text:
    COMMONWEALTH v. Joseph R. LAMB.
    16-P-1696
    Appeals Court of Massachusetts.
    Entered: March 23, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the denial of his motion for new trial, and his subsequent motion for reconsideration, in which he sought to vacate his plea of guilty on a charge of armed robbery, entered in 2015. Immediately prior to the plea colloquy, the Commonwealth moved, with the assent of the defendant's plea counsel, to amend the indictment from one charging armed robbery "while being armed with a handgun" to one charging armed robbery "while being armed with a dangerous weapon." In his motion for new trial, the defendant contends that his plea counsel was ineffective in his failure to object to the amendment of the armed robbery indictment. We discern no error of law or abuse of discretion, and affirm.

Following an incident at a convenience store on September 14, 2014, the defendant was indicted for armed robbery. The defendant eventually turned himself into police, confessed to the robbery, but explained he had used a toy gun. He directed police to a bin of toys in a neighbor's yard where he said he had obtained and later returned the toy gun. On December 24, 2014, two months after the indictment was returned, the police recovered the toy gun from that location.

On the day of the plea hearing, the Commonwealth moved to amend the indictment. The indictment, which was captioned "Armed Robbery-C265, § 17," alleged that the defendant had robbed a convenience store "while being armed with a handgun." The Commonwealth's motion sought to amend the indictment to allege an armed robbery "while being armed with a dangerous weapon." The defendant's plea counsel assented to the motion, the plea judge allowed it, and the defendant entered a plea of guilty to the charge of armed robbery while being armed with a dangerous weapon.

In his motion for new trial, the defendant contends that his plea counsel rendered constitutionally ineffective assistance, by consenting to the amendment of the indictment. According to the defendant, the amendment of the indictment to substitute reference to a "dangerous weapon" in place of reference to a "handgun" was an amendment of substance rather than of form, and plea counsel should have recognized it as such and objected to the amendment rather than consenting. He also alleges that he did not knowingly and voluntarily waive his right to indictment by a grand jury.

We need not address either contention, because even if we assume, favorably to the defendant, that the amendment was one of substance and that counsel's assent to it fell measurably below the performance expected of an ordinary fallible lawyer, we discern no resulting prejudice to the defendant. In other words, the defendant has not demonstrated that better work by counsel "might have accomplished something material for the defense," Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977), or that any error created a substantial risk of a miscarriage of justice.

There was no prejudice to the defendant by the amendment; indeed it was the defendant himself who informed police he had used a toy gun during the robbery and the defendant accordingly could not have been surprised by the change. Had plea counsel objected to the amendment, the Commonwealth could readily have sought and obtained a new indictment on the charge of armed robbery by means of a dangerous weapon. There is no allegation that counsel believed the defendant, having used a toy gun, actually faced the minimum mandatory sentence of five years for robbery armed with a handgun, and he had negotiated a favorable disposition to which the defendant had agreed, of three to six years in State prison for a crime with a maximum penalty of life in prison. See G. L. c. 265, § 17. To require the Commonwealth to go through the process of obtaining from the grand jury a second indictment would have been, at best, purposeless. The defendant would not, in any circumstances, have been entitled to entry of a conviction on the lesser included charge of unarmed robbery, the relief he has requested in his brief on appeal. Accordingly, even if we assume that the defendant's plea counsel was constitutionally ineffective and that the defendant did not knowingly and voluntarily waive his right to have a new indictment issued by the grand jury, the defendant suffered no prejudice, much less a substantial risk of a miscarriage of justice, as a result.

Order denying motion for new trial affirmed.

Order denying motion for reconsideration affirmed.

      He also contends that the plea judge erred in allowing the amendment, and then accepting his guilty plea to an amended charge on which he had not been indicted.

      As noted earlier, the defendant used a toy gun to commit the robbery, not a handgun or firearm. While a toy gun may properly constitute a dangerous weapon, it does not qualify as a handgun or firearm. See Commonwealth v. Powell, 433 Mass. 399, 402-404 (2001).

      As the defendant acknowledges, the Commonwealth could in the alternative have proceeded on a complaint.

      The Commonwealth would not have proceeded to trial on the original indictment in this case, as it did in the somewhat similar circumstances of Commonwealth v. Garrett, 473 Mass. 257 (2015). Garrett was pending before the Supreme Judicial Court at the time of the plea hearing in the present case, and the Commonwealth's request to amend the indictment reflects its awareness of the possible deficiency in an indictment specifying a firearm when a different form of a dangerous weapon was used in the robbery. In his motion in the trial court, the defendant asked only that he be returned to the position he was in at the time immediately prior to the indictment. The more substantial relief requested before us may reflect a conclusion that would be of little benefit to him since the Commonwealth could even now obtain a new indictment from the grand jury charging robbery armed with a dangerous weapon. See G. L. c. 277, § 63 (ten-year statute of limitations for armed robbery).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Genaro GUTIERREZ.
    17-P-371
    Appeals Court of Massachusetts.
    Entered: March 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 1993, the defendant, Genaro Gutierrez, pleaded guilty to a charge of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A. Twenty-three years later in January, 2016, he filed the instant motion to withdraw his plea and vacate the finding of guilty.

In the Superior Court, he argued that plea counsel failed to inform him that his criminal conviction would lead to his nearly automatic removal from the United States, and that this amounted to ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356 (2010), by which he had been prejudiced. Although the fact section of his memorandum in support of his motion correctly stated the date of the plea hearing, May 17, 1993, the memorandum argued incorrectly that the "plea was entered prior to the ruling in Padilla but after April 1, 1997, therefore Padilla should be applied retroactively." In Commonwealth v. Clarke, 460 Mass. 30, 31 (2011), the Supreme Judicial Court held that Padilla would be applied retroactively to collateral challenges to convictions after April 1, 1997, the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (1996 Act), the point at which deportation became "intimately related to the criminal process" and "nearly an automatic result for a broad class of noncitizen offenders." Padilla, 559 U.S. at 365, 366. See Commonwealth v. Sylvain, 466 Mass. 422, 436 (2013).

The motion judge noted correctly that the plea in this case was entered prior to the retroactivity date of April 1, 1997, and also held that the defendant had not met his burden under Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), in any respect.

On appeal, the defendant argues for the first time that the retroactivity date of Padilla should be pushed back to the effective date of the Immigration Act of 1990 (1990 Act). He offers a somewhat convoluted argument, the gravamen of which appears to be that, unlike many noncitizen criminal defendants, his deportation was made virtually automatic by that statute, rather than the 1996 Act. However, we need not decide whether, in the defendant's circumstances, Padilla is retroactive to the effective date of the 1990 Act. The defendant's affidavit does not assert that he was given inadequate immigration advice by counsel, nor does it aver that he would have gone to trial had he received appropriate immigration advice from counsel. He asserts only that, had he known that he could fight his case at trial rather than pleading guilty, he would have done so. Even if the affidavit were credited, as the motion judge correctly noted, it could not support a finding sufficient to meet the Saferian standard of a failure to provide information about immigration consequences, nor one that any such failure was prejudicial to the defendant.

Order denying motion to withdraw plea and vacate finding of guilt affirmed.

      It is possible that he is asserting that the 1996 Act had retroactive effect on his 1993 conviction, but even if that is his argument it changes nothing in our analysis. The defendant does not challenge the retroactive effect of the 1996 Act, whatever it may have been, on his 1993 conviction.


text:
    COMMONWEALTH v. Richard J. LEONARD.
    17-P-857
    Appeals Court of Massachusetts.
    Entered: March 23, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant, Richard J. Leonard, was convicted of operating a motor vehicle under the influence of liquor (OUI). In a subsequent jury-waived trial, the defendant was convicted of the third offense portion of the charge. More than four years after his conviction, he filed a motion for a new trial, which was denied. On appeal from the order denying his motion, he contends that reversal is warranted because his trial attorney provided ineffective assistance. We affirm.

Background. On the evening of October 14, 2011, Robert Fryns and his twelve year old son were stopped in Fryns's motor vehicle at a stop light in Dracut. As they waited for the light to change, they were struck from behind by a motor vehicle driven by the defendant. Fryns approached the defendant's motor vehicle and noticed that the defendant "seemed a little confused" and "was having a problem rolling down the window." Fryns smelled alcohol from the defendant's motor vehicle.

Dracut police Officer Tyler Gibson responded to the accident scene where he spoke with the defendant. During this conversation, the officer noticed that the defendant had bloodshot, glossy eyes and that his breath smelled of alcohol. He also noted that the defendant spoke in a slurred voice and "fumbled around" for his driver's license after being asked to produce it. Following the defendant's statement that he had recently stopped at a bar and had two beers, Officer Gibson administered two field sobriety tests. Based on the defendant's poor performance on these tests, the smell of alcohol on his breath, unsteadiness on his feet, glossy eyes, and slurred speech, Officer Gibson formed the opinion that the defendant was under the influence of alcohol.

Discussion. The defendant contends that his trial counsel rendered ineffective assistance by failing to adequately investigate his medical condition, "Chronic Obstructive Pulmonary Disease" (COPD), and present evidence at trial thereon. Accordingly, he argues, the judge abused her discretion in denying his motion for a new trial.

Motions for a new trial are committed to the sound discretion of the judge, Commonwealth v. Moore, 408 Mass. 117, 125 (1990), and "are granted only in extraordinary circumstances." Commonwealth v. Comita, 441 Mass. 86, 93 (2004). "Reversal for abuse of discretion is particularly rare where the judge acting on the motion was also the trial judge." Commonwealth v. Schand, 420 Mass. 783, 787 (1995). Where, as here, a motion for a new trial is based on ineffective assistance of counsel, the defendant must show that the behavior of counsel fell below that of "an ordinary, fallible lawyer," and that such failing "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). See Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979) (in reviewing ineffective assistance claims, appellate courts do not second guess "arguably reasoned tactical or strategic judgments" of counsel, but rather "require that such judgments be 'manifestly unreasonable' " [citation omitted] ); Commonwealth v. Millien, 474 Mass. 417, 432 (2016) (second prong of ineffective assistance test met if there is substantial risk of miscarriage of justice arising from counsel's failure).

In the present case, we discern no abuse of discretion in the judge's denial of the motion for a new trial. The motion judge, who was also the trial judge, found that the defendant's trial counsel "sought a continuance of the jury trial date so he could speak with [the defendant's] treating physician." She also found that "apparently [the treating physician] did not wish to be involved and thus he was not identified as a witness nor did he appear on the trial date." The judge then concluded that counsel had consulted with the medical provider in the "best position to offer testimony regarding the defendant's medical condition," and that "the medical records from less than 4 weeks after the defendant's arrest do not suggest that the defendant had been suffering any symptoms at the time of his arrest." Accordingly, she ruled that the defendant failed to satisfy the first prong of the ineffective assistance of counsel test. We agree with the judge's ruling. On this record there has been no showing that counsel's alleged failure to investigate and pursue a COPD defense was behavior that fell below that of an ordinary, fallible lawyer.

Even assuming, arguendo, that the defendant satisfied the first prong of the ineffective assistance test, he has not demonstrated that the failure to further investigate a COPD defense likely deprived him of an otherwise available, substantial ground of defense. Indeed, there is nothing in the affidavits or medical records proffered in support of his motion that supports the conclusory claim that the defendant's COPD could have caused him to appear intoxicated or to fail the field sobriety tests. See Commonwealth v. Laguer, 410 Mass. 89, 94 (1991) (finding no ineffective assistance where defendant's claims based on counsel's failures were "either predicated on facts that have not been established or are grounded on mere speculation with regard to likely prejudice"). The medical records reveal that the defendant first sought treatment on November 8, 2011, nearly four weeks after the OUI incident. On that date, he complained of a two week old cough and denied experiencing symptoms that could have affected his driving ability on the night of the accident. Moreover, the affidavit of the defendant's proposed expert provides no evidence to the contrary. Although that affidavit explains that persons with COPD can develop a condition that results in the retention of carbon dioxide, which "can be confused with alcohol intoxication," the medical records neither reference high levels of carbon dioxide nor the existence of any symptoms related thereto. Consequently, the defendant's claim lacks tangible evidentiary support and is speculative. Contrast Commonwealth v. Roberio, 428 Mass. 278, 281 (1998) ("A jury that believed the defendant's expert likely would have been influenced to return a verdict of not guilty by reason of insanity").

In sum, this is not a case where we have "serious doubt whether the jury verdict would have been the same had the [COPD] defense been presented." Millien, 474 Mass. at 432. As the judge concluded in her order, trial counsel for the defendant made reasonable strategic decisions, which we will not second guess on appeal. The judge was in a superior position to make such determinations, which were well within her discretion. See Schand, 420 Mass. at 787.

Order denying motion for new trial affirmed.

      During the field sobriety tests, which included the "one-legged stand" and the "walk and turn," the defendant was unable to follow basic instructions and was "unsteady on his feet."

      The judge noted the absence of any affidavit from trial counsel to support the claims in the motion for a new trial.

      According to the medical records, at the November 8, 2011, appointment the defendant denied shortness of breath, wheezing, chest congestion, or chest pain.

      The defendant's claim that his trial counsel was ineffective in failing to discuss his right to testify is similarly unavailing. The defendant does not identify in his affidavit what testimony, if any, he would have presented at trial. The claim is speculative and self-serving. See Commonwealth v. Lawrence, 68 Mass. App. Ct. 103, 105-106 (2007) (no ineffective assistance where defendant failed to suggest any potential expert testimony that might have been helpful to her case). See also note 2, supra.

      To the extent we do not discuss other arguments made by the defendant, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    COMMONWEALTH v. James MCLEOD.
    17-P-16
    Appeals Court of Massachusetts.
    Entered: March 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, James McLeod, appeals from his convictions of trafficking in cocaine and heroin, G. L. c. 94C, § 32E(b ), (c ). He argues that the motion judge erred in denying his motion to suppress evidence, and that the trial judge erred in denying his motions for a required finding of not guilty. We affirm.

Background. The jury could have found the following facts. While on patrol monitoring traffic on the Massachusetts Turnpike, Massachusetts State police Trooper David DiCrescenzo observed a grey Jeep. A routine registration check of the Jeep's license plates revealed that the vehicle was registered in Massachusetts, but the registered owner did not have a Massachusetts license. The trooper stopped the vehicle. During the course of the trooper's investigation, all three occupants were eventually ordered to exit the Jeep. After the driver gave Trooper DiCrescenzo his consent to search the vehicle, troopers conducted a search that revealed no contraband. Trooper DiCrescenzo intended to issue citations to the driver and the defendant and allow them to leave. As he was returning to his cruiser, however, he observed, sitting on the guardrail, a large bag of what appeared to be cocaine. On the ground near the bag was another package of what appeared to be heroin. The troopers then arrested all three occupants.

Discussion. 1. Motion to suppress evidence. The defendant argues that the motion judge improperly denied his motion to suppress the drug evidence because Trooper DiCrescenzo's exit order was not justified. In reviewing the denial of a motion to suppress, we accept the judge's findings of fact absent clear error but independently review his conclusions of law. See Commonwealth v. Vincent, 469 Mass. 786, 794 (2014).

The motion judge found the following from the evidence presented at the motion to suppress hearing. After hearing testimony from Trooper DiCrescenzo, the judge found that the three occupants were making frantic movements in the vehicle after the trooper activated his lights in order to effect a stop. He found that the Jeep made a series of abrupt lane changes before coming to a stop in the right lane, necessitating the trooper's use of his public address system to direct the driver to pull onto the shoulder. Upon approaching the vehicle from the passenger side, the trooper observed the defendant seated in the back seat, with his leg up on the seat and his back towards the trooper in a relaxed pose. He also detected the strong odor of marijuana and noticed air fresheners tucked into the vehicle's air vents. Trooper DiCrescenzo then asked the driver and the defendant for identification; the driver provided a Pennsylvania driver's license and the defendant a New York identification card. Due to the erratic operation of the vehicle and the strange movements of the occupants, the trooper ordered the driver to exit the vehicle. Trooper DiCrescenzo placed the driver in the back seat of his cruiser while he continued his investigation. While in the cruiser, the driver gave the trooper his consent to search the vehicle. While Trooper DiCrescenzo was still in his cruiser, he saw the defendant open a rear passenger door and start to exit the vehicle. The trooper ordered the defendant back into the Jeep and called for back-up. He then ran a computer inquiry for the driver and the defendant. He found that the defendant had an extensive criminal history for narcotics violations in New York. The trooper then went back to the Jeep and ordered the defendant out. The judge found that the initial stop was lawful and the exit order was justified given the frantic movements of the occupants in the vehicle, the vehicle's erratic operation prior to stopping, and the defendant's criminal history.

An exit order is justified when, viewing the circumstances of the stop in their totality, the officer has a reasonable basis to fear for his safety. See Commonwealth v. Stampley, 437 Mass. 323, 325-326 (2002). See also Commonwealth v. Gonsalves, 429 Mass. 658, 661-662 (1999). The defendant challenges the judge's conclusion that the circumstances surrounding the stop justified the trooper's reasonable fear for his safety. While movement within a vehicle is not always a furtive gesture justifying heightened suspicion, the judge credited the trooper's testimony that the movement he observed from the defendant and the vehicle's other occupants was "frantic," and that they appeared to be reaching around the interior of the vehicle. The trooper's uncontroverted testimony was that he was not sure if the vehicle's occupants were trying to "either retrieve or secrete something in the car." We discern no error in the judge's finding that these movements were "way outside of a normal motor vehicle stop." See Commonwealth v. Torres, 433 Mass. 669, 673 (2001). We consider these observations, as well as the erratic driving prior to the stop, the defendant's attempting to exit the vehicle from the rear passenger seat while the trooper was in his cruiser, and the defendant's criminal history, and conclude that the judge did not abuse his discretion in determining the exit order was proper. Compare Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 556-557 (1996). As such, the judge's conclusion that the troopers properly seized the drugs they discovered on the guardrail and on the ground nearby was also correct. Compare Commonwealth v. Rodriguez, 456 Mass. 578, 587, 590 n.12 (2010) (apparently abandoned evidence obtained as result of seizure may be suppressed if Commonwealth cannot meet burden of proving seizure was justified by reasonable suspicion or probable cause).

2. Sufficiency of the evidence. The defendant also alleges that the trial judge erred in twice denying his motion for a required finding of not guilty, claiming the Commonwealth presented insufficient evidence to prove beyond a reasonable doubt that he was engaged in a joint venture to distribute the heroin and cocaine. We disagree.

In order to support a theory of joint venture, the Commonwealth must prove that "the defendant knowingly participated in the commission of the crime charged, and that the defendant had or shared the required criminal intent." Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009). While direct knowledge of a defendant's intent is often difficult to obtain, "[k]nowledge or intent ... may be proved by inference from all the facts and circumstances developed at trial." Commonwealth v. Sabetti, 411 Mass. 770, 779-780 (1992). In addition, "[u]nder [a] joint venture theory, for a trafficking conviction, the defendant need not have possessed the drugs, actually or constructively.... He need only have shared the intent of the principal to distribute." Commonwealth v. Hernandez, 439 Mass. 688, 695 (2003).

At trial, the jury could have credited the following evidence: The bag found on the guardrail contained roughly fifty-nine grams of cocaine, an amount the Commonwealth's expert testified was more consistent with drug distribution than personal use. The bag found on the ground contained nearly one hundred grams of heroin, also, per the expert, an amount more consistent with distribution. See Commonwealth v. Roman, 414 Mass. 642, 645 (1993). The expert also opined that taken together, the other evidence presented was consistent with drug trafficking activity. This evidence included: the lack of paraphernalia for personal use of the drugs, such as a needle; the multiple air fresheners in the vehicle's vents; the seven cellular telephones found in a vehicle with three occupants; the occupants coming from New York City, a drug "source city"; the frantic movements exhibited by the occupants prior to being stopped followed by the defendant's feigned nonchalance; and the defendant wearing multiple pairs of pants, a tactic designed to frustrate a patfrisk. While circumstantial, that evidence, viewed in the "light most favorable to the Commonwealth," Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), supports an inference that the defendant shared the intent to distribute the drugs, and was sufficient to sustain his convictions beyond a reasonable doubt. See Commonwealth v. Jefferson, 461 Mass. 821, 826 (2012).

Judgments affirmed.

      The defendant was not wearing a seat belt and the trooper intended to issue him a citation for a seat belt violation.

      The defendant does not challenge the lawfulness of the stop.

      The trooper was also justified in ordering the defendant to exit the vehicle in order to search the vehicle after receiving the driver's consent. See Commonwealth v. Cruz, 459 Mass. 459, 467 (2011) (officers can order passenger to exit vehicle for "pragmatic reasons" such as facilitating a permissible warrantless search).


text:
    Lida LEVESQUE v. Patrick MCENANEY & others.
    17-P-721
    Appeals Court of Massachusetts.
    Entered: March 22, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Individually and as mother and next friend of Amber Haley and Kelsey Haley.

      Ann Marie Maserati; James Carroll; Robert Canning; Marlborough Hospital/UMass Memorial Healthcare, Inc.; John Doe; and John Doe Corporation.

   Lida Levesque filed this medical malpractice action against the health care professionals and hospital involved in her gall bladder removal surgery. Acting on a motion under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), a Superior Court judge dismissed the complaint on the ground of claim preclusion. Levesque appeals the dismissal as it pertains to three of the defendants, Ann Marie Maserati, James Carroll, and Robert Canning.

We assume for purposes of our review that the factual allegations of the complaint are true. See Goodwin v. Lee Pub. Schs., 475 Mass. 280, 284 (2016). In September of 2013, Levesque had her gall bladder surgically removed by Dr. Patrick McEnaney at Marlborough Hospital (hospital). The following month Levesque was readmitted to the hospital after testing confirmed that bile was leaking into her abdominal cavity. When her condition failed to improve, she sought a second opinion and was diagnosed with a "bile duct injury," requiring her to undergo numerous additional procedures.

In January of 2015, Levesque, individually and on behalf of her two minor children, filed a complaint for medical malpractice (the first action) against the hospital, McEnaney, and two John Doe defendants, seeking damages for the complications resulting from her surgery. With regard to the hospital, Levesque alleged, among other things, that it was vicariously liable for the "negligent acts or omissions of its physicians, agents, servants, and others employed by or under [its] control." Soon after the case was filed, a court order issued convening a medical malpractice tribunal under G. L. c. 231, § 60B. After reviewing Levesque's offer of proof, the tribunal determined that there was insufficient evidence "to raise a legitimate question of liability appropriate for judicial inquiry." When Levesque then failed to file the statutorily required bond within thirty days, a judge allowed the defendants' motion to dismiss the complaint with prejudice, while denying Levesque's emergency motion to enlarge the time to file the bond. Judgment entered in August of 2016, and Levesque did not appeal.

Instead, about one week later, Levesque filed the complaint that is the subject of this appeal, again seeking damages for the injuries she suffered from her surgery. In addition to the defendants named in the first action, the complaint names as additional defendants Maserati, the physician's assistant who assisted McEnaney during the surgery, and Carroll and Canning, the physicians who provided Levesque's postoperative care at the hospital. Levesque argues on appeal that the judgment in the first action does not bar her claims against these three newly named defendants.

We review de novo a judge's ruling on a motion to dismiss under Mass.R.Civ.P. 12(b)(6). See Goodwin, 475 Mass. at 284. Claim preclusion has three requirements: "(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits." DeGiacomo v. Quincy, 476 Mass. 38, 41 (2016), quoting from Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005). The only element at issue here is whether Maserati, Carroll, and Canning are in privity with the defendants in the first action.

Privity is a flexible concept that requires us to examine whether "the relationship between the one who is a party on the record and the non-party is sufficiently close to afford application of the principle of preclusion." DeGiacomo, 476 Mass. at 43 (quotation omitted). We conclude that a sufficiently close relationship exists. Our analysis is informed by Giedrewicz v. Donovan, 277 Mass. 563, 569 (1931), where the Supreme Judicial Court held that, if an employer is sued for a negligent act of its employee, a judgment for the employer "is a bar to a subsequent action by the same plaintiff for the same negligent act of the same employee." Applying that ruling here, the judgment for the hospital in the first action-in which Levesque asserted that the hospital was vicariously liable for the acts of its agents or employees-operates to bar Levesque's current claims against Maserati, Carroll, and Canning. Cf. Gifford v. Westwood Lodge Corp., 24 Mass. App. Ct. 920, 922 (1987) (plaintiff was barred from pursuing claims against hospital based on acts of its agents, where she "had pressed [those] claims against [the agents] and lost").

Attempting to distinguish Giedrewicz, Levesque argues that the record does not establish that Maserati, Carroll, and Canning were "subject to the direction and control of the [d]efendant [h]ospital." But the complaint expressly alleges that Maserati, Carroll, and Canning were "at all material times hereto" acting as "employees, agents or servants of" the hospital. The complaint also alleges that the negligent conduct occurred while they were treating Levesque at the hospital. Levesque has thus pleaded herself out of court on this issue.

Judgment affirmed.

      The defendants in this case attached records from the first action to their motion to dismiss. The judge could take judicial notice of those records. See Brookline v. Goldstein, 388 Mass. 443, 447 (1983) ; Jarosz v. Palmer, 436 Mass. 526, 530 (2002).

      To pursue a claim of medical malpractice, a plaintiff must present an offer of proof to a tribunal composed of a Superior Court justice, an attorney, and a physician (or, if the defendant is not a physician, "a representative of that field of medicine in which the alleged tort ... occurred"). G. L. c. 231, § 60B, inserted by St. 1975, c. 362, § 5. If the tribunal makes a finding for the defendant, "the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of six thousand dollars" within thirty days. Id., as amended by St. 1986, c. 351, § 21.

      Our ruling would be the same even had Levesque not named John Doe defendants in the first action. Thus, we need not address Levesque's contention that the judge erred in this respect.

      For the first time at oral argument, Levesque claimed that she was not bound by the allegations of the complaint because the defendants, by attaching documents to their motion to dismiss, converted it to one for summary judgment. We see no merit in this contention because the judge considered only the pleadings and matters of public record in ruling on the motion. In any event, Levesque has pointed to nothing in the record showing the existence of a genuine dispute as to whether Maserati, Carroll, and Canning were acting as the hospital's agents when they treated her there.


text:
    David L. FULLER & another v. DEUTSCHE BANK NATIONAL TRUST CO., trustee, & another.
    17-P-211
    Appeals Court of Massachusetts.
    Entered: March 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Betsy L. Fuller.

      Of the CDC Mortgage Capital Trust 2003-HE4.

      Ocwen Loan Servicing, LLC.

   This suit was brought by the plaintiff homeowners alleging that defendant Deutsche Bank National Trust Co., as trustee for the CDC Mortgage Capital Trust 2003-HE4 (Deutsche Bank), was not a valid mortgagee at the time it foreclosed on the plaintiffs' real property. Although there is an assignment of the mortgage to Deutsche Bank dated June 4, 2013, and recorded with the registry of deeds on August 18, 2013, the plaintiffs argue that because the assignment was made after the closing date in the pooling and servicing agreement (PSA), and because the assignment was made directly by the lender, rather than the depositor (Morgan Stanley ABS Capital I Inc.), under the PSA, Deutsche Bank cannot be and is not the holder of the mortgage.

The first of these contentions, with respect to the closing date of a PSA, was rejected in our decision in Strawbridge v. Bank of N.Y. Mellon, 91 Mass. App. Ct. 827 (2017). The second, with respect to the identity of the assignor, was rejected in Ressler v. Deutsche Bank Trust Co. Americas, 92 Mass. App. Ct. 502 (2017), which relied on Strawbridge. Both were decided during the pendency of this appeal and after the filing of the plaintiffs' brief in this case. These cases hold that failure of an assignment to a trust to comply with the terms of the trust under which it is permitted to hold property renders the assignments merely voidable and not void, and that a mortgagor of real property lacks standing to challenge the assignment on those grounds. Whatever our view of that question might be as an original matter, we are bound by Strawbridge, as was the court in Ressler, and therefore are constrained to affirm the judgment of the trial court. The complaint also contained a claim for slander of title allegedly wrought by Deutsche Bank's recording in the Middlesex County registry of deeds that it owned a defeasible fee interest in the plaintiffs' residence and had contractual rights to enforce the power of sale. All agree this claim fails given our conclusion with respect to the claim based on the assignment of the mortgage.

The plaintiffs also allege that an earlier assignment of the mortgage to Deutsche Bank amounted to an assignment to a fictitious or nonexistent entity and was therefore void. The 2013 assignment to Deutsche Bank was purportedly undertaken on behalf of Deutsche Bank as trustee to those registered holders as described in the earlier assignment. Because they were not raised in their memorandum opposing summary judgment, though, the claims that the plaintiffs have standing to allege that the first assignment was ineffective or that the second assignment was from an entity that did not hold the mortgage because it did not exist, to whatever extent the plaintiffs raise them here, have been waived.

Finally, a separate count of the complaint alleged that the servicer of the loan, defendant Ocwen Loan Servicing, LLC, had committed fraud by purchasing and charging the plaintiffs for forced place insurance despite knowing that the plaintiffs' property was already insured. The motion judge concluded that the plaintiffs had failed to establish reliance. The only argument made by the plaintiffs on appeal with respect to this count appears to refer to the obligation of good faith imposed upon one with the power of sale, which may be used to void a sale. See Sandler v. Silk, 292 Mass. 493, 496 (1935) ; U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 647 n.16 (2011). Sandler and Ibanez, however, do not hold that a loan servicer's bad faith can void a sale by a mortgagee, so the plaintiffs' argument fails on the merits.

The defendants' request for appellate attorney's fees is denied.

Judgment affirmed.


text:
    320 FALL RIVER, LLC, individually and as trustee, v. BOARD OF ASSESSORS OF SEEKONK & others.
    17-P-888
    Appeals Court of Massachusetts.
    Entered: March 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of The Firefly CCRC Condominium Trust, and on behalf of others similarly situated.

      Tax assessor for the town of Seekonk, and the tax collector and treasurer for the town of Seekonk.

   The plaintiffs brought this action in the Superior Court seeking injunctive relief and a declaratory judgment that the defendants' tax assessment and valuation of their recreational land (and that of at least one other landowner) constituted illegal taxation. In a comprehensive written decision, a Superior Court judge allowed the defendants' motion to dismiss, because the plaintiffs had failed to exhaust their administrative remedies before filing suit. Specifically, the judge reasoned that, since the "gravamen of [the plaintiffs'] complaint sounds in the valuation of their own property," the proper avenue for relief was the administrative tax grievance procedure established by G. L. c. 61B, § 14. On appeal, the plaintiffs claim this case fits within an exception to the general requirement that administrative remedies be exhausted before a claim can be brought in the Superior Court. We disagree and affirm.

Discussion. We review the allowance of a motion to dismiss de novo, "look[ing] beyond the conclusory allegations in the complaint and focus[ing] on whether the factual allegations plausibly suggest an entitlement to relief." Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "As a general rule, where an administrative procedure is available, we require a party seeking declaratory relief first to exhaust the opportunities for an administrative remedy." DeMoranville v. Commissioner of Rev., 457 Mass. 30, 34 (2010), quoting from Space Bldg. Corp. v. Commissioner of Rev., 413 Mass. 445, 448 (1992). Here, it is undisputed that the plaintiffs did not initiate administrative proceedings before the board of assessors of Seekonk and, subsequently, the Appellate Tax Board, until after they had filed their complaint in Superior Court. Under such circumstances, where "the entire controversy is within the exclusive jurisdiction of an administrative agency, the doctrine [of primary jurisdiction] ordinarily results in the dismissal of judicial proceedings begun without prior resort to the agency." J. & J. Enterprises v. Martignetti, 369 Mass. 535, 540 (1976).

Only if such administrative remedy is "seriously inadequate" may a party bypass the administrative process and proceed directly to the Superior Court. DeMoranville, supra. Serious inadequacy in the context of property taxation may be established by alleging a pervasively unlawful assessment scheme. See Bettigole v. Assessors of Springfield, 343 Mass. 223, 236 (1961) ("Where every assessment has been made on a wrong basis, the defects in the scheme cannot be cured by the sporadic correction of individual assessments" [emphasis supplied] ).

The plaintiffs argue that the Superior Court had jurisdiction in this case because the claims fall within the Bettigole exception. We disagree. Unlike in Bettigole, the plaintiffs' complaint did not allege a comprehensive, fundamentally flawed assessment scheme affecting the valuation and taxation of all properties in the municipality. Rather, the gravamen of the complaint alleged individualized claims that the defendants had incorrectly assessed the plaintiffs' property value as required by G. L. c. 61B. Accordingly, we discern no error in the judge's conclusion that, in these circumstances, the statutory administrative remedy available under G. L. c. 61B, § 14, was adequate to address the plaintiffs' claims. See DeMoranville, supra at 34-38. The order allowing the defendant's motion to dismiss for lack of jurisdiction was proper.

Judgment affirmed.

      General Laws c. 61B, § 14, inserted by St. 1979, c. 713, § 1, provides, in pertinent part:
      "Any person aggrieved by any determination or assessment by the board of assessors under this chapter may within sixty days of the date of notice thereof apply in writing to the assessors for modification or abatement thereof. Any person aggrieved by the refusal of the assessors to modify such a determination or make such an abatement or by their failure to act upon such an application may appeal to the appellate tax board within thirty days after the date of notice of their decision or within three months of the date of the application, whichever date is later."

      The Bettigole plaintiffs, in addition to demonstrating illegal taxation impacting their own individual properties, showed "a comprehensive and intentional scheme of disregarding determinations of fair cash value by disproportionate and discriminatory percentage adjustments of such value in computing [all] assessments," such that individualized administrative remedies were impractical. Bettigole, 343 Mass. at 233.

      Because we discern no error in the dismissal for lack of jurisdiction, we need not address the plaintiff's argument regarding the class action allegations.


text:
    NATIONAL LUMBER COMPANY v. Matthew L. FINK.
    17-P-386
    Appeals Court of Massachusetts.
    Entered: March 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   This is an appeal from the summary judgment dismissing National Lumber Company's (National Lumber's) claims against the defendant, Matthew L. Fink. Viewed in the light most favorable to National Lumber, against which summary judgment entered, the summary judgment record reveals the following:

In August of 2007, MFN LLC (MFN), owned in part by Nicholas Sivieri, signed a credit agreement with National Lumber to purchase lumber and building materials. In August of 2008, Fink, who was not a member of MFN or otherwise affiliated with it, signed an agreement guaranteeing MFN's debts to National Lumber. In July of 2009, MFN executed a material supply purchase agreement with National Lumber to purchase building materials to be used to construct a residential dwelling known as the "Hajjar project." From July, 2009, until April 26, 2010, MFN purchased said materials from National Lumber for the Hajjar project and submitted multiple "change orders," which added to and subtracted from the list of building materials outlined in the material supply purchase agreement.

On April 26, 2010, MFN, through Sivieri, filed a certificate of cancellation with the Secretary of State. That same day, Sivieri filed a certificate of organization for a new company, NAS Development LLC (NAS). According to Sivieri's deposition testimony, MFN was dissolved and NAS formed because the other members of MFN had moved to Brazil.

After MFN was dissolved, Sivieri continued to work uninterrupted on the Hajjar project, ordering building materials and submitting additional change orders. The balance with National Lumber as of September 30, 2010 was (at least as Fink views it) paid in full by October 7, 2010. Sivieri signed three subsequent change orders, change orders 16, 17, and 18, in October, 2010. The last two deliveries pursuant to these change orders occurred in October and November of 2010. MFN did not pay for these materials, and this nonpayment is the subject of this litigation.

The parties dispute what, if anything, Sivieri told any National Lumber employee, before National Lumber had made its final deliveries, with respect to NAS and MFN. According to National Lumber's chief executive officer, Steven Kaitz, though, whose claims we must credit at the summary judgment stage, National Lumber did not know of MFN's dissolution until after this litigation commenced. After MFN's dissolution, Sivieri did begin to communicate with National Lumber employees using his NAS electronic mail (e-mail) account, and there is some evidence that invoices for the relevant materials were sent to him at the NAS address. However, he also sent e-mails from this account to his and his assistant's MFN e-mail addresses, and he and his assistant replied to e-mails that were sent to their MFN addresses. Furthermore, change orders 16, 17, and 18-all signed in October of 2010-by their terms state that Sivieri was signing on behalf of MFN.

Analysis. Viewing the evidence in the summary judgment record and the reasonable inferences that may be drawn therefrom in the light most favorable to the nonmoving party, here National Lumber, summary judgment is appropriate only when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Barrasso v. Hillview W. Condominium Trust, 74 Mass. App. Ct. 135, 137 (2009). Our review of the record is de novo. Ibid.

The motion judge granted Fink's motion for summary judgment on two independent grounds. First, she held that, "once MFN was dissolved and National Lumber began to do business with NAS, of which there is ample evidence, Fink was no longer the guarantor of MFN's debts." We read this to mean that, as a matter either of law or of undisputed fact, once MFN was dissolved, National Lumber stopped doing business with MFN and started doing business with NAS, and therefore, since Fink was not a guarantor for NAS, Fink could not be liable for any of the postdissolution debts. But, as our discussion of the evidence makes clear, there is also ample evidence from which a jury could infer that National Lumber was doing business with MFN postdissolution. This fact is material, and genuinely disputed, and the judge should not have granted summary judgment on this ground. Whether the change orders were really submitted on behalf of NAS, the course of conduct between the parties, the knowledge of National Lumber, the nature of "change orders" like those at issue here, and other circumstances surrounding the transactions will have to be explored at trial.

The judge's second ground for granting summary judgment to Fink draws from the law governing what LLCs are permitted to do postdissolution. Even after dissolution, an LLC may continue to do business in a limited form:

"Upon dissolution and notwithstanding the filing of a certificate of cancellation pursuant to section 14, a limited liability company may continue its existence but shall not carry on any business except as necessary to wind up its affairs or distribute its assets which may include, but shall not be limited to, prosecuting and defending suits, whether civil, criminal or administrative, gradually settling and closing the limited liability company's business, disposing of and conveying the limited liability company's property, discharging or making reasonable provision for the limited liability company's liabilities and distributing to members any remaining assets of the limited liability company, without affecting the liability of members and managers and without imposing liability on a liquidating trustee." G. L. c. 156C, § 45(b ), as appearing in St. 2014, c. 371, § 1.

Postdissolution acts that are not "winding up" activity are ultra vires. See Salvato v. DiSilva Transp. Co., 329 Mass. 305, 308 (1952).

Applying these principles, the motion judge reasoned as follows: "Even if National Lumber could prove that the change orders were part of the original contract," she wrote-meaning that the change orders were part of a contract between National Lumber and MFN so that National Lumber was in fact doing business with MFN, not NAS-"the continuation of such business as the LLC was organized for after its dissolution is not considered part of winding up." That is, she concluded as a matter of law that this was not "winding up" activity, and that, if Sivieri had entered these change orders on behalf of MFN, he was acting ultra vires and, as a matter of law, while Fink would have been liable for proper winding up activity, he could not be liable for Sivieri's ultra vires actions.

To begin with, the factual record is insufficiently developed to support the motion judge's conclusion that this was not winding up activity within the meaning of the statute. National Lumber argues that the change orders were anticipated modifications of an underlying agreement obligating MFN to complete further purchases from National Lumber. If the change orders were anticipated modifications of the original agreement, this may be relevant to whether submitting them was winding up activity, as it might mean that the activity is properly characterized as "gradually settling and closing the limited liability company's business ... [or] discharging or making reasonable provision for the limited liability company's liabilities ...." G. L. c. 156C, § 45(b ). There is, however, insufficient evidence in the record to allow us to determine what the nature of these change orders is, what the status of the Hajjar project was, and thus whether under the applicable standard submitting the change orders amounts to winding up activity; there are thus genuine issues of fact about the matter that must be resolved. Thus, the motion judge erred in granting summary judgment on this ground as well.

Beyond this, the motion judge concluded that if MFN's acts were ultra vires, Fink would be able to raise this as a defense. National Lumber challenges this assumption. It argues first that the terms of the guaranty agreement preclude Fink from raising a defense not available to MFN, and that MFN would have no ultra vires defense because it benefited from the change orders. See Nowell v. Equitable Trust Co., 249 Mass. 585, 602 (1924) (corporation cannot avail itself of ultra vires defense when other party has performed its contractual obligations in good faith and corporation received benefit of performance). In a footnote, the judge rejected the proposition that MFN would have no ultra vires defense because it benefited from the change orders:

"National Lumber argues that MFN cannot accept the benefits of the change order contracts, the 'additional materials,' and then set up a valid ultra vires defense to escape liability thereon. See Commissioner of Banks v. Tremont Trust Co., 259 Mass. 162, 180 (1926). After the dissolution of MFN, however, National Lumber was doing business with Sivieri; MFN did not accept the benefits of the change order contracts."

This analysis is erroneous because, for the reasons given above, it relies upon a disputed material fact: that National Lumber was not doing business with MFN upon dissolution. If the change orders were made on behalf of MFN, MFN likely got the benefit of National Lumber's performance. If this is the case, and if National Lumber's interpretation of the guaranty agreement is correct, then Fink would have no ultra vires defense. Since a trial on the disputed material fact is warranted in any event, we leave it up to the trial judge to consider the contract-based argument in the first instance.

National Lumber also argues that, as a matter of the law of suretyship, Fink could not raise ultra vires as a defense even if it could be raised by MFN. See Winn v. Sanford, 145 Mass. 302, 303-304 (1887) (surety cannot raise defenses "personal" to principal obligor, such as incapacity, even if principal obligor could raise such defense); Matter of L & S Indus., Inc., 989 F.2d 929, 934 (7th Cir. 1993) (ultra vires is personal defense that cannot be raised by surety); Restatement (Third) of Suretyship and Guaranty, § 34(1)(b) (1996) (surety cannot raise incapacity as defense even if available to principal obligor). Again, we leave it for the trial judge to consider this argument in the first instance.

The summary judgment is reversed, and the case is remanded to the Superior Court for further proceedings consistent with this memorandum and order.

So ordered.

Reversed and remanded.

      The plaintiff's claims against the other two defendants, Nicholas A. Sivieri and MFN LLC, were resolved by a default judgment and are not the subject of this appeal.

      National Lumber did not appeal from the denial of its cross motion for summary judgment.

      We do not read this to mean that, as a matter of law, had MFN been winding up its business, as allowed by the statute, see infra, Fink would not have been its guarantor-the motion judge correctly indicated elsewhere that he would have been.

      Indeed, depending on the circumstances it might be possible to view the change orders that way even if they are new contracts, necessary to finish the work on the outstanding project as part of winding up MFN's business.


text:
    Claudio BRANDAO & others v. JAN-PRO FRANCHISING INTERNATIONAL, INC.
    17-P-636
    Appeals Court of Massachusetts.
    Entered: March 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      We take the plaintiff's name as it is spelled in the complaint.

      Rommel Lima and Tony Barros, on behalf of themselves and all others similarly situated. Brandao's claims were previously dismissed and he was ordered to arbitrate his claims against the defendant Jan-Pro Franchising International, Inc. (Jan-Pro); Lima's claims were dismissed based on a forum selection clause in his contract with an intermediate franchisor of Jan-Pro. The only claims at issue here are those of Barros.

   The defendant Jan-Pro Franchising International, Inc. (Jan-Pro) appeals, under G. L. c. 251, § 18(a )(1), from a Superior Court judge's order denying its motion to compel arbitration of claims brought against it by the plaintiff Tony Barros for misclassifying him as an independent contractor and for violating his rights under the Wage Act. See G. L. c. 149, §§ 148, 148B, 150. The motion judge held that Jan-Pro had waived its right to compel arbitration. We vacate that portion of the order and remand for further proceedings on the motion.

Background. Without setting forth the full history of this case, it suffices to say that in August, 2015, Jan-Pro moved to compel plaintiff Claudio Brandao to arbitrate his claims, under an arbitration clause in Brandao's contract with an intermediate franchisor of Jan-Pro. The plaintiffs moved in February, 2016, to amend their complaint to add Barros as a named plaintiff. Jan-Pro opposed the motion to amend to add Barros, and in the alternative it moved to compel Barros to arbitrate his claims, under an arbitration clause in a franchise agreement (the agreement) between Tony Barros Consultation, LLC, and an intermediate franchisor of Jan-Pro. A judge allowed the motion to amend and allowed Jan-Pro's motion to compel Brandao to arbitrate, but did not expressly rule on Jan-Pro's similar motion as to Barros. In June, 2016, a "final judgment" entered, dismissing the case. See note 2, supra.

The parties subsequently disagreed over the meaning of the judgment, and in August, 2016, the plaintiffs moved to correct the judgment to state that it did not apply to Barros. Jan-Pro opposed the motion, arguing among other things that the logic of the previous ruling compelling Brandao to arbitrate applied equally to Barros. A second judge (the motion judge) granted the motion to correct the judgment, but allowed Jan-Pro to supplement its previously-filed motion to compel Barros to arbitrate, and set a date to hear the motion.

Jan-Pro then filed, in February, 2017, a motion to dismiss Barros's claims or, in the alternative, to compel him to arbitrate them. Jan-Pro's motion to dismiss advanced two grounds: (1) that Barros individually lacked standing to claim misclassification, because only his LLC, rather than he individually, was a franchisee; and (2) that the LLC had recently sold the franchise, and in connection therewith both the LLC and Barros individually had executed a general release of all claims against Jan-Pro (among others), so that Barros's claims were barred or moot. Jan-Pro attached to its motion various materials in support of these arguments, as well as in support of its request in the alternative to compel arbitration.

In opposition, Barros argued that Jan-Pro, by moving to dismiss and by attaching materials outside the pleadings that assertedly required the motion to be treated as seeking summary judgment, had waived its right to compel arbitration. The motion judge agreed, leading Jan-Pro to appeal.

Discussion. In determining whether a party has waived the right to arbitration, "[t]he essential question is whether, under the totality of the circumstances, the defaulting party acted 'inconsistently' with the arbitration right." Home Gas Corp. of Mass., Inc. v. Walter's of Hadley, Inc., 403 Mass. 772, 775 (1989) (Home Gas Corp. ), quoting from Martin v. Norwood, 395 Mass 159, 162 (1985). "[I]n light of the strong Federal policy favoring arbitration," Martin, supra at 162, and the corresponding "strong public policy favoring arbitration [set out in G. L. c. 251] as an expeditious alternative to litigation for settling commercial disputes," Home Gas Corp., supra at 774, "[a] court must not infer lightly a waiver of the right to arbitrate a dispute." Martin, supra at 162. We review a finding of such a waiver for abuse of discretion, which "requires us to determine whether the motion judge's decision resulted from 'a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives.' " Chamberland v. Arbella Mut. Ins. Co., 91 Mass. App. Ct. 680, 684 (2017), quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Factors relevant to the decision include:

" '[1] whether the party has actually participated in the lawsuit or has taken other action inconsistent with his right ... [2] whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit by the time an intention to arbitrate was communicated by the defendant to the plaintiff ... [3] whether there has been a long delay in seeking a stay or whether the enforcement of arbitration was brought up when trial was near at hand .... Other relevant factors are [4] whether the defendants have invoked the jurisdiction of the court by filing a counterclaim without asking for a stay of the proceedings ... [5] whether important intervening steps (e.g., taking advantage of judicial discovery procedures not available in arbitration ...) had taken place ... and [6] whether the other party was affected, misled, or prejudiced by the delay ...' (citations omitted)."

Home Gas Corp., 403 Mass. at 775-776, quoting from Reid Burton Constr., Inc. v. Carpenters Dist. Council, 614 F.2d 698, 702 (10th Cir.), cert. denied, 449 U.S. 824 (1980). See Carpenter v. Pomerantz, 36 Mass. App. Ct. 627, 632 (1994).

Here, factors two through five plainly weighed against a conclusion of waiver. Jan-Pro communicated its intention to seek arbitration even before Barros was a party, pressed that position continuously, and never filed a counterclaim, took discovery, or allowed other important intervening steps to occur before filing its February, 2017, motion to compel arbitration. As for factor six (prejudice), the motion judge did not rely on it; although Barros argues on appeal that he has been prejudiced by the delay occasioned by Jan-Pro's combined motion and this appeal, the delay is equally attributable to Barros's decision to assert an ill-founded waiver argument in the first place.

The only conceivable basis for the argument-and the sole factor on which the motion judge relied-was Jan-Pro's decision to include, in its motion to compel arbitration, two arguments that might require dismissal of the claims on other, arguably threshold, grounds, and to attach materials to the motion that, the judge concluded, "required" it to be treated as one seeking summary judgment. See Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974). The court viewed such a substantive filing as implicating factor one-action inconsistent with Jan-Pro's arbitration right-and thus as waiving Jan-Pro's right to arbitration.

The difficulty is that the motion judge was not required to, and did not, treat Jan-Pro's motion as one for summary judgment. Rather, the judge resolved Jan-Pro's argument that Barros individually lacked standing to claim misclassification by ruling that, "at this [m]otion to [d]ismiss stage, this court must accept as true all the allegations in the [f]irst [a]mended [c]omplaint," and "[g]iven the standard of review of a [m]otion to [d]ismiss ... this motion must be denied." And the judge dealt with Jan-Pro's argument that the release barred Barros's claims by stating, without explanation, that this was "an issue this court has previously determined adverse[ly] to Jan-Pro."

In short, it appears that the judge gave no consideration to the materials attached to Jan-Pro's motion to dismiss and denied it without converting it to a motion for summary judgment. It was thus an abuse of discretion to go on to rule that Jan-Pro, by filing a motion that the judge was required to treat as a summary judgment motion, had waived its right to arbitration. "A court must not infer lightly a waiver of the right to arbitrate a dispute." Martin, 395 Mass. at 162.

Conclusion. So much of the judge's order as denied Jan-Pro's motion to compel arbitration is vacated, and the case is remanded for further proceedings consistent with this memorandum and order. In all other respects, the order is affirmed.

So ordered.

Vacated in part and remanded; affirmed in part.

      For simplicity, we refer to Jan-Pro's "right" to compel arbitration, without implying any view on Barros's alternative arguments that, even absent waiver, Jan-Pro had no such right. See note 7, infra.

      The agreement was signed by Barros in his capacity as president of Tony Barros Consultation, LLC, the named franchisee. Barros individually may also have served as a guarantor of a promissory note executed in connection with the agreement. We use the term "agreement" without implying any view on the precise nature of Barros's or the LLC's relationship with Jan-Pro.

      The agreement required the parties to submit any disputes to nonbinding mediation before seeking arbitration, and thus Jan-Pro's motion likewise sought to compel mediation and then, if necessary, arbitration. Although Barros argued, and the motion judge agreed, that Jan-Pro's request to compel mediation supported a conclusion that Jan-Pro had waived the right to compel arbitration, neither Barros nor the motion judge cited any authority for that proposition. The argument is in obvious tension with parties' ability to contract for alternative dispute mechanisms leading up to arbitration and, as discussed infra, both Federal and State policy strongly favor arbitration. An agreement to mediate as a condition precedent to arbitration has been held enforceable, see HIM Portland, LLC v. DeVito Builders, Inc., 317 F.3d 41, 44 (1st Cir. 2003), although whether such a condition precedent has been satisfied may be for the arbitrator to determine. See Chorley Enterprises, Inc. v. Dickey's Barbecue Restaurants, Inc., 807 F.3d 553, 565 (4th Cir. 2015), citing BG Group PLC v. Republic of Argentina, 134 S. Ct. 1198, 1207-1208, (2014). See also Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85-86 (2002). Based on the current record and the parties' arguments, we see no basis to conclude that Jan-Pro's request to compel mediation prior to arbitration, in accordance with the agreement, constituted a waiver of its right to compel arbitration. For convenience, therefore, we refer infra solely to Jan-Pro's right to compel arbitration, with the understanding that Jan-Pro's request encompasses mediation as well.

      Jan-Pro also argued that Barros had waived his right to oppose arbitration by filing, prior to clarification of the scope of the June, 2016, final judgment, a demand for arbitration with the American Arbitration Association. The motion judge rejected this argument, and Jan-Pro does not press it in this appeal.

      Barros alternatively argued that he should not in any event be compelled to arbitration, because Jan-Pro was not a party to the agreement, because the arbitration clause violated the National Labor Relations Act, and because the clause was unconscionable. The motion judge did not reach these issues, and neither do we. Any consideration of Barros's alternative arguments on remand would not, of course, furnish any additional basis for concluding that Jan-Pro had waived arbitration.

      Rule 12(b) provides in pertinent part:
      "If, on any motion asserting the defense numbered (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56" (emphasis added).
      The judge had the discretion to exclude from consideration the materials attached to Jan-Pro's motion, to the extent they did not relate to the request to compel arbitration.

      Jan-Pro asserts that there is no such ruling in the record of this case, and we find no indication that the motion judge or any other judge made such a ruling. Barros's attempt on appeal to explain how the judge might be understood to have implicitly resolved the issue through a prior procedural ruling is unpersuasive.

      We therefore need not decide whether filing a summary judgment motion in the circumstances of this case, which include the other Home Gas Corp. factors discussed supra, would constitute a waiver of arbitration. Jan-Pro did not, and seemingly could not, under G. L. c. 251, § 18(a )(1), appeal the denial of its motion to dismiss, and the arguments raised in that motion would not be before the judge on remand unless Jan-Pro chose to renew them in another motion.

      To the extent that the judge's memorandum of decision may be read as finding a waiver based in part on the order in which Jan-Pro, in the body of a single motion, made its arguments for dismissal and to compel arbitration, this, too, gave excessive weight to a factor that was irrelevant in the circumstances.


text:
    ADOPTION OF JANET.
    17-P-977
    Appeals Court of Massachusetts.
    Entered: March 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   Both the mother and the father appeal the termination of their parental rights with respect to the child. We consider the arguments of each parent in turn and affirm.

Background. The child was born in July, 2011. In March, 2013, when the child was twenty months old, the Department of Children and Families (department) filed a care and protection petition after investigating a report filed pursuant to G. L. c. 119, § 51A (51A report), and the child was removed from the mother's custody. The child has lived in a preadoptive home since September, 2014, and was almost five years old when trial concluded in 2016.

Discussion. 1. The mother's arguments. a. Current unfitness. The mother argues that the department failed to prove her current unfitness by clear and convincing evidence. "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012).

As an initial matter, the mother argues that the judge erroneously relied on evidence of prior acts related to three older children who were not parties to the petition. Assuming without deciding that this evidence was improper, there was nonetheless clear and convincing evidence supporting the finding that the mother was currently unfit to care for this child based on her substance abuse, criminal history, domestic violence, and lack of stable housing.

There was ample evidence in the record of the mother's struggle with substance use. The mother contends that the judge relied on a stale history of her substance abuse, failed to give appropriate weight to her positive gains, and impermissibly considered the substance of a 2016 51A report alleging that the she used heroin. Despite evidence about her recent sobriety, the mother tested positive for drugs over forty times during the pendency of the department's involvement with this child and, on other occasions, refused to provide drug screens in violation of her service plan. Furthermore, there was a concern that the mother tampered with urine tests, and that she was not honest about her sobriety. The judge also considered the mother's ongoing criminal activity, including twenty-three criminal charges and periods of incarceration after the child's removal from the mother's care, which the mother concedes was linked to her substance abuse. The judge permissibly considered the history of substance use and its impact on the child. See Adoption of Serge, 52 Mass. App. Ct. 1, 7 (2001).

The mother also claims error in the judge's consideration of the history of domestic violence with the father. Although the mother completed two domestic violence programs, she continued to "protect Father and mitigate, or outright deny, the occurrence of domestic violence." The evidence of domestic violence was relevant where the mother told the court clinician that she might consider a future relationship with the father and stated that she would meet any future violence with violence, and where she failed to recognize the danger of domestic violence to herself and the child. See Adoption of Ramon, 41 Mass. App. Ct. 709, 718 (1996) (parents with long and documented history of domestic violence were not merely temporarily unfit).

Additionally, the judge permissibly considered the mother's housing instability as one factor of her unfitness. See Care & Protection of Lillith, 61 Mass. App. Ct. 132, 136 (2004) (pattern of housing instability was relevant to fitness).

We are satisfied that the judge adequately assessed the evidence, including the evidence favorable to the mother, and that he did not abuse his discretion in finding the mother unfit based on a combination of factors. Although the mother disputes the judge's weighing of the evidence and credibility determinations, "[w]e see no basis for disturbing the judge's view of the evidence." Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

b. Termination of the mother's parental rights. The mother further argues that the judge's conclusions of law supporting the termination of her parental rights were flawed. "We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011).

The judge issued 196 factual findings and forty-one conclusions of law in this case. "[T]he judge's factual findings were specific and detailed, demonstrating that close attention was paid to the evidence and the fourteen factors listed in G. L. c. 210, § 3(c )." Adoption of Nancy, 443 Mass. 512, 516 (2005). The judge adequately concluded that factors ii, iii, iv, vi, vii, viii, ix, x, and xii were applicable. It is clear that the judge's determination was based "on a constellation of factors that pointed to termination as being in the best interests of the child," and is supported by ample evidence. Adoption of Greta, 431 Mass. 577, 588 (2000).

2. The father's arguments. The father argues that several alleged trial errors were prejudicial and that there was not clear and convincing evidence of his unfitness. We disagree.

There was clear and convincing evidence of the father's unfitness and grounds for termination of his parental rights based on his aggressive behavior, criminal history, inability to maintain stable housing, and inability to comply with the service plan. The judge made specific findings regarding domestic violence, the father's aggressive behaviors, and the impact of those behaviors on the child.

Although the father contends that certain hearsay statements regarding domestic violence were improperly considered, the father testified at trial and acknowledged domestic violence in his relationship with the mother, while also minimizing the level of violence and justifying it. The father failed to benefit from services and continued to demonstrate aggressive behaviors, even threatening an individual who accompanied the mother to court on the first day of trial. The judge characterized the father's history of domestic violence and his aggressive and violent nature as grievous shortcomings that affected the child's emotional and physical well-being. In one instance, the father directed his aggression at a department social worker while the social worker was holding the child, and the child was upset from the incident. The judge also credited the preadoptive parent's testimony that the child was anxious and aggressive surrounding visits with each parent. We defer to the judge's credibility assessments and the weight that he placed on both the father's participation in services related to domestic violence and the impact of the father's actions on the child. See Adoption of Quentin, 424 Mass. at 886 n.3.

Additionally, the father has an extensive criminal history, including having been arraigned on eighty-five criminal charges and serving periods of incarceration during the pendency of the department's involvement with the child. Accordingly, the judge concluded that the father's continued criminal involvement would place the child at risk. See Adoption of Cadence, 81 Mass. App. Ct. 162, 168-169 (2012).

The father also contends that the court clinician provided impermissible hearsay testimony that suggested that the father was not truthful about his engagement in services. Assuming without deciding that the clinician's testimony about what collaterals told her was improper, it was not prejudicial. The disputed testimony concerned the father's housing status, his participation as a cofacilitator of one particular program, and his attendance at therapy. The testimony was referenced in only one factual finding. The testimony did not impermissibly bolster the evidence of the father's unfitness where the father, consistent with the clinician's testimony, also testified that he lacked stable housing. Similarly, testimony about the father's participation in one program was not prejudicial. The clinician testified that the father led her to believe that he was trained to cofacilitate the program, while he testified that he intended to become a cofacilitator. Regardless, the judge thoroughly reviewed the father's engagement in multiple programs, crediting the father's testimony that he completed certain programs as required by the service plan but also finding that the father failed to complete others. The judge closely considered the father's engagement with services.

Finally, the father argues that the judge abused his discretion in allowing expert testimony about the child's bond with the preadoptive parent. Even assuming, without deciding, that the testimony was inadmissible, there was no prejudice. The father conceded at trial that the child had "a very, very close bond now with the [preadoptive] mother" and that the preadoptive mother knew things about the child that he does not. See Adoption of Serge, 52 Mass. App. Ct. at 9.

The judge did not err in concluding that clear and convincing evidence established the father's unfitness and that the child's best interests would be served by terminating the father's parental rights.

Decrees affirmed.

      The record indicates that the child only ever lived with the father "for a few months while he was living with Mother."

      We pause to note that the mother and father have shown evident affection toward the child, and none of the judge's findings negate this. Despite the moral overtones of the statutory term "unfit," the judge's decision was not a moral judgment or a determination that the mother and father do not love the child. The inquiry instead is whether the parents' deficiencies or limitations "place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child." Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).

      The mother's parental rights to the older children were previously terminated. The judge in this case made 196 factual findings and forty-one conclusions of law, and the mother challenges only eight findings of fact and two conclusions of law referencing the older children.

      The mother argues that the judge specifically considered this 51A report to conclude that she "relapsed at least twice since [the child] was removed from her custody." However, the judge does not indicate that this conclusion was based on the 51A report, and there was other evidence of the mother's drug use in the record.

      The father cites to portions of the trial transcript where the clinician testified to information from both the father and from collaterals. To the extent that the father contends that the clinician impermissibly testified about the father's own statements to the clinician, the father's statements are admissible against him. See Care & Protection of Sophie, 449 Mass. 100, 105-106 (2007).

      The judge was not required to place undue weight on the father's testimony that he moved into an apartment by the end of trial. See Care & Protection of Lillith, 61 Mass. App. Ct. at 136.

      To the extent that we do not address the mother's or the father's other contentions, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    COMMONWEALTH v. Roy IRBY.
    16-P-1171
    Appeals Court of Massachusetts.
    Entered: March 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was convicted by a Superior Court jury of several charges, including breaking and entering and larceny. The convictions stem from the defendant's arrest at 4:30 A.M. on a May morning, after he was witnessed reaching through the broken window of a car parked in a residential Boston neighborhood. Several other cars with broken windows were nearby, and there was also evidence of thefts from the cars. On appeal, the defendant claims that a police sergeant's testimony regarding certain statements the defendant made while being booked was improperly admitted, entitling the defendant to a new trial. The defendant also claims improprieties in the Commonwealth's opening and closing statements. We affirm.

1. We summarize the facts relevant to this appeal as the jury could have reasonably found them, reserving some particulars for later discussion.

The Commonwealth's principal percipient witness was one Howard Simpson. He testified that between 4:00 and 4:30 A.M. , on May 24, 2014, while being dropped off in a residential Boston neighborhood, he saw the defendant stand up from behind a car, while carrying various bags, and walk away. Simpson followed the defendant as the defendant went to a neighboring street, where Simpson saw the defendant use a flashlight to look into a truck, heard a "[p]op, pop," like glass shattering, and then saw the defendant reaching into the truck through the window.

The police were called, and arrived at the scene only minutes later. They found the defendant crouching beside a car. The truck, nearby, had a broken rear window, as did at least two other nearby cars. The police also recovered four plastic bags next to a wall near the truck.

The defendant was arrested and brought to the police station in a transport. When they arrived at the station, the police found various items on the floor of the transport wagon, including a debit card from one of the car break-in victims. No flashlight was found on the defendant.

At the station the defendant engaged in a colloquy with police Sergeant Thomas Brooks, who collected and photographed items seized from the defendant and from the plastic bags. The defendant initiated the colloquy by asking, "Am I going to get some of my stuff back?" Sergeant Brooks documented this in his notebook (which subsequently was recorded in the police report), and he testified to the colloquy at trial.

At trial, the defendant argued that Simpson had mistakenly identified him. The jury returned guilty verdicts on one count of breaking and entering at nighttime with the intent to commit a felony, in violation of G. L. c. 266, § 16 ; one count of the lesser-included offense of attempted breaking and entering in the nighttime, in violation of G. L. c. 274, § 6 ; and one count of larceny of property valued over $250, in violation of G. L. c. 266, § 30. This appeal followed.

2. Discussion. a. Sergeant Brooks's testimony. The defendant first argues that Sergeant Brooks was improperly allowed to testify regarding the colloquy he had with the defendant at the police station. Sergeant Brooks's testimony was admitted using the device of "present recollection refreshed." Brooks testified that he could not presently remember the exact statements the defendant made, but that he "had documented [the colloquy] that night in quotes." He asked to see the police report where those quotes were recorded, in order "to be accurate" as to the "exact quote."

After Brooks was provided and reviewed the police report, the Commonwealth began to ask him about the colloquy. Defense counsel asked that the report be taken from the witness stand, to which Brooks replied that he was "just trying to memorize it now." After some further back and forth, during which Brooks again stated that he was "trying to memorize it," the following exchange occurred:

COMMONWEALTH : "Do you recall the first thing that the defendant said to you?"
SERGEANT BROOKS : "Yes.... He said, 'Am I going to get some of my stuff back?' ... I generally told him I'm not certain what property is his and what property is the stolen property."
COMMONWEALTH : "And did-you said that he responded to that, correct?"
SERGEANT BROOKS : "Yes."
COMMONWEALTH : "And do you remember exactly what he said?"
SERGEANT BROOKS : "Yes. I would like to read the quote one last time to be certain that I'm not skipping a part of the conversation."
COURT : "Yes. You may do so."
COMMONWEALTH : "And do you remember now what the second thing that he said was?"
SERGEANT BROOKS : "He said, 'It doesn't matter. I'm going to get it all back when it's over.' "
COMMONWEALTH : "And did he say anything else after that?"
...
SERGEANT BROOKS : "I responded that, 'I'm going to log it all as victim's property until it's known.' "
COMMONWEALTH : "And do you recall what his response was?"
SERGEANT BROOKS : "Yes. He said, I'm going to beat the case anyway. The victims are not going to testify' " (emphasis supplied).

At a sidebar conference immediately following, the defendant moved to strike, which the trial judge denied. However, at the conclusion of Sergeant Brooks's testimony, the trial judge reconsidered, sua sponte, and instructed the jury to disregard the defendant's statement that "he was going to beat the case because the victims are not going to testify." Following a request by defense counsel, the judge repeated this instruction during the jury charge.

The defendant's attack on this testimony is twofold: first, that Sergeant Brooks was in essence allowed to read the police report to the jury-a misuse of present recollection refreshed-and second, that the colloquy itself was irrelevant and highly prejudicial because it "paint[ed] [the defendant] as an arrogant thief." We discern no error.

There are actually two evidentiary rules at issue here-present recollection refreshed, and "past recollection recorded." Present recollection refreshed is utilized when the witness's memory is exhausted; any means may then be used to refresh recollection, but if the witness is shown a document it may not be read, or shown, to the jury. See Commonwealth v. Woodbine, 461 Mass. 720, 731-732 (2012). Instead the witness testifies from his or her present recollection, after being refreshed. Id. at 730-734. Alternatively, the witness may be allowed to testify from, and to read from, a document that constitutes past recollection recorded, if the witness recorded events that he or she perceived, at or about the time the events occurred. See Commonwealth v. Evans, 439 Mass. 184, 189-190, cert. denied, 540 U.S. 923 (2003) ; Commonwealth v. Galvin, 27 Mass. App. Ct. 150, 151-152 (1989).

These two evidentiary doctrines are distinct in that they have different prerequisites and evidentiary outcomes, but they often arise together. Importantly, the Supreme Judicial Court has cautioned that in evaluating the admissibility of evidence under the two doctrines they should not be "regarded as inflexible dogmas. Courts ... should cease to treat them as anything but provisional and crude aids to truth. The trial court's discretion should be allowed to control." Fisher v. Swartz, 333 Mass. 265, 270 (1955), quoting from Wigmore on Evidence (3d ed.) § 755.

Here Sergeant Brooks's testimony was properly admitted. He testified that he remembered the conversation after reviewing the police report and he proceeded to testify without, it appears, directly reading from the report. Those facts ordinarily would satisfy present recollection refreshed, although here this interpretation is clouded by his reference to memorization. See Commonwealth v. Hoffer, 375 Mass. 369, 376 (1978). But even if Brooks was not testifying from present memory, he also testified that he recorded the colloquy, including the exact quotes, in his notebook. Thus, the prerequisites of past recollection recorded were met here, and accordingly it would also have been within the judge's discretion to allow the witness to read from the document. See Commonwealth v. Dougherty, 343 Mass. 299, 306 (1961) ; Commonwealth v. Pickles, 364 Mass. 395, 401-402 (1973), citing Dougherty, supra ("The judge was not required to distinguish between 'present recollection revived' and 'past recollection recorded' unless there was some difference in legal consequence. Whether or not the notes created a present recollection by the officer, the judge in his discretion could permit him to incorporate them in his testimony").

As to the defendant's argument that the colloquy was irrelevant, certain of the defendant's statements were probative of guilt, and thus admissible. The defense argued mistaken identity, and under those circumstances the defendant's reference to "my stuff" at the police station could be understood to contradict the defense's theory, by showing a connection to the crime. The defendant asserts that the "my stuff" statement could have been entirely innocuous-a reference to items in the possession of the police that were in fact his-but that is a contention for the jury, to be explored through cross-examination and argument. And, even if we considered the defendant's last statement in the colloquy to be more prejudicial than probative, the trial judge struck that statement, and the jury are presumed to follow the judge's instructions. See Commonwealth v. Degro, 432 Mass. 319, 328 (2000). Finally, we note that here the evidence of guilt was considerable; even if we found error with respect to these statements, any error was nonprejudicial. See, e.g., Commonwealth v. Cheremond, 461 Mass. 397, 411 (2012).

b. Commonwealth's opening and closing statements. The defendant also challenges certain remarks in the prosecutor's opening and closing statements. None of the challenged statements was objected to at trial, and thus we review only for a "substantial risk of a miscarriage of justice." Commonwealth v. Randolph, 438 Mass. 290, 296-298 (2002). Once again, we discern no reversible error.

With regard to the opening, the defendant argues that the prosecutor engaged in speculation as to the defendant's motive when she stated that the defendant "moved on to his next victim" because "there was nothing else there that he felt was important." We disagree. The prosecutor was stating the evidence she expected to prove, and the reasonable inferences therefrom. That is permissible. See Commonwealth v. Fazio, 375 Mass. 451, 454 (1978).

As to the closing, it was not improper for the prosecutor to argue, from the evidence, as to where the defendant might have secreted the flashlight or why it might not have been found. A prosecutor is entitled to argue forcefully for a conviction as long as the inferences are rooted in the evidence. See Commonwealth v. Roy, 464 Mass. 818, 833 (2013), citing Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). It is up to the jury to evaluate the merits of the argument.

Nor was the argument improper where the prosecutor stated that the defendant's argument was "not the truth." While perhaps inartful, that statement by the prosecutor, in context, was the conclusion to an appropriate response to defense counsel's argument that Simpson had mistakenly identified the defendant as the perpetrator. See Commonwealth v. Brewer, 472 Mass. 307, 315 (2015) ; Commonwealth v. Mitchell, 89 Mass. App. Ct. 13, 28-30, cert. denied, 137 S. Ct. 232 (2016).

Finally, there was no reversible error arising from the prosecutor's characterization of certain arguments by defense counsel. In particular, the prosecutor stated:

"Now despite all of that overwhelming evidence of the defendant's guilt, the defense attorney wants you to believe that there is no way that [the defendant] was responsible for these break-ins. No. Because clearly this is a case of mistaken identity or there is someone else that came in the scene and then left. That is crazy. That is a lot of static, and a lot of attempts to distract you from what you know is the truth" (emphasis supplied).

We agree with the defendant that these statements, and a later reference to defense counsel's arguments as "ridiculous," should not have been made. The prosecutor can quite properly respond to the arguments made by defense counsel, but these statements crossed the line by impugning defense counsel himself. Nevertheless, the error did not create a substantial risk of a miscarriage of justice. The trial judge provided a curative instruction to the jury to "disregard any characterization of another attorney's arguments as static or distractions or ridiculous." See Kozec, supra at 518. Particularly viewed in the context of the strength of the evidence of the defendant's guilt, any impropriety does not warrant reversal of the defendant's convictions.

Judgments affirmed.

      Brooks testified that he recorded the quotes in his notebook, and provided them for inclusion in the police report. It is not required that he prepare the police report himself. See Commonwealth v. Galvin, 27 Mass. App. Ct. at 152.