counsel for not being aware of the decision in United States v. Dowdell, 595 F.3d 50, 64-65 (1st Cir. 2010) (explaining that defendant, who requested multiple continuances, waived his right to enforce IAD timeline where he first raised issue on appeal), which did not issue until after the trial in this matter.

      These continuances were principally related to the need to obtain a buccal swab from the defendant and complete DNA testing.

      Counsel controlled as much of the timeline as he could by not seeking any delays himself and reporting that he was ready for trial at all times.

      Indeed, even without the DNA evidence, the evidence of the defendant's identity was substantial.

      The defendant also notes that trial counsel waived opening statements and closing arguments. The waiver of an opening statement, especially given that this was a bench trial, does not meet the defendant's burden on prong one of Saferian. See Commonwealth v. Cohen, 412 Mass. 375, 391 (1992). The defendant requested that trial counsel not provide any closing argument.


text:
    Marie ESLER v. Mary SYLVIA-REARDON & Another.
    17-P-1617
    Appeals Court of Massachusetts.
    Entered: November 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Massachusetts General Hospital.

   The plaintiff, Marie Esler, secured a favorable judgment against the defendants after a lengthy litigation process. Although Esler failed to request attorney's fees immediately after the trial in Superior Court, she filed a petition for trial attorney's fees and costs once her award was assured. Esler now argues that the Superior Court judge abused her discretion in denying that petition. We agree and reverse.

Background. We summarize the procedural history in some detail. Esler was hired in 2003 by Massachusetts General Hospital (MGH) as a registered nurse. After Esler took consecutive leave periods in 2008-2009 under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. (2012) (FMLA), her supervisor, Mary Sylvia-Reardon, hired another nurse to take Esler's position.

On March 11, 2010, Esler filed a complaint against Sylvia-Reardon and MGH in Superior Court, alleging claims including discrimination, retaliation for taking FMLA leave, wrongful discharge, breach of contract, tortious interference, and infliction of emotional distress. In the complaint, Esler included a request for costs and attorney's fees. The FMLA count was the only claim to survive motions to dismiss and for summary judgment, and a jury trial on that count began on June 10, 2013. The jury returned a verdict in Esler's favor on June 13, 2013, and judgment was entered on June 18, 2013, awarding Esler $567,500 in back pay and $672,686 in front pay.

On July 9, 2013, the defendants filed a motion for judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial. Esler filed an opposition to the motion, which included a request for attorney's fees stemming from the opposition. The judge granted the JNOV motion, overturning the jury's verdict, and judgment for the defendants was entered on September 27, 2013. The judge's decision did not address the request for new trial.

Esler appealed, and a panel of this court issued an unpublished decision under our rule 1:28 on February 27, 2015, reinstating the back pay award to Esler, affirming the judge's rejection of front pay, and concluding that the judge "took no action on" the new trial motion. Esler v. Sylvia-Reardon, 87 Mass. App. Ct. 1107 (2015). On March 13, 2015, Esler filed separate petitions in this court for appellate and trial attorney's fees and costs. This court stayed action on both petitions after the Supreme Judicial Court (SJC) allowed Esler's application for further appellate review.

The SJC issued an opinion on March 9, 2016, affirming on the issue of front pay, reversing on the issue of back pay, and remanding "the case to the Superior Court for further proceedings with respect to the defendants' alternative request for a new trial." Esler v. Sylvia-Reardon, 473 Mass. 775, 782-783 (2016). Esler subsequently submitted a series of petitions to the SJC, seeking trial attorney's fees and SJC appellate fees, and to "renew" the fee petitions under stay in this court. On July 22, 2016, the SJC denied the trial court and SJC fee petitions without prejudice, and took no action on the request to renew the petitions in this court. In denying the SJC petition the court reasoned that, in light of the remand order, it "[could not] say with certainty that the plaintiff has emerged as the prevailing party on her FMLA claim." Regarding the petition for trial fees, the SJC observed:

"The appropriate forum for such a request is the Superior Court. See T & D Video, Inc. v. City of Revere, 450 Mass. 107, 116 (2007). We express no opinion as to the timeliness or reasonableness of any such request that may be filed. Those issues, and any claims or defenses that might be raised, including issues of waiver, may be litigated in the Superior Court."

When the judge denied the motion for new trial on August 10, 2016, and the defendants chose not to appeal, Esler's status as prevailing party was cemented. On September 8, 2016, Esler filed a "motion for status" in this court regarding the two fee petitions that had been stayed. Esler also submitted fee petitions to the Superior Court and to the SJC.

Esler's appellate fee petitions were successful. We awarded Esler attorney's fee and costs on December 1, 2016, and the SJC did the same on March 7, 2017. We declined to act on Esler's fee petition "associated with the proceedings below.... [T]hose fees are best considered in the trial court, where we understand Esler has already filed a petition for fees."

The judge held a hearing on Esler's fee petitions on October 20, 2016, and issued a memorandum of decision and order on December 28, 2016. The trial fee petition was deemed waived and denied for "failing to petition [the judge] for attorney's fees at trial or by way of a post-trial motion." The judge relied on T & D Video, Inc., 450 Mass. at 115-116, as establishing "a procedure for seeking counsel fees (both trial court fees and interlocutory appellate fees) under federal fee-shifting statutes such as the FMLA." The judge also cited other jurisdictions' "standard of promptness and reasonableness ... so as to prevent fragmented appellate review and unfair postjudgment surprise or prejudice." Additionally, the judge cited Esler's failure to raise the fee request in her complaint with "appropriate particularity" and her lack of "justification for the delay in seeking trial fees." Esler timely appealed from the order denying her trial fee petition.

Discussion. The single matter before us is the judge's determination that Esler waived her right to collect trial attorney's fees under the FMLA. Decisions on requests for attorney's fees are reviewed for an abuse of discretion. See Beninati v. Borghi, 90 Mass. App. Ct. 556, 568 (2016). Abuse of discretion occurs where a "judge made a 'clear error of judgment in weighing' the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Since we conclude that no judicial or procedural rule governs the timeliness of the fee petition at issue, and since the filing delay was not unreasonable given the complexities and procedural history of this case, we reverse.

When a plaintiff is awarded a judgment under the FMLA, the court "shall ... allow a reasonable attorney's fee ... and ... costs of the action to be paid by the defendant." 29 U.S.C. § 2617(a)(3) (2008). A plaintiff is considered a "prevailing party" under Federal fee-shifting statutes like the FMLA when there is a "material alteration of the legal relationship of the parties" (quotation omitted). Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Resources, 532 U.S. 598, 604 (2001). In Massachusetts, the timeliness of an attorney's fee petition under a Federal civil rights statute is a question of State law. Society of Jesus of New England v. Boston Landmarks Comm'n, 411 Mass. 754, 756 (1992) (Society of Jesus ). However, there is no specific procedural rule in Massachusetts that addresses the timely filing of fee petitions in the trial court. See id. at 756-757 ("The determination of timeliness is ... within the discretion of this court"). Generally, courts will ask whether the delay creates an unfair surprise or prejudices the other party. See White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445, 454 (1982) ; Dugan v. Board of Selectmen of Dartmouth, 413 Mass. 641, 643 (1992).

Here, notwithstanding the judge's thoughtful memorandum of decision, T & D Video, Inc. does not establish a procedure for seeking noninterlocutory trial court fees. The rule outlined in T & D Video, Inc. applies to the timeliness of requests for interlocutory appellate attorney's fees under Federal fee-shifting statutes. See T & D Video, Inc., 450 Mass. at 116. Likewise, the other cases cited by the judge in support of waiver are not controlling when the defendant has notice that attorney's fees will be sought by the plaintiff. The SJC has made the same distinction when determining the timeliness of a fee petition in a Federal civil rights case. See Society of Jesus, 411 Mass. at 757 ("[Those cases] involve instances where no notice of the [prevailing parties'] claims for fees was given until after judgment. That element is lacking here" [emphasis in original] ).

Because we conclude that the defendants here received at least some notice that the fee issue would be raised, we do not think that Esler's fee petition was so unreasonably delayed as to constitute waiver. It is important to note that Esler did not idly stand by in her pursuit of attorney's fees. Soon after the entry of the initial judgment in her favor, her status as prevailing party was challenged and she was forced to respond to the JNOV motion. The grant of that motion revoked Esler's prevailing party status and nullified any impulse she may have had to file her petition earlier. When we reversed a portion of the JNOV in 2015, Esler submitted a petition for her trial court fees to this court, but remained unaware she had filed in the wrong court. It was only when the SJC denied her renewed petition for trial court fees that she was given notice of her obligation to file the fee petition in the Superior Court. Even then, the SJC had already remanded the question of a new trial to the Superior Court, which again threatened to nullify the jury's verdict. Esler's monetary award was only secure and final when the motion for new trial was denied and the defendants did not appeal. Esler filed the subject petition within thirty days of that denial. As a result, given the way the core issues of this case have been parsed throughout the appellate process, we cannot say that Esler's petition was unduly delayed.

Nor do we think that the defendants would have suffered unfair surprise or prejudice, since the FMLA places the defendants on notice that fees "shall" be awarded, and Esler has pursued attorney's fees and costs at multiple stages of the litigation. She requested attorney's fees in the initial complaint. See Society of Jesus, 411 Mass. at 757-758. She also moved for attorney's fees in her response to the JNOV motion, at the culmination of each level of appeal, and after the denial of the defendants' motion for new trial. See Dugan, 413 Mass. at 643 ; Society of Jesus, supra. To the extent the defendants claim that Esler's delay in filing her fee petition prejudices potential settlement discussions or impedes "the judge's ability to assess, from firsthand observation, the fair value of [the trial attorney's] services," there is no evidence in the record regarding either claim. Contrast Baird v. Bellotti, 724 F.2d 1032, 1034-1037 (1st Cir.), cert. denied, 467 U.S. 1227 (1984) (discussion of unfair prejudice when filing of motion for attorney's fees was delayed). Here, even if Esler had filed her fee petition soon after the jury verdict, the judge very likely would have delayed ruling on that petition, given the pending JNOV. The JNOV was reversed in part by this court seventeen months later. Nevertheless, even if we assume some minimal prejudice exists, on these facts, we believe it to be outweighed by the strong public policy undergirding the award of attorney's fees provided for in the statute. See Riverside v. Rivera, 477 U.S. 561, 575-579 (1986).

Because there is no set rule governing the timeliness of the trial fee petition at issue here, and because we do not agree that Esler's petition unfairly surprised or prejudiced the defendants, the denial of the trial fee petition is reversed. Accordingly, we remand the matter to the Superior Court for proceedings consistent with this memorandum and order.

Esler's request for attorney's fees and costs associated with this appeal is allowed. Within fourteen days of the date of the rescript, Esler may submit a petition for attorney's fees and costs, along with the necessary supporting materials. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The defendants may have fourteen days thereafter to file their response.

Paragraph 1 of the order dated December 28, 2016, is reversed and the matter is remanded for further proceedings consistent with this memorandum and order. Paragraph 2 of the order is affirmed.

      Esler's attorneys filed two petitions for fees and costs in Superior Court after the motion for new trial was denied. One petition was filed by Esler's trial attorney (trial fee petition). A separate petition was filed by the attorneys who represented Esler in opposing the motion for new trial on remand (new trial motion fee petition). The judge ruled on all the petitions in an order dated December 28, 2016, denying the trial fee petition in paragraph 1, and allowing in part and denying in part the new trial motion fee petition in paragraph 2. Only the judge's ruling denying the trial fee petition (paragraph 1 of the order) is before us, and we need not discuss her ruling in paragraph 2.

      Federal courts have held that an award of attorney's fees is mandatory if the plaintiff, as here, wins a favorable judgment under the FMLA. See Clements v. Prudential Protective Servs., LLC, 659 F. App'x 820, 825 (6th Cir. 2016) ; Marez v. Saint-Gobain Containers, Inc., 688 F.3d 958, 965 (8th Cir. 2012) ; Franzen v. Ellis Corp., 543 F.3d 420, 430 (7th Cir. 2008) ; McDonnell v. Miller Oil Co., 134 F.3d 638, 640 (4th Cir. 1998).

      See Walsh v. Boston Univ., 661 F. Supp. 2d 91, 94 (D. Mass. 2009) ("Under [FMLA], fee-shifting is the law, not the exception, so long as the prerequisites of [Buckhannon Bd. & Care Home, Inc.] are met").

      We leave for another day whether the framework outlined in T & D Video, Inc. could feasibly work if extended to noninterlocutory orders and judgments.

      See T & D Video, Inc., 450 Mass. at 113 ("We first address the appropriateness of awarding T & D its interlocutory appellate attorney's fees and costs under 42 U.S.C. § 1988 [b], and then outline the procedure for the request for, and award of, such fees and costs in the future"). See also id. at 115 ("We now clarify the procedure for parties seeking interlocutory appellate attorney's fees and costs under 42 U.S.C. § 1988 [b] and similar Federal fee-shifting statutes").

      The judge cited T & D Video, Inc., 450 Mass. at 115-116 ; Milton v. Civil Serv. Comm'n, 365 Mass. 368, 379 (1974) (effect of consent decree, not raised in trial court, could not "be raised for the first time before this court"); and Karaa v. Yim, 86 Mass. App. Ct. 714, 724 (2014) (there was no indication in record that plaintiff introduced any evidence of attorney's fees at trial or via posttrial motion), in support of her ruling that Esler waived her right to attorney's fees by failing to submit a petition "at or near the time of the verdict."

      The issue of "unfair prejudice" was addressed briefly at oral argument and in a single sentence of the defendants' brief, with two accompanying footnotes.


text:
    Joseph M. PRZYJEMSKI & others v. Paul J. PRZYJEMSKI.
    18-P-227
    Appeals Court of Massachusetts.
    Entered: November 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      John C. Day and Charles J. Przyjemski.

   The defendant, Paul J. Przyjemski, appeals from the order denying his motion to vacate a judgment entered in the Probate and Family Court on an equity complaint concerning certain parcels of real estate.

Background. This dispute arose among four brothers over two parcels of real estate. The first parcel is recorded land located at 84 Cliffe Avenue in Lexington. The second parcel is an adjacent lot that is registered land. The parcels were owned by the brothers' mother, Marcella Przyjemski. In 1999 and 2000, following her husband's death, Marcella conveyed the properties to Paul. Sometime thereafter, Marcella executed a will that purported to retain a life estate in the properties for herself and to create a trust for the benefit of her four children. Marcella passed away approximately five years later. Her estate was not probated. In 2016, the plaintiffs filed a complaint in equity seeking, inter alia, the imposition of a resulting trust, the sale of the properties, and distribution of the net proceeds. The complaint and summons were served on Paul at his last and usual place of abode and by first class mail (to the same address), both by a process server. Paul failed to answer the complaint and did not appear for any court hearings despite a scheduling order that provided that if Paul did not appear, "the case will go to judgment." Thereafter, judgment entered; it was docketed on January 31, 2017. The judgment, in essence, mirrored the proposed language set forth in the plaintiffs' motion for default judgment. In March of 2017, Paul filed a motion to vacate the judgment which, after notice to all parties, was denied in a margin notation. This appeal followed.

Subject matter jurisdiction. Paul argues that the Probate and Family Court did not have subject matter jurisdiction over the adjacent lot because it is registered land. We agree. "Subject matter jurisdiction cannot be conferred by consent, conduct or waiver" and therefore may be raised for the first time on appeal. Litton Business Sys., Inc. v. Commissioner of Revenue, 383 Mass. 619, 622 (1981). The Land Court has exclusive original jurisdiction over complaints affecting title to registered land, with certain exceptions which are not relevant here. See G. L. c. 185, § 1 (a 1/2). Accordingly, the Probate and Family Court judge could not "fashion a judgment which has the effect of imposing an encumbrance on the registered title." Feinzig v. Ficksman, 42 Mass. App. Ct. 113, 116 (1997). See G. L. c. 185, § 86. Because the resulting trust is an encumbrance on registered land, so much of the judgment as relates to the adjacent parcel must be vacated.

Motion to vacate judgment. Paul sought to vacate the judgment contending that he "never received a copy of the complaint." His motion is tantamount to a motion filed pursuant to Mass. R. Civ. P. 60 (b) (1), 365 Mass. 828 (1974). We review the denial of a rule 60 (b) motion for an abuse of discretion. See Hermanson v. Szafarowicz, 457 Mass. 39, 48 (2010).

To obtain relief under rule 60 (b), "a party must show both a good reason to remove the default and also the existence of meritorious claims or defenses." Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 806 (2002). Regarding the "good reason," id., a party must show "mistake, inadvertence, surprise, or excusable neglect." Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 429 (1979). For a mistake or neglect to be excusable, it cannot have been the result of the party's own carelessness. Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 228 (1979).

Here, Paul claims that he uses multiple addresses for extended periods of time, he was not served in hand, his brothers did not tell him of the complaint, and perhaps most notably, he "rarely checks his mail." None of these contentions serves as a basis to vacate the judgment on the grounds of mistake, neglect, or inadvertence. Hermanson, 457 Mass. at 46-48. Accordingly, the judge did not abuse her discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Conclusion. The order denying the motion to vacate the judgment is vacated. A new order shall enter vacating paragraph ten of the judgment, vacating so much of the judgment that pertains to the registered land, and affirming the remainder of the judgment.

So ordered.

vacated in part; affirmed in part

      As many of the parties share a surname, we use their first names to avoid confusion.

      The process server used an address in Carlisle where Paul spent significant time with his girl friend. In addition, Paul had a post office box in Arlington. A certified mail receipt from the United States Postal Service was marked "Refused" from mail sent to the post office box.

      At oral argument, both parties agreed that the resulting trust constituted an encumbrance on the adjacent lot.

      Notwithstanding, paragraph ten of the judgment must be vacated because it prohibits Paul's rights of access to the courts. See Hanover v. New England Regional Council of Carpenters, 467 Mass. 587, 594 n.9 (2014). See also Ventrice v. Ventrice, 87 Mass. App. Ct. 190, 192-194 (2015).

      The plaintiffs' request for appellate attorney's fees and double costs is denied.


text:
    COMMONWEALTH v. Zulfiquar SYED.
    18-P-250
    Appeals Court of Massachusetts.
    Entered: November 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   This is a consolidated appeal by the defendant, Zulfiquar Syed, from his convictions, after a trial by jury, of assault and battery on a family or household member, G. L. c. 265, § 13M (a ), and threatening to commit a crime, G. L. c. 275, § 2, and from an order denying his motion for a new trial.

Background. 1. Trial. The case was set down for trial on April 14, 2015. After the Commonwealth answered ready, a judge other than the trial judge, allowed the defendant's court-appointed attorney to withdraw from the case. Attorney Larry Colby was appointed to represent the defendant. Three months later, on July 20, 2015, the case was called for trial again. Attorney Colby informed the judge that the defendant wanted time to obtain private counsel. The judge noted that the defendant had "almost a year to get [his] own lawyer" and questioned why he waited until the day of trial to make the request. The defendant explained that his current lawyer had been appointed in April, and while the defendant had a "full meeting" with him, he had not heard from the lawyer since that meeting. After establishing that the Commonwealth was ready for trial, the judge held the case for trial and recessed the proceedings. The case was called about ninety minutes later. Defense counsel stated: "I believe the defense is now ready for trial." The judge asked the defendant: "[A]re you representing yourself, or are you going to stick with your attorney?" The defendant replied: "Stick with my attorney." The defendant did not express any reservation or objection regarding his attorney.

2. Motion for new trial. On May 19, 2017, the judge who presided at the defendant's trial conducted a nonevidentiary hearing on the defendant's motion for a new trial. The defendant was represented by new counsel. New counsel argued that the defendant's motion for a new trial should be allowed because the defendant "was not permitted to give all the reasons why he felt Attorney Colby was unprepared." He also stated that he had "spoken to Attorney Colby, and he [Attorney Colby] basically said he would not participate in this." Following the hearing, the judge denied the defendant's motion, writing in a margin endorsement that she did not find that Attorney Colby was ineffective and that it would not be in the interests of justice to allow the defendant's motion.

Discussion. Here, the two questions raised by the defendant are (1) whether the judge abused her discretion by declining to discharge the defendant's attorney on the day of trial, and (2) whether the defendant was deprived of the effective assistance of counsel.

1. Discharge of counsel. Whether to grant a request for new counsel or grant a continuance on the day of trial is a matter committed to the judge's sound discretion. Commonwealth v. Carsetti, 53 Mass. App. Ct. 558, 561 (2002). It is settled that a defendant cannot be forced to go to trial with an unprepared attorney. Commonwealth v. Appleby, 389 Mass. 359, 366-367 (1983). When as in this case, a defendant asks to discharge his attorney on the day of trial based on his attorney's lack of preparation, the judge must make an inquiry to determine whether the defendant's request is a dilatory tactic or a matter of genuine concern. See Carsetti, 53 Mass. App. Ct. at 562. The defendant has the burden to establish "good cause to remove appointed counsel." Commonwealth v. Clemons, 77 Mass. App. Ct. 232, 237 (2010).

In the present case, the record indicates that the defendant's trial counsel, Attorney Colby, was appointed three months prior to the trial date. On the day of trial, the defendant acknowledged that he had had a "full meeting" with Attorney Colby after the appointment. Prior to the commencement of the trial, Attorney Colby stated in open court that he was ready for trial. During the trial, the defendant did not raise any objection or express any concern about his attorney's preparation or performance. In the defendant's affidavit in support of his motion for a new trial, he fails to offer even a single instance of his trial counsel's performance that suffered from a lack of preparation. Although the defendant's current counsel did not submit an affidavit by defendant's trial counsel, current counsel did inform the judge that Attorney Colby did not wish to participate. We acknowledge that the absence of an affidavit is not "a talisman that, by itself, defeats a claim of ineffective assistance of counsel." Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551 (2014). However, it is an established rule of appellate practice that "[i]n order to be entitled to have this court consider and decide an issue, the defendant has the ... burden of including in a record on appeal all of the evidence, facts or information pertinent to the issue." Commonwealth v. Bernier, 366 Mass. 717, 720 (1975). While the defendant's own affidavit is certainly relevant evidence, the judge was not required to accept the defendant's allegations. See, e.g., Commonwealth v. Martens, 398 Mass. 674, 678 (1986). In these circumstances, where defendant's trial counsel informed the judge prior to trial that he was ready for trial, the defendant was not heard to complain again about his attorney's preparedness until after his convictions, and there is no affidavit from trial counsel to support the allegations contained in the defendant's affidavit, the judge, who presided at trial and was in a better position than we are to assess the performance of the defendant's trial counsel, was authorized to disregard the bald statement by the defendant that his trial attorney was not prepared for trial.

2. Ineffective assistance. For the same reasons, the defendant has failed to demonstrate that Attorney Colby provided ineffective assistance of counsel based on the familiar two-pronged test set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). There is no evidence or even a claim before us that Attorney Colby did something or failed to do something in his role as the defendant's trial counsel that constituted conduct "falling measurably below that which might be expected from an ordinary fallible lawyer."Id. Further, the defendant makes no claim that Attorney Colby should have done something in his preparation or conduct of the defense that he failed to do and that, as a result, "likely deprived the defendant of an otherwise available, substantial ground of defence." Id.

Judgments affirmed.

Order denying motion for new trial affirmed.

      The record indicates that prior to trial, the defendant's counsel participated in a sidebar conference with the prosecutor and the judge about the terms of a change of plea. The record also indicates that Attorney Colby asked for time to discuss the matter with the defendant. However, about twenty minutes later, the parties and the judge began the preparations for trial.

      A copy of the trial transcript is part of the record on appeal.

      The defendant argues that the judge ran afoul of Commonwealth v. Cavanaugh, 371 Mass. 46 (1976), by forcing the defendant to make a "Hobson's choice" between going to trial with an unprepared attorney or proceeding pro se. However, in Cavanaugh, unlike the present case, the defendant's attorney informed the court prior to trial that he was not prepared to try the case. Id. at 48.


text:
    COMMONWEALTH v. Steven A. HORWITZ.
    17-P-1558
    Appeals Court of Massachusetts.
    Entered: November 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a bench trial in the Superior Court, the defendant, Steven A. Horwitz, was convicted of misleading a judge, misleading a police officer, intimidation of a witness, false report of a crime, and identity fraud. He appeals, claiming that the judge committed error in denying his motions for required findings of not guilty by reason of lack of criminal responsibility, and that therefore he should not have been found guilty of the crimes. We affirm.

Prior to trial, the defendant filed a notice of intent to use the defense of lack of criminal responsibility due to mental disease or defect. The defendant contends that the judge erred by denying his motion for a required finding of not guilty by reason of lack of criminal responsibility, because the evidence presented by the Commonwealth was insufficient to prove that the defendant was criminally responsible. "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law" (quotation omitted). Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967). When a defendant raises lack of criminal responsibility as a defense, it is the Commonwealth's burden to prove beyond a reasonable doubt that the defendant was sane at the time the conduct occurred. Commonwealth v. Kostka, 370 Mass. 516, 526 (1985).

In considering this claim, we take the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "[A] judge ... must disregard contrary evidence presented by the defendant, including the testimony of a defense expert, unless the contrary evidence demonstrates that the Commonwealth's evidence, or any inference drawn from such evidence, is 'conclusively incorrect.' " Commonwealth v. Lawson, 475 Mass. 806, 817 (2016), quoting Commonwealth v. O'Laughlin, 446 Mass. 188, 204 (2006).

Essentially, the defendant contends that the judge did not properly weigh the evidence, and implicitly credited the Commonwealth's expert testimony over his own expert. Such claims are not reviewable on appeal. See Commonwealth v. Doucette, 408 Mass. 454, 457 (1990) (inquiry on appeal limited to "correctness of the judge's ruling ... measured by the Latimore standard, and without reference to the credibility of the witnesses or weight of the evidence"). Here, the judge, as he was required to do, considered whether "the evidence and the inferences that reasonably could be drawn from it were of sufficient force to permit a rational finder of fact to conclude that the defendant was criminally responsible beyond a reasonable doubt" (quotation omitted). Lawson, supra at 816. Although the defendant's expert's testimony contradicts some of this evidence presented by the Commonwealth, it did not make the Commonwealth's evidence "conclusively incorrect." Id. at 817, quoting O'Laughlin, supra. There was no error.

Judgments affirmed.

      The defendant moved for a required finding of not guilty at the close of the Commonwealth's case and at the close of all the evidence. At trial the defendant essentially waived argument as to the first motion, which was orally made. "A required finding of not guilty at the close of the Commonwealth's case is inappropriate where ... there is no dispute on the facts of the crime and the defense is that the defendant is not criminally responsible. Sanity is not an element of the crime." Commonwealth v. Kappler, 416 Mass. 574, 578 n.2 (1993). At oral argument, the defendant confirmed that on appeal he was proceeding only on the issue of sufficiency as it related to his defense of a lack of criminal responsibility, and not on the evidence of the crimes of which he was convicted.


text:
    COMMONWEALTH v. Lisa LEBEL.
    18-P-278
    Appeals Court of Massachusetts.
    Entered: November 20, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the District Court, the defendant, Lisa Lebel, was convicted of operating a motor vehicle under the influence of alcohol (OUI). On appeal she contends that the jury instruction concerning intoxication, when both alcohol and prescription medicine are involved, was erroneous; that a police officer offered improper opinion testimony; and that the evidence was insufficient to prove the defendant's guilt of OUI beyond reasonable doubt. We affirm.

Jury instruction. The testimony at trial included evidence that the defendant had been drinking alcohol and also "that she had taken two five milligram Vicodins" about four hours before her arrest. The defendant objected to the judge's instruction from Commonwealth v. Stathopoulus, 401 Mass. 453, 457 (1988), to the effect that a defendant may be found guilty of OUI if alcohol is a contributing cause of her diminished ability to operate a vehicle safely. Defense counsel's objection was based on the absence of evidence concerning the effects of Vicodin. On the facts of this case, the instruction was warranted. See Commonwealth v. Bishop, 78 Mass. App. Ct. 70, 75 (2010).

On appeal, the defendant argues that the judge erred by not giving the supplemental instruction that if alcohol was not a cause of the defendant's diminished capacity, the defendant must be acquitted. See id. at 72, quoting Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 365 (1982) ; Criminal Model Jury Instruction for Use in the District Court, Instruction 5.310 (2013). Because the defendant did not raise this objection at trial, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 689-690 (1998).

The judge did not err by omitting the supplemental instruction. The defendant did not request the instruction, nor did he bring its omission to the judge's attention. "Judges need not deliver their instructions in any particular form of words, so long as all necessary instructions are given in adequate words." Commonwealth v. Torres, 420 Mass. 479, 484 (1995). The instruction as a whole, see Commonwealth v. Niemic, 427 Mass. 718, 720 (1998), informed the jury that they were required to find that alcohol contributed to the defendant's diminished ability, even if some other factor contributed to the alcohol's effect. As instructed, the jury could not convict the defendant if Vicodin was the sole cause of her intoxication and alcohol played no role.

Moreover, even if the instruction was imperfect, we discern no risk of a miscarriage of justice, much less a "substantial" one. Because the defendant did not pursue a defense of involuntary intoxication based on the unknown effects of Vicodin, a Wallace instruction was not warranted. The defendant "has no right to the instruction ... that she was entitled to an acquittal if she did not know that her medication, when taken with alcohol, could result in intoxication." Bishop, 78 Mass. App. Ct. at 75.

Police officer opinion evidence. Officer Matthew McGrath testified that the defendant's inability to stay on the line, follow instructions, or maintain her balance during the nine-step walk-and-turn field sobriety test "indicates possible impairment," and that her lack of balance during the one-leg stand test was also "a sign of impairment." When asked his opinion of the defendant's sobriety, he answered, "It was my opinion that she was intoxicated." The defendant did not object to any of this testimony.

McGrath's testimony was permissible. A police officer is permitted to testify that a defendant is "probably impaired," "drunk," or "intoxicated." See Commonwealth v. Canty, 466 Mass. 535, 540, 544 (2013). McGrath did not offer the impermissible testimony that the defendant's "ability to drive was diminished." Id. at 544. Even if McGrath's testimony exceeded the scope of a permissible opinion as to the defendant's sobriety, we discern no risk of a miscarriage of justice. Any such risk was mitigated by the judge's instructions that the "[p]olice officers' testimony, including his opinion of the defendant's condition, does not carry more weight" than any other evidence; that the jury's "opinion of the defendant's capacity to operate safely" is the only opinion that determines guilt or innocence; and that the jury "may accept or reject" the evidence regarding the defendant's performance of field sobriety tests.

Sufficiency of the evidence. Under the familiar Latimore standard, the evidence is sufficient to sustain a conviction if, viewed in the light most favorable to the Commonwealth, any rational jury could find the elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). "The relevant question is whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding." Commonwealth v. Brown, 401 Mass. 745, 747 (1988).

The evidence that the defendant was under the influence of alcohol was sufficient. (The sufficiency of the evidence on the elements of operation and public way are not contested). When McGrath approached the defendant's car, it was parked with the engine running as she exited the driver's seat to "look for free items on the side of the road." She had driven four miles from her home. She smelled of alcohol, her eyes were bloodshot, she admitted that she had consumed alcohol, she performed poorly on the field sobriety tests, and McGrath formed the opinion that she was intoxicated. This evidence was sufficient to sustain the jury's conclusion.

Judgment affirmed.