text:
    COMMONWEALTH v. Alan B. WOOD.
    16-P-1197
    Appeals Court of Massachusetts.
    Entered: February 15, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Alan B. Wood, appeals from the judgment after his conviction of operating a motor vehicle while under the influence of alcohol, third offense, G. L. c. 90, § 24(1)(a )(1), raising numerous arguments, none of which is meritorious. We affirm.

Background. The jury could have found the following facts. On the night of June 21-22, 2014, Massachusetts State troopers conducted a "sobriety checkpoint" on Beach Road in the town of Salisbury. At approximately 1:00 A.M., Trooper Barry Nangle stopped and approached a motor vehicle operated by the defendant. Nangle noticed that the defendant's eyes were "bloodshot and glassy," and Nangle could "smell the odor of an alcoholic beverage coming from [the defendant's] person." When asked if he had been drinking alcohol, the defendant admitted that he had had "several beers" at a barbeque. Nangle then directed the defendant to turn into the "pit" for further assessment. There two other troopers detected a "pretty strong" odor of alcohol from the defendant, his "red," "glassy," and bloodshot eyes, and his slurred speech. The defendant, again admitting that he had been drinking, stated that he had three "Bud Light drafts" in "about five hours." Based on their observations, including the defendant's unsatisfactory performance on a number of field sobriety tests, the troopers formed the opinion that the defendant was intoxicated and placed him under arrest.

Discussion. 1. Motion to suppress. For the first time on appeal, the defendant challenges the constitutionality of the police's sobriety checkpoint on the basis that the troopers conducted it in a parking lot owned by a church. The defendant claims the location violated the church's private property interests because the Commonwealth offered no proof that it had authority to use the property for this purpose. As the defendant did not raise or argue the issue in his motion to suppress below, we review only to determine whether an error causing a substantial risk of a miscarriage of justice occurred. See Commonwealth v. Scala, 380 Mass. 500, 510-511 (1980). It did not.

There was no error in the denial of the defendant's motion to suppress. The defendant is without standing to challenge the use of property in which he has no ownership interest. See Cornell-Andrews Smelting Co. v. Boston & Providence R.R. Corp., 209 Mass. 298, 305 (1911). He also lacks standing to assert the rights of unspecified "people of other religious faiths and/or atheists" who "may object to the compelled entry upon the religious property of another faith." See Society of Jesus of New England v. Commonwealth, 441 Mass. 662, 669 (2004). As to the other challenges to the checkpoint location, each lacks citation to any meaningful authority, and thus does not rise to the level of acceptable appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

2. Sufficiency of the evidence. When reviewing the sufficiency of the evidence, we determine "whether the evidence, considered in the light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Coonan, 428 Mass. 823, 828 (1999). See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The Commonwealth was required to prove that the defendant (1) operated a motor vehicle (2) upon a public way (3) while under the influence of alcohol. Luk v. Commonwealth, 421 Mass. 415, 430 (1995). See G. L. c. 90, § 24 (1)(a )(1). To satisfy its burden of proof as to the defendant's intoxication, the Commonwealth had to prove that "the defendant's consumption of alcohol diminished [his] ability to operate a motor vehicle safely." Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). In making this determination, several factors are taken into account, such as the odor of alcohol coming from the defendant, his appearance, his performance on field sobriety tests, and the opinion testimony of police officers who observed the defendant. See Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994).

We conclude that the evidence of the defendant's intoxication was sufficient to satisfy the Latimore standard. The defendant twice admitted consuming alcohol earlier that evening. His eyes were bloodshot, red, and glassy, and his speech was slurred. He emitted a strong odor of alcohol when he spoke. In addition, the defendant was unable to complete any of the field sobriety tests. To the extent the defendant points to evidence in the troopers' testimony that he alleges shows his sobriety, it was for the jury to decide how much weight to place on the evidence. See Commonwealth v. Martino, 412 Mass. 267, 272 (1992).

3. Evidence relating to breathalyzer procedures. The defendant contends that a trooper's testimony, "No, he wasn't in a holding cell. That's when we start the breathalyzer test procedures," violated G. L. c. 90, § 24(1)(e ), which precludes the introduction of evidence that the defendant either failed or refused to consent to such test. While we agree the trooper should not have made the statement, we conclude that it did not so prejudice the defendant as to require a reversal of his conviction.

Here, it appears that the trooper's reference to breathalyzer procedures was inadvertent rather than a purposeful effort to circumvent the mandate of G. L. c. 90, § 24(1)(e ). Apart from this isolated reference, there was no further mention of breathalyzers during the remainder of the trial. In addition, the judge gave a forceful instruction that the jurors "are not to think about or otherwise consider the fact that no evidence was offered concerning a breathalyzer," and that they should "not consider it in any way and do not mention it in your deliberations." The "jury are presumed" to have followed this instruction. Commonwealth v. Roberts, 433 Mass. 45, 53 (2000). Thus, we conclude the defendant was not unduly prejudiced by the trooper's testimony. See Commonwealth v. Conroy, 396 Mass. 266, 268-269 (1985) (declining to reverse defendant's conviction where officer testified only once that defendant was afforded opportunity to take breathalyzer test, with no mention that he refused).

4. Abbreviated jury instructions in second trial. Immediately after the jury returned their verdict of guilty for operating while under the influence, the judge proceeded to a separate trial, before the same jury, on the charge that the defendant had previously been convicted of a "like offense" at least once. See G. L. c. 90, § 24(1)(a )(1). See also G. L. c. 278, § 11A. When the judge charged the jury at the second trial, he gave abbreviated instructions, referring to and incorporating the instructions he had given the jurors a few hours earlier. As there was no objection at trial, we review for a substantial risk of miscarriage of justice.

We are satisfied that the judge's condensed instructions did not create a substantial risk of a miscarriage of justice. This case is factually identical to Commonwealth v. Gonzalez, 47 Mass. App. Ct. 255 (1999), where the court held that, because "[t]he judge touched on the elements the Commonwealth was bound to prove," it was "unlikely the judge would have accomplished anything through full-dress repetition of the instructions." Id. at 260-261. We conclude likewise.

5. Instruction on New Hampshire conviction. The defendant next contends that the trial judge failed to instruct the jury that the New Hampshire offense of "driving while under the influence of intoxicating liquor" is a "like offense" to the Massachusetts crime of operating while under the influence. Because there was no request for such an instruction, we review only to determine if there was an error and, if so, whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Olivo, 58 Mass. App. Ct. 368, 373 (2003). There was no error.

The defense at the second trial was that the defendant was not the same person convicted of the New Hampshire offense. Instructing the jury that the New Hampshire conviction was a like offense to the Massachusetts conviction would not have furthered that defense. In fact, had such an instruction been requested, the judge would have had to instruct the jury that, as a matter of law, the New Hampshire offense was a like offense. See Commonwealth v. Flaherty, 61 Mass. App. Ct. 776, 777-781 (2004). As such, the absence of an instruction likely inured to the defendant's benefit, since a like offense instruction could only have removed the issue from the jury's consideration. There was no risk of a miscarriage of justice on this basis.

6. Answer to jury question. During deliberations the jury sent a note to the judge with three questions, one of which was: "why does the New Hampshire 2008 conviction say that it's the first conviction?" The judge answered the question by telling the jury that it was immaterial what number conviction it is, so long as they find that it is a conviction. There was no error. "The proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly." Commonwealth v. Nelson, 468 Mass. 1, 16 (2014), quoting from Commonwealth v. Monteagudo, 427 Mass. 484, 488 (1998). The judge's response provided the jury with the "relevant legal framework" to assist jurors in their consideration of the evidence. Commonwealth v. Nelson, supra. Furthermore, the judge's response did not preclude the jury from concluding that the defendant was not the person convicted of the New Hampshire offense. Thus, the judge properly exercised his discretion in responding to the question as he did.

Judgment affirmed.

      The defendant stipulated to the first two elements at trial.

      Both the defendant and the Commonwealth objected to the trooper's testimony. At sidebar, defense counsel moved for a mistrial, which motion was denied by the judge. The judge then stated that he would strike the trooper's testimony and issue a jury instruction pursuant to Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198 (2001). While it appears that the testimony was not stricken, the judge did issue a curative instruction when charging the jury that amounted to the functional equivalent of striking the testimony.

      The defendant takes issue with the phrasing of the judge's instruction, specifically, the omission of the phrase "put [the mention of breathalyzers] completely out of your mind." See Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198 (2001). This distinction is semantic; the instruction given by the judge in this case carried no meaningful difference from the instruction given in Downs.

      The Supreme Judicial Court recently held in Commonwealth v. Wolfe, 478 Mass. 142 (2017), that going forward, "the decision whether the jury receive [a Downs ] instruction should rest with the defendant." Id. at 148 n.10. This prospective holding does not affect the outcome of this case. Moreover the defendant did not argue against the judge's statement that he would give a Downs instruction, and did not object when the instruction was given.

      The jurors had begun deliberations on the first case at 12:30 P . M . and on the second case at 4:08 P .M.

      As the defendant notes, the model jury instruction on this offense contain a supplemental instruction for out-of-State offenses, which states that "as a matter of law, that the offense known as ________ in the state of ________ is a like offense to the offense of [operating while under the influence of liquor] here in Massachusetts." Instruction 2.540 of the Criminal Model Jury Instructions for Use in the District Court (2011).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Richard PANEPINTO.
    16-P-878
    Appeals Court of Massachusetts.
    Entered: February 8, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In January of 2012, the defendant shot his fifteen year old son in the stomach and then shot himself. Both survived. At trial the defendant conceded that he had shot his son but claimed that he was not criminally responsible because of a mental disease or defect. Rejecting that theory, the jury convicted the defendant of two counts of armed assault with intent to murder, aggravated assault and battery by means of a dangerous weapon, and various firearms charges. He appeals, arguing that the judge abused his discretion by allowing a lay witness to give expert opinion testimony, and that the prosecutor made statements in his closing argument that shifted the burden of proof to the defense. We affirm.

1. Lay witness testimony. One of the Commonwealth's witnesses was emergency medical technician Christopher Ebert, who was in the ambulance with the defendant as he was being transported to the hospital. During direct examination the prosecutor asked Ebert whether he was "familiar with the term alert and oriented times three." Ebert replied that it means "[a] person [who] is alert to time, place and event" and, to make that determination, an emergency medical technician asks three questions-"their name, where they are and what's going on." He then testified that the defendant was "alert and oriented times three" after the shooting because he was able to respond to the three questions by stating "his name, where he was and eventually the event that happened that night."

The defendant contends that the judge should not have allowed Ebert, a lay witness, to testify that the defendant was "alert and oriented times three" because that testimony amounted to expert opinion. We disagree. An expert opinion is one based on "scientific, technical, or other specialized knowledge that will assist the jury in understanding a fact in issue." Commonwealth v. Canty, 466 Mass. 535, 541 (2013). See Mass. G. Evid. § 702 (2017). A lay opinion, in contrast, is one that "lies within the realm of common experience." Canty, 466 Mass. at 542. A lay opinion is admissible if it is "(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness's testimony or in determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge." Id. at 541, quoting from Mass. G. Evid. § 701 (2013). Furthermore, "[t]he rule that [lay] witnesses in describing conduct should tell what they saw and heard does not foreclose the use of words of summary description." Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 647 (1961). Accord Canty, 466 Mass. at 544.

Here, Ebert's testimony that the defendant was "alert and oriented times three" was proper lay opinion, and not expert opinion. It does not take any scientific, technical, or specialized knowledge to determine whether a person knows his name, where he is, or what is happening at the time. Cf. id. at 541-542 (lay witness may testify as to defendant's level of intoxication). The phrase "alert and oriented times three" is simply shorthand or a "summary description" of a person's ability to answer these three basic questions. Kane, 341 Mass. at 647. The judge did not abuse his discretion in admitting this testimony.

Moreover, even were we to assume error, it was not prejudicial. Although the defendant argues that the testimony went to the ultimate issue at trial-whether the defendant was criminally responsible-Ebert acknowledged on cross-examination that the three questions were "not designed for the purpose of doing a full mental health screen" and would not allow him "to make that kind of assessment." In addition, the references to "alert and oriented times three" were fleeting and dwarfed by other evidence that went squarely to the issue of whether the defendant suffered from a mental disease or defect rendering him not criminally responsible. The prosecutor also did not refer to Ebert's testimony in his closing argument. In these circumstances "we conclude, with fair assurance, that the jury's judgment was not substantially swayed by [any] error." Canty, 466 Mass. at 545.

2. Burden shifting. The defendant next argues that the prosecutor engaged in improper burden shifting when he asked the defendant's expert witness, Dr. Robert Mendoza, if he interviewed the defendant, spoke with his family and friends, or reviewed the police reports. Because the defendant did not object to this questioning at trial, we review his challenge to determine whether there was error and, if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). We discern no error. During direct examination Mendoza testified generally about the standard for criminal responsibility, the process for conducting a criminal-responsibility evaluation, and the symptoms exhibited by people who have certain mental illnesses or brain injuries. In response, the prosecutor sought to elicit on cross-examination that Mendoza had no information particular to this case on which he could form an opinion as to the defendant's criminal responsibility. The prosecutor's questions were entirely appropriate and did not constitute burden shifting. Cf. Commonwealth v. Miranda, 458 Mass. 100, 116 (2010) (prosecutor is allowed "to respond to arguments raised by the defense").

The defendant also argues that the prosecutor engaged in burden shifting during his closing argument. Specifically, the defendant challenges the following passages:

"Was there any neurological or psychological examination conducted on [the defendant] afterwards? Dr. Mendoza talked a whole lot about what needs to be done to make any sort of definitive diagnosis of a neurological disease or condition that compels you to fail to be able to behave yourself, right? Any of that done in this case?"
"Didn't [Dr. Mendoza] tell you that an interview with the defendant is of paramount importance in conjunction with interviewing family and friends? Vitally important right?"

Because the defendant objected to these statements at trial, we review for prejudicial error. See Commonwealth v. Bresilla, 470 Mass. 422, 437 (2015).

Viewing the statements in the context of the entire argument, we conclude, as did the judge, that they did not cross the line into burden shifting. After making the statements, the prosecutor immediately went on to assert: "That's what the Commonwealth produced for you. A case study, right? About what happened." He then reviewed the extensive evidence of the defendant's medical history and his behavior leading up to and following the shooting. When placed in context, therefore, the remarks were "merely [a] comment on the evidence put before the jury, not a reflection on the absence of evidence." Commonwealth v. Francis, 450 Mass. 132, 141 (2007). See id. at 141-142 (prosecutor did not engage in burden shifting by asserting "that there was no real evidence of the defendant's mental illness" where remarks, in context, "referred to the evidence the defendant did produce").

Furthermore, the judge proceeded to give thorough instructions on the law of criminal responsibility, making clear that the burden of proof rests with the Commonwealth to "prove beyond a reasonable doubt that the defendant was criminally responsible at the time the alleged crime was committed. The burden is not on the defendant to prove a lack of criminal responsibility." We presume that the jury followed these instructions. See id. at 143.

Judgments affirmed.

      The parties disagree as to whether the defendant preserved his objection, but the disagreement is not material to our analysis. Our conclusion is the same whether we review for prejudicial error or a substantial risk of a miscarriage of justice.

      In contrast, Ebert's testimony went not to the defendant's sanity, but to the voluntariness of the statements he made on the night of the shooting.

      Because the prosecutor's statements were grounded in the evidence presented, this case is distinguishable from Commonwealth v. Hiotes, 58 Mass. App. Ct. 255, 258-259 (2003), on which the defendant relies.


text:
    Richard D. FANNING v. BOARD OF ZONING APPEAL OF CAMBRIDGE.
    16-P-1378
    Appeals Court of Massachusetts.
    Entered: February 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The board of zoning appeal of Cambridge (board) appeals from a judgment of the Land Court overturning the board's denial of the variance and special permit applications filed by the plaintiff, Richard D. Fanning. For the reasons that follow, we reverse.

Background. Fanning owns and occupies one side of an attached, duplex-style townhouse located on Cornelius Way in Cambridge (city) in the C-1 residential zone. His single-family unit is part of a townhouse development built around 1985. Fanning's lot, containing 6,248 square feet, is the largest of the fifty-four lots in the development, and has one off-street parking space.

In 2011, the board granted Fanning a variance to construct an addition which, when built, expanded his unit by more than twenty-five percent. On the application, Fanning identified the rear lot line as 32.40 feet wide and, noting the city zoning ordinance's (ordinance) fifty-foot width requirement, labeled it as "existing non-conforming." The application also noted that the western lot line (shared with the other side of the duplex) has a zero setback in contrast to the required 8.9 foot setback, though the addition would be twenty-four feet from the western property line. Fanning communicated to the board in his application that a variance was required because his unit was nonconforming and the addition exceeded twenty-five percent of the original structure.

At the hearing in 2011, Fanning introduced a statement of support from twenty-seven of his neighbors. The board granted the variance, finding that there were circumstances involving a substantial hardship relating to this property within the meaning of G. L. c. 40A, § 10, and that "desirable relief could be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the [o]rdinance." The board conditioned approval on compliance with the plans submitted and initialed by the chairman. There was no appeal from any aspect of the decision.

Off-street parking in the townhouse development is in the form of parking spaces in the front yard of each unit. In March of 2013, asserting that he hoped to rent out space in his unit, Fanning sought a variance and special permit for a second driveway cut and off-street parking space, requesting relief from article 6.43.3(c) of the ordinance, which allows only one curb cut per lot for lots with less than 100 feet of frontage, and article 6.44.1(c), which prohibits parking spaces within a required front yard setback. Pursuant to article 6.43.5(c), the one space per 100 feet of frontage may be modified by special permit if the board "determines that traffic and safety would be facilitated by exceeding this maximum." Relief from the prohibition of parking in a required front yard required a variance.

Although there were no objections from the neighbors and one neighbor spoke in favor of the proposal, the board denied relief, finding that Fanning had not shown hardship related to the soil conditions, shape, or topography of the land or structures and that relief could not be granted without substantial detriment to the public good or nullifying or substantially derogating from the intent and purpose of the ordinance. The board further found that it had been the board's consistent policy to discourage front yard parking absent a compelling case such as substantial hardship, which had not been demonstrated. The judge found that the board suggested that Fanning apply for a special permit waiver from the requirement that he provide a second off-street parking space. Fanning did not appeal from the board's decision.

Fanning next sought a building permit to construct an exterior staircase to the second floor of his unit. The building inspector told Fanning he needed a new variance to make any changes to the addition made possible by the 2011 variance. Fanning took no further action with regard to the building permit.

In 2014, Fanning sought a variance to create a second dwelling unit within his single-family residence and to add an exterior open staircase to the second floor as a second egress. He also sought a special permit to dispense with the requirement that each unit have an off-street parking space. The application identified the width of the lot as "45 [foot] avg" but indicated that fifty feet were required, and identified the side setback as zero, although 8.4 feet were required. Although the dimensional information sheet did not reflect that the proposed staircase would encroach the side yard setback, elsewhere in the application, Fanning stated that "[t]he requested variance of side yard setback is minimal, only two feet, still leaving a 6.5 foot setback from the affected side yard, which does not have a traditional 'neighbor' on that side as the lot abuts railroad tracks." He also suggested that, pursuant to articles 5.24.1 and 5.24.2 of the ordinance, the open staircase could be deemed to be a fire escape which the ordinance allows to encroach into a required yard.

In support of the special permit, the application stated "[t]here is insufficient land at the front of the lot to provide a second off street parking space, and access to the rear of the lot is prevented by the" existing dwelling. He noted that his property is at the end of a townhouse grouping and abuts an active railroad; there is surplus off-street parking in the vicinity; the MBTA Red Line is a fifteen to twenty minute walk; the MBTA bus lines are a five to ten minute walk; the second unit likely will house single, young students or others who would be expected to choose to live without an automobile; and he will seek tenants who do not own a car or who will seek parking in a nearby commercial facility.

According to the judge's findings, this time "several neighbors ... spoke and/or wrote in opposition to Fanning's proposal based largely on parking concerns." The board found that, based on the neighbors' complaints regarding parking issues, Fanning failed to demonstrate that reducing the number of parking spaces would not substantially reduce parking availability for other uses. The board further noted that, although Fanning had identified the location of neighboring parking facilities, he did not support his claims that a prospective tenant could park there. In addition, the board found that Fanning had not met the other special permit criteria (the board essentially parroted the criteria). With regard to the variance, the board found that Fanning had not demonstrated any hardship and "granting relief would be substantially detrimental to the public good and would intrude on a setback in a rather tight neighborhood."

Fanning appealed the denial of his 2014 special permit/variance application to the Land Court pursuant to G. L. c. 40A, § 17. The judge found that Fanning had not needed a variance for his 2011 addition; his lot and structure are conforming; and he did not need a variance for the addition of the proposed staircase or, apparently, to convert the townhouse to two dwelling units. The judge concluded that Fanning could reapply for a building permit for the second dwelling and exterior stairs and ordered the city building inspector to grant the building permit without requiring additional zoning relief. In addition, the judge concluded that Fanning had met the criteria for a special permit eliminating the off-street parking requirement; the board's denial of the special permit was arbitrary and capricious; and no reasonable board could have concluded as they did.

Discussion. The board's decision cannot be disturbed unless, on facts found by the judge de novo, the judge concludes that the board's decision is based on a legally untenable ground or is "unreasonable, whimsical, capricious or arbitrary." Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475 (2012) (Shirley Wayside ), quoting from Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 382 (2009) (Wendy's ). "The board is entitled to deny a permit even 'if facts found by the court would support its issuance,' ... [but] [t]he judge nonetheless should overturn a board's decision when 'no rational view of the facts the court has found supports the board's conclusion.' " Shirley Wayside, supra, quoting from Wendy's, supra. When reasons given by the board lack a substantial basis in fact and, in reality, were "mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law," deference is not appropriate. Shirley Wayside, supra, quoting from Vazza Props., Inc. v. City Council of Waltham, 1 Mass. App. Ct. 308, 312 (1973).

The parking special permit. Fanning asserts in his application that he is seeking zoning relief in order to create a second unit in his townhouse. Article 5.26 of the ordinance provides that "[n]o new dwelling unit created by the conversion of an existing dwelling into a greater number of units ... shall be permitted" unless it meets, among other area and open space requirements, the requisite off-street parking for all dwelling units after the conversion. Article 5.26 contains no provision for exception by special permit. Pursuant to article 6.35, however, "[a]ny required amount of parking may be reduced by issuance of a special permit from" the board.

A special permit allowing a reduction in required parking may be granted only if the board "determines and cites evidence in its decision that the lesser amount of parking will not cause excessive congestion, endanger public safety, substantially reduce parking availability for other uses or otherwise adversely impact the neighborhood." Article 6.35.1. In addition, the current article 11.16.2(4) provides that the space per unit parking requirement for townhouse developments may be met by on-street parking if the "special permit granting authority determines that the lack of off street parking for the townhouse development will not unreasonably reduce the quantity of on street parking in the area." Applicants for an exception from off street parking must "submit a report on parking usage and availability in the vicinity of the development with their permit application." Ibid.

The judge, however, found that Fanning only had to comply with the requirements contained in article 11 of the ordinance because it specifically applies to townhouse developments, and the provisions of article 6 are more general. We disagree. The townhouse development is already completed, and the mechanism by which it fulfilled its off-street parking requirements was established years ago with a single parking space on each dwelling unit's front yard. What prompted Fanning to seek relief from the board was not the development of his townhouse, but his desire to convert his single-family unit to a two-family unit. Article 5.26 specifically addresses the conversion of dwellings and requires that off-street parking requirements (here one space per dwelling unit) be met. If not for the broad provision in article 6.35 allowing relief from parking requirements, a variance would have been required. As a result, we are persuaded that the judge erred in concluding the article 6.35 provisions were not applicable.

In considering whether to grant the special permit, the board credited evidence that street parking in the area of Fanning's property was already overcrowded. Fanning, himself, testified that parking on the street was tight because residents of other neighborhoods also parked on his street. The judge did not make a contrary finding. In addition, the board correctly pointed out that Fanning's identification of local lots, where some commuters park, failed to demonstrate that a resident could park there overnight, and, although Fanning indicated that commercial parking was adjacent to his property, and buses and the subway line were nearby, he did not point to any age or other restrictions that would mandate that a renter of his second unit utilize those alternatives to parking a car on the street.

Article 6.35.1 of the ordinance states that consideration of offsite parking availability is appropriate, provided the requirements of 6.23 are satisfied. Article 6.23 provides that, when accessory parking facilities are allowed on land other than the lot on which the use being served is located, the special permit granting authority must be satisfied that binding commitments exist to guarantee that the off-site parking will continue to be available for the period during which the use or uses may be expected to be in existence-as evidenced by a negotiated lease agreement, recorded covenant, or comparable legal interest. Here, instead, Fanning relied on his own observation of 150 vacant spaces in an adjacent parking facility mid-week, along with the proximity to public transportation, and his prediction of the type of tenant his unit would attract. We cannot say the board erred in these circumstances in declining to accept Fanning's assessment of the adequacy of available parking.

The board's decision to deny approval of an additional space in Fanning's front yard is not before us, although we note his assertion on his 2014 application that there is not enough room for a second space. In addition, the fact that the board suggested earlier-at a time when there were no objecting abutters-that Fanning might qualify for a special permit to eliminate the off-street parking requirement, did not bind the board, particularly where, by the time Fanning sought that relief, some of his neighbors did in fact object.

The judge reasoned that a second person living with Fanning could park an automobile on the street and cause the same issue as would be caused by granting the special permit. That is true, of course, for all of the units in the development. Allowing a special permit on those grounds, however, would render the one space per unit requirement meaningless. We see no abuse of discretion in the board's decision not to grant the special permit to eliminate an off-street parking space requirement, given that street parking is already overcrowded and no commitment to off-site parking has been made.

The judge's conclusion that the board put Fanning in an unwinnable situation implies that Fanning was entitled to a decision either allowing a second space in the property's front yard or an exemption from the one space per dwelling unit requirement. That is not the case. Both of those actions require a variance or special permit, and no one is entitled to either a variance or a special permit as of right. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 559-560 (1954).

Variance. The judge concluded that no variance was required for the original 2011 addition because it was a conforming addition to a conforming structure. As a result, he concluded that the staircase, which he found qualifies as a fire escape and which the ordinance allows to encroach on the setback, did not require a variance. We disagree.

Fanning's application for the 2011 variance indicated that the lot was nonconforming in terms of the side setback and rear width requirements. The judge suggests that, because the side setback was allowed when the townhouse was built, it was a complying structure in 2011, despite the testimony of the commissioner of inspectional services that the townhouse ordinance had changed. Although they are usually waived for individual units in a townhouse development when the development as a whole is approved, when seeking to modify a townhouse, articles 11.15(c), 11.15.1, and 11.15.4 of the ordinance specifically provide that the zoning district's width and yard requirements apply to individual units. As a result, to the extent it was even open to the judge to reconsider the 2011 decision that a variance was required (a decision that was not appealed), there was no basis for the judge's conclusion that the dwelling was conforming when Fanning sought to increase its size by more than twenty-five percent in 2011.

When, as here, a variance is granted, conditioned on construction in compliance with submitted plans, "the variance requires strict compliance with the plans." Lussier v. Zoning Bd. of Appeals of Peabody, 447 Mass. 531, 536 (2006), quoting from DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339, 346-347 (1985). Even if the proposed staircase does constitute a fire escape and may encroach into the side setback without creating a new nonconformity, it still constitutes additional construction, contrary to the plans submitted in 2011 and therefore requires a new or modified variance. See Lussier, supra at 532, 535-536. That a different section of the ordinance might have allowed Fanning to obtain approval of the 2011 addition by special permit is not relevant once Fanning identified lot nonconformities, elected to proceed with and obtained a variance, and failed to appeal from the variance. See Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357, 362 (2008) (judge did not abuse discretion in refusing to consider plaintiffs' contention on motion for reconsideration that different provision of zoning by-law might exempt property from lot size requirement). As a result, we cannot agree with the judge that Fanning was not required to obtain a new variance, or a modification of the 2011 variance.

There was no error in the board's conclusion that Fanning had not shown hardship. It is well-settled that hardship stemming from an owner's personal financial and even health difficulties, rather than factors which affect the land itself, are not valid bases for a variance. See Sheppard v. Zoning Bd. of Appeals of Boston, 81 Mass. App. Ct. 394, 399 n.8 (2012). "[A]n inability to maximize the theoretical potential of a parcel of land is not a hardship within the meaning of the zoning law." Steamboat Realty, LLC v. Board of Appeal of Boston, 70 Mass. App. Ct. 601, 603 (2007), quoting from McGee v. Board of Appeal of Boston, 62 Mass. App. Ct. 930, 931 (2004). A finding of no hardship is sufficient reason to deny a variance. Ibid.

Fanning tacitly concedes in his brief that his application does not meet the requirements for a variance. Other than repeating his unavailing argument that the 2011 addition complied with zoning requirements, he makes no effort to argue the property actually qualified for a variance in 2014. For all of the foregoing reasons, therefore, we discern no error in the board's denial of Fanning's variance or special permit applications. The judgment is reversed. The matter is remanded for entry of a new judgment affirming the decision of the board and such other orders as may be necessary, consistent with this memorandum and order.

So ordered.

Reversed and remanded.

      The application indicated he needed additional space for his model-making and woodworking hobbies. The judge also found that he intended to have his sister move in with him.

      At the time of his application, article 8.22.2(c) of the ordinance provided that a special permit for the enlargement of a nonconforming structure may be granted, but only if the enlargement is not in further violation of dimensional requirements and the nonconforming structure will not be increased in area or volume by more than twenty-five percent. Article 8.22.3 provided that all other enlargements of a nonconforming structure required a variance.
      Article 11.15(c) of the ordinance provides that modifications of townhouse developments that do not comply with the dimensional standards may be allowed by a special permit issued by the board. The 2011 application, however, made no reference to article 11.

      Article 6.35.1 further provides:
      "In making such a determination the Board shall also consider whether or not less off street parking is reasonable in light of the following:
      "(1) The availability of surplus off street parking in the vicinity of the use being served and/or the proximity of an MBTA transit station.
      "(2) The availability of public or commercial parking facilities in the vicinity of the use being served provided the requirements of Section 6.23 are satisfied.
      "(3) Shared use of off street parking spaces serving other uses having peak user demands at different times, provided that no more than seventy-five (75) percent of the lesser minimum parking requirements for each use shall be satisfied with such shared spaces and that the requirements of Subsection 6.23 are satisfied ....
      "(4) Age or other occupancy restrictions which are likely to result in a lower level of auto usage; and
      "(5) Impact of the parking requirement on the physical environment of the affected lot or the adjacent lots including reduction in green space, destruction of significant existing trees and other vegetation, destruction of existing dwelling units, significant negative impact on the historic resources on the lot, impairment of the urban design objectives of the city as set forth in Section 19.30 of the Zoning Ordinance, or loss of pedestrian amenities along public ways.
      "(6) The provision of required parking for developments containing affordable housing units, and especially for developments employing the increased FAR and Dwelling unit density provisions of Section 11.200, will increase the cost of the development, will require variance relief from other zoning requirements applicable to the development because of limitations of space on the lot, or will significantly diminish the environmental quality for all residents of the development.
      "For a project seeking a reduction in required off-street parking for residential uses, a Parking Analysis shall be required as part of the Special Permit Application as set forth in Section 6.35.3."
      Article 6.35.32 provides that "[w]here a Parking Analysis is specifically required by any provision of this Zoning Ordinance, the proponent shall first consult with the Traffic, Parking and Transportation Department to determine the scope and methodology of such an analysis. The results of the Parking Analysis shall be included in any Special Permit Application for the project." Article 6.35.33 contains criteria for residential projects some or all of which are to be included as determined by the city traffic, parking and transportation department.

      The judge found that the board also relied on the absence of a traffic analysis in denying the special permit. Although the board's decision does not comment on the absence of a formal traffic analysis, Fanning testified that one of the board members told him at the hearing that one of the reasons his application was rejected was because he did not submit a traffic study. The judge found that Fanning's report of parking availability was sufficient and Fanning did not need to conduct the analysis required by article 6.35.33 because what he provided satisfied the requirement contained in article 11. As noted above, Fanning, in fact, was required to satisfy article 6 in order to obtain relief from the parking requirement for conversion of one dwelling unit to two. Fanning testified that he did not conduct a parking study because he did not think it was necessary for a one-space reduction in parking. However, the ordinance requires consultation with the traffic, parking and transportation department to determine the scope and methodology of any required analysis. Article 6.35.33 contains criteria for a parking analysis for residential projects, some or all of which are to be included as determined by the traffic, parking and transportation department. It was therefore not Fanning's determination of whether a parking study was necessary that is required by the ordinance. As a result, the board could have denied the special permit because the application was incomplete, if for no other reason, Fanning, at a minimum, having failed to consult with the department.

      We conclude the judge correctly rejected the board's argument that, pursuant to Sisters of the Holy Cross of Mass. v. Brookline, 347 Mass. 486, 494-495 (1964), Fanning failed to preserve his argument that the board erred in requiring him to obtain a variance in 2014.

      It is true that article 11.15(c) provides that modifications of townhouses that do not comply with the dimensional standards may be allowed by a special permit issued by the board. Fanning did not seek zoning relief under article 11.15(c). Although the chairman was perhaps correct that all Fanning needed in 2011 was a special permit, we will not disturb the variance issued upon the plaintiff's request.


text:
    COMMONWEALTH v. Ilya ZINOV.
    16-P-1566
    Appeals Court of Massachusetts.
    Entered: February 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the Superior Court, the defendant, Ilya Zinov, was convicted of armed assault with intent to murder, G. L. c. 265, § 18(b ), aggravated assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(c )(i), carrying a firearm without a license, G. L. c. 269, § 10(a ), and possessing a firearm during the commission of a felony, G. L. c. 265, § 18B. After a jury-waived trial, he was also convicted under the armed career criminal statute, G. L. c. 269, § 10G(a ). He filed a timely notice of appeal. For the reasons discussed below, we affirm.

Background. On the evening at issue, prior to the shooting that formed the basis for the charges in this case, the victim, John Lopes, was involved in a dispute in the parking lot of Ying's Restaurant in Hyannis. During an argument with his then-girl friend, the victim heard a group of people laughing, and "angrily" approached them. The victim stood face to face with a member of the group, whom he had "[b]riefly" seen before and whom he identified at trial as the defendant, and said, "[w]hat are you laughing at? Like you think something's funny?" The defendant replied, "[n]o, I was just laughing how you was yelling at that bitch." The victim responded, "[t]hat's not no bitch. That's my woman." The victim's friends approached and asked what was going on. The victim said, "[n]othing. I'm handling it myself." One of the other individuals at the scene said, "[n]othing's going on," to which the defendant retorted, "[y]ou got that," and walked away. The victim described his own demeanor during the interaction, which lasted "maybe two minutes," as "hostile" and "aggressive."

Later that night, the victim's friend, Jeff Merrifield, was approached by a different group of people, in the same parking lot. An argument concerning Merrifield's apparent sale of phony Percocets ensued. The victim testified at trial that he "didn't want anything bad to happen," and tried to "mediate the problem." After some "yelling back and forth," everyone walked away.

Yet later that same night, the victim's girl friend asked the victim to change a flat tire on her motor vehicle. The victim looked in the trunk of the vehicle for a jack, which he could not locate. As he walked from the trunk to the driver's side window, he saw the defendant walking towards him. As the victim leaned into the window and spoke to his girl friend, he "started getting shot." The victim ran and, as he did so, saw five to seven flashes from the barrel of a small gun, which the defendant was shooting. The victim ran toward a nearby automobile dealership where he was ultimately approached by a taxi driver who eventually put him into the cab. The victim had the driver return to the parking lot where they picked up his girl friend. The driver then transported them to the hospital. The victim was covered in blood and suffered gunshot wounds to the back, neck, and arm.

The victim's testimony was corroborated in part by the taxi driver, his girl friend, and other witnesses, as well as by exhibits including his medical records. However, he was the only person who identified the defendant as the shooter at trial. The defense centered on the existence of dual and distinct motives for the shooting; the victim's credibility and inconsistent statements to the police; the victim's cooperation agreement with law enforcement; and the victim's failure to identify the defendant to the police until approximately eighteen months after the shooting, and while in custody after his subsequent arrest.

Discussion. 1. Closing argument. The defendant contends that the prosecutor made baseless assertions in his closing argument, which warrant a new trial. Specifically, he claims that there was no evidence indicating that the defendant thought of himself as a "tough guy," or that he wanted to "save fac[e]" in the "community," and thus the prosecutor's statements to that effect constituted impermissible and prejudicial commentary relating to the defendant's alleged bad character. We disagree.

Defense counsel's closing argument repeatedly emphasized the "drug ripoff" as the motive for the shooting. For example, he argued as follows:

"The idea that this happened over a drug ripoff involving $8,000 in fake Percocets -no, that's a theory that everybody seems to buy, and then it changes. And what's the motive now? And this isn't funny because somebody's life is on the line here. But they want you to believe that somehow this incident-because [the victim] tells them that it occurred-because the man laughed at him, and then he bumped him, pumped him, did something."

Defense counsel also queried:

"I mean you are supposed to believe that this incident occurred somehow because [the victim] was laughed at? And then somebody came back and shot him? Versus there was a drug rip off?"

In response, near the outset of his closing, the prosecutor argued as follows:

"This isn't a case about Percocets... This is a case about [the defendant's] self-image as a tough guy. He was shown up in the community. And what did he do? He came back later when [the victim] was in front of him all by himself and he shot him. Why did he shoot him? Because he got shown up. That's why he shot him.".

The prosecutor later said, "[t]his is about [the defendant] saving face. This is about [the defendant] finding [the victim] with nobody around and making [the victim] pay for showing him up." And finally, at the end of his argument, the prosecutor said, "this case is about [the defendant] and his self-image as a tough guy. He was shown up in public by [the victim] in front of someone he was with, in front of a group of people earlier in the evening."

At the conclusion of the Commonwealth's closing, defense counsel objected to various remarks made by the prosecutor. Although the objection was not a model of clarity, it was sufficiently specific to preserve this issue on appeal. See Commonwealth v. Awad, 47 Mass. App. Ct. 139, 143 n.2 (1999). As the issue was preserved, we review for prejudicial error. Under this standard, we must determine whether we can say "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." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) (quotation omitted). We consider the prosecutor's remarks "in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Nelson, 468 Mass. 1, 10 (2014) (quotation omitted).

Placed in context, the prosecutor's statements constituted an inartful response to the argument by defense counsel, but not grounds for reversal. It would have been preferable for the prosecutor to avoid the "tough guy" label and to suggest that the evidence showed that the defendant reacted to being shown-up in front of his companions, instead of using the term "community." That notwithstanding, a reasonable juror would have understood that the prosecutor was contrasting the two potential motives for the shooting and drawing inferences based on the evidence, rather than, as the defendant contends, sharing some sort of private knowledge with them. "[E]nthusiastic rhetoric, strong advocacy, and excusable hyperbole are not grounds for reversal," Commonwealth v. Wilson, 427 Mass. 336, 350 (1998) (quotation omitted), and this case falls into that category.

Even if we assume, arguendo, that the prosecutor's remarks crossed the line into error, we are confident that the error did not influence the jury. See Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 290 (2003). Indeed, the challenged statements comprised only a slight portion of the prosecutor's comprehensive closing argument, which covered seventeen pages of the trial transcript. Moreover, throughout trial, the jury were repeatedly apprised of the competing motives for the shooting; they knew of the victim's cooperation agreement, prior convictions, and purported motive to curry favor with the police; and they were presented with a full and fair picture of the events at issue. See Wilson, supra (jurors are "presumed to have a certain measure of sophistication in sorting out excessive claims on both sides").

Finally, the judge instructed the jury three times that closing arguments are not evidence, and reminded them that they "shouldn't consider anything that [the attorneys] say during the course of their closing arguments as evidence because the evidence has been declared closed by the Court." The instructions were thorough and accurate, and we presume the jury followed them. See Commonwealth v. Cortez, 438 Mass. 123, 130 (2002).

2. Grand jury evidence. The defendant also contends that the motion judge erred in denying his motion to dismiss the indictment because the prosecutor withheld exculpatory evidence from the grand jury. The defendant claims that the grand jury were not aware of the existence of the cooperation agreement between the Commonwealth and the victim. Under that agreement, the victim would cooperate "relative to incidents occurring on or about January 6, 2011, involving the firing of a firearm, injuries sustained by [the victim] and the identity of the person who fired said firearm ... and the following individual: [the defendant]," in exchange for a reduction in charges from trafficking in cocaine to possession of cocaine. According to the defendant, the omission of any evidence of the cooperation agreement was exacerbated by the introduction of a recording of a police interview with the victim, in which he stated, "[n]o promises or threats have been made, and no pressure or force of any kind has been made against me."

We agree with the motion judge's conclusion that "the grand jurors heard reasonably trustworthy information that on January 6, 2011, the defendant shot [the victim] and that probable cause exists to charge the defendant." Accordingly, we think it unlikely that these failures of disclosure and representations to the grand jury "would have affected the grand jury's decision to indict." Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986), quoting from Commonwealth v. McGahee, 393 Mass. 743, 747 (1985). We further note that the grand jury were apprised that the defendant's bail was reduced following his July 24, 2012, recorded statement to the police, which was played for them and entered into evidence as an exhibit. Ultimately, we agree with the judge that the record does not reflect that the Commonwealth made a deceptive presentation of evidence to the grand jury. Even assuming, arguendo, that the record did so reflect, we cannot say that such evidence was presented with the intention of obtaining an indictment. See Mayfield, supra. See also Commonwealth v. Hyde, 88 Mass. App. Ct. 761, 773-774 (2015). The judge did not err in denying the motion to dismiss.

Judgments affirmed.

Order denying motion for new trial affirmed.

      We allowed the defendant's motion to stay his appeal to enable him to bring a motion for a new trial. That motion was denied by the trial court. The defendant filed a second notice of appeal and these appeals were consolidated.

      At the time of trial, the victim and his "ex-girlfriend" were no longer dating.

      Although the victim did not identify the defendant to the police until many months after the shooting, he testified that two weeks to a month after he left the hospital, he looked at pictures on his computer and recognized the defendant as the person with whom he had argued in the parking lot and as the shooter. The victim further testified that he did not seek out the police and reveal the defendant as the shooter because he feared further consequences and "didn't want any more harm to be done to [him] and [his] family."

      The cooperation agreement was executed two days after the victim made the recorded statement.


text:
    COMMONWEALTH v. Salvatore BILODEAU.
    16-P-1714
    Appeals Court of Massachusetts.
    Entered: February 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial, the defendant, Salvatore Bilodeau, was convicted of two counts of rape. On appeal, among other issues, the defendant challenges the trial judge's partial allowance of the Commonwealth's motion to introduce his prior conviction for impeachment purposes. Because we conclude that the judge's ruling constituted prejudicial error, we reverse the judgments and set aside the verdicts.

Facts. The victim and the defendant met on an online dating Web site, and after communicating by telephone and text for some time, agreed to meet at the defendant's house for a first date. The two drove to pick up dinner and brought it back to the defendant's bedroom to eat. After they finished dinner, the defendant attempted to pull the victim on top of him, and she resisted. She then went to her car, saying she wanted to retrieve her anxiety medication. The defendant followed her as she retrieved her medicine and the two then returned to the defendant's room. The defendant pulled the victim onto the bed and raped her vaginally and anally as she protested. She then left and returned to her home.

The victim first disclosed the assault approximately one month later to her ex-boyfriend, by a brief text which was followed by a telephone call.

Discussion. Prior to trial, the Commonwealth sought a ruling that if the defendant were to testify at trial, he could be impeached with his prior conviction of indecent assault and battery. The defendant objected, and filed a corresponding motion to exclude. After argument, the judge ultimately ruled, at the suggestion of the Commonwealth, that the Commonwealth could impeach the defendant by introducing evidence simply that he was convicted of a felony, without noting the specific charge. The defendant argues that this ruling requires reversal.

The Commonwealth properly concedes that the judge's ruling was erroneous. We have disapproved of the practice of "papering over" the nature of prior convictions used to impeach a defendant. Commonwealth v. Ioannides, 41 Mass. App. Ct. 904, 905 (1996). In the absence of the express request of a defendant that the nature of the conviction be omitted, "a judge, with rare exceptions, should decide whether to admit the prior conviction described as to its nature or to exclude it in its entirety." Id. at 906. Here, the defendant did not so request, and the Commonwealth suggests no exception which compelled the masking of the defendant's prior conviction rather than its exclusion or admittance in full.

The defendant's objection was properly preserved, as it was renewed during trial after the close of the Commonwealth's evidence. See Commonwealth v. Crouse, 447 Mass. 558, 564 (2006). The defendant did not testify at trial but that does not preclude his challenge. Commonwealth v. Little, 453 Mass. 766, 773 (2009). Accordingly, we review to determine whether the error was prejudicial.

The case is close in that the defendant did not make an offer of proof as to the content of his testimony, and how that testimony would have aided his defense. While not automatically fatal, this failure may be construed against him on the issue of prejudice. Id. at 775 n.8. Nor has the defendant insisted that he would have testified in the absence of the ruling at issue.

Still, in a case charging a sexual assault in which the Commonwealth's case relied solely on the credibility of the victim, the admission of a felony for impeachment purposes "effectively prevented [the defendant] from [testifying]" where his "ability to testify in his own defense might have had a significant effect on the outcome of the trial." Id. at 775. In these circumstances, we cannot say the judge's error was not prejudicial, therefore we reverse.

We turn now to the defendant's argument as to first complaint, as that issue may arise on retrial. Contrary to the defendant's assertions, we see no merit to the defendant's claim that the judge abused her discretion in admitting the victim's telephone conversation with her ex-boyfriend disclosing the rape. The evidence of the telephone conversation in conjunction with the text message that preceded it did not, as the defendant argues, constitute multiple complaint evidence in violation of the first complaint doctrine. The text message and telephone call were properly admitted, as they qualified together as a "single, tightly intertwined oral and written communication." Commonwealth v. Revells, 78 Mass. App. Ct. 492, 496 (2010).

Conclusion. We reverse the judgments and set aside the jury verdicts.

So ordered.

Reversed.

      The jury could have found the following facts at trial.

      Finally, we need not address the defendant's argument concerning the trial judge's failure to give a contemporaneous limiting instruction on the use of first complaint testimony, as it is unlikely to arise on retrial.


text:
    Denise M. CLIFFORD, personal representative, v. UNIVERSAL HEALTH SERVICES, INC., & others.
    16-P-1715
    Appeals Court of Massachusetts.
    Entered: February 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the estate of Erin D. Clifford.

      The Arbour, Inc., doing business as Arbour Hospital, and Diego Martinucci.

   After the death of her premature twins, nineteen year old Erin Clifford was admitted to Arbour Hospital, on a conditional voluntary status, G. L. c. 123, §§ 10 and 11, in order to receive mental health treatment. On July 3, 2012, Erin asked to be discharged, and signed a so-called "3-day notice." See G. L. c. 123, § 11. On July 6, 2012, Dr. Diego Martinucci evaluated Erin, provided her with an after-care treatment plan, and discharged her. The following day, Erin died in a homeless shelter as the result of "acute mixed drug intoxication."

The plaintiff, Denise M. Clifford, Erin's aunt and the personal representative of Erin's estate, brought a wrongful death action in Superior Court, essentially alleging negligence in the discharge of Erin from Arbour Hospital. The medical malpractice tribunal determined that the plaintiff's offer of proof was insufficient. After the plaintiff failed to post the statutory bond, see G. L. c. 231, § 60B, a judge of the Superior Court dismissed the case without prejudice. We affirm.

At the tribunal stage, the plaintiff was obligated to present an offer of proof demonstrating, among other things, that Martinucci was a provider of health care as defined in G. L. c. 231, § 60B, who failed to exercise that degree of care and skill expected of "the average member of the profession practicing the specialty, taking into account the advances in the profession," and that such failure more probably than not caused the harm. Palandjian v. Foster, 446 Mass. 100, 104 (2006) (quotation omitted). See Keppler v. Tufts, 38 Mass. App. Ct. 587, 591-592 (1995) ; Goudreault v. Nine, 87 Mass. App. Ct. 304, 308 (2015). "Establishing the applicable standard of care typically requires expert testimony" from a "witness [who] has sufficient education, training, experience and familiarity with the subject matter of the testimony." Palandjian, supra at 105-106 (quotation omitted). Like the tribunal itself, we do not "examine the weight or credibility of the evidence" but instead "view the evidence contained in the offer of proof in the light most favorable to the plaintiff." Goudreault, supra at 308-309.

The plaintiff's offer of proof contained a "forensic expert evaluation" signed by "Helen M. Farrell, M.D.," identified further only as a "Forensic Psychiatrist." The evaluation was not in affidavit form, it was not on letterhead, and it did not provide any contact information. The evaluation also did not provide any information regarding Dr. Farrell's education, training, experience, practice areas, or specialties. We assume, without deciding, that the plaintiff adequately established Dr. Farrell's expertise, sufficient to allow her to provide opinion evidence, under "the 'extremely lenient' standard of establishing an expert's qualifications before a medical malpractice tribunal." Blake v. Avedikian, 412 Mass. 481, 483 (1992).

Even so, Dr. Farrell's evaluation does not establish either the applicable standard of care or either Arbour Hospital's or Martinucci's breach thereof. Although Dr. Farrell opines regarding practice standards, she does not indicate that she in fact is familiar with the standards she purports to identify. While we acknowledge that such matters need not be expressed through rote invocation of any particular "magic words" they nonetheless must be "expressed with sufficient firmness and clarity." Bailey v. Cataldo Ambulance Serv., Inc., 64 Mass. App. Ct. 228, 235 (2005). Dr. Farrell did not do so.

Moreover, Dr. Farrell's assertions and conclusions, particularly with respect to medical causation, appear not only to be, at least in part, without disclosed factual basis, but also fail to address critical, statutorily-mandated criteria. The record establishes that Erin voluntarily admitted herself for care under G. L. c. 123, § 10(a ). Erin demanded release on July 3, executing a § 11 three-day waiver at that time. After Erin demanded discharge, the hospital and Martinucci were required, under § 11, to discharge her by no later than July 6, as Martinucci did. Martinucci's only other option was to initiate an emergency petition for involuntary commitment. To do so, Martinucci would have had to have "reason to believe that failure to hospitalize would create a likelihood of serious harm by reason of mental illness," G. L. c. 123, § 12(a ), and "that no less restrictive alternative to hospitalization is appropriate." Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 780 & n.8 (2008). See G. L. c. 123, § 8(a ).

Although Dr. Farrell opines that Martinucci's conduct fell below the standard of care "in terms of conducting and documenting an inadequate discharge risk assessment," Dr. Farrell does not explain how such deviation is relevant to the discharge decision as mandated by law under § 11 or that, had such adequate evaluation been conducted, it would have revealed that grounds existed under § 12(a ) for an involuntary commitment. That is, Dr. Farrell does not purport to opine that: Erin was, at the time of discharge, in fact "mentally ill" within the meaning of § 12(a ) ; no less restrictive environment than involuntary hospitalization was appropriate; or an average qualified specialist in like circumstances would have concluded at the time of discharge that the deceased was at risk "of serious harm by reason of mental illness" such that she must be involuntarily confined. Lacking such links we are left with little more than conjecture on which to conclude that Martinucci's purported failure to conduct and document more thoroughly the discharge risk assessment more probably than not was a cause of Erin's accidental drug overdose. Keppler, 38 Mass. App. Ct. at 591-592. LaFond v. Casey, 43 Mass. App. Ct. 233, 237-238 (1997).

The tribunal properly determined that the plaintiff's offer of proof was insufficient. In light of this disposition, we need not address the parties' remaining arguments.

Judgment affirmed.

      As the plaintiff and her niece share a surname, we use first names to avoid confusion.

      The complaint also contained a claim for breach of contract for medical care and a violation of G. L. c. 93A arising out of the claims of medical malpractice.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So ordered.

Affirmed in part.

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

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

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

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


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

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

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

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

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

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

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

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

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

Judgments affirmed.

Order denying motion for new trial affirmed.

Order denying motion for reconsideration affirmed.

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

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

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

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