text:
    COMMONWEALTH v. Shaquan L. PINCKNEY.
    16-P-1642
    Appeals Court of Massachusetts.
    Entered: June 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Boston Municipal Court, the defendant, Shaquan L. Pinckney, was convicted of several firearm-related offenses. On appeal, he only challenges the denial of his motion to suppress the firearm. We affirm.

Background. We summarize the judge's findings of fact entered orally after the hearing on the motion to suppress. We have supplemented the findings with evidence that is "uncontroverted and undisputed" because the judge credited the testifying police officer, who was the sole witness at the suppression hearing. Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007).

At approximately 3:42 A.M. on June 6, 2015, Boston police Officer Jeffrey Connolly was working as a uniformed patrolman in a marked police vehicle in the Humboldt Avenue area of Dorchester, an area commonly referred to as the H Block, a high-crime area frequented by the H Block gang. A particular house in the H Block area had prompted five to six 911 calls for complaints of gang activity and loud noise.

After his shift ended, Connolly was driving on Humboldt Avenue when a motorized scooter pulled out in front of him. He observed two males on the scooter, neither of whom was wearing a helmet. The area was well-lit, and he recognized the driver, Claudio Lopes, with whom he had had several encounters and whom he knew was part of the Woodward Avenue gang and had a previous firearm charge.

Connolly knew that legally the men should have been wearing helmets while riding the scooter. However, he did not activate his cruiser's lights for a traffic stop because he did not want the scooter to crash. Instead, the cruiser and scooter drove down Humboldt Avenue for about one-half mile before stopping at a red light at the intersection of Martin Luther King Boulevard and Humboldt Avenue. The scooter pulled to the right side of Humboldt Avenue in order to turn right onto Martin Luther King Boulevard. Connolly had his window down, and his cruiser was stopped about five feet away to the left of the scooter. Connolly and Lopes began conversing. Connolly asked Lopes why he was driving without a helmet and why he was driving at 4:00 A.M. Lopes appeared "jubilant," and said that he was coming back from celebrating at his birthday party. He told Connolly that he was "fucked up." Connolly believed that Lopes may have been under the influence at that time. The exchange between the two was brief, with four to five questions and answers back and forth.

At the time of his conversation with Lopes, Connolly did not know the identity of the scooter's passenger, who was the defendant. He noticed that the defendant was not engaging in conversation while he questioned Lopes, and he observed that the defendant was leaning forward with his hands pressed tightly against his own lower-abdomen area. He further observed that the defendant was wearing a sweatshirt with the Miami Heat logo, which he knew was the trademark of a rival gang of the H Block.

Connolly was trained in the characteristics of an armed gunman to recognize the defendant's body position as a threat to his safety. This, taken together with the sweatshirt and Connolly's unfamiliarity with the defendant and familiarity with Lopes and his criminal history, made Connolly increasingly concerned. Given these concerns, he proceeded to ask the defendant where he was from; the defendant gave his address. Connolly knew that specific address to be involved in firearms incidents and shootings in 2013 to 2014.

Connolly testified that the defendant was "stoic" while being questioned, staring wide-eyed at him with a "frozen body." Connolly asked the defendant to move his hands away from his waist, stating something to the effect of "I know Mr. Lopes, but I don't know you. I'd feel more comfortable if you put your hands away from your waist." The defendant complied, raising his hands and placing them on Lopes's shoulders.

When the defendant raised his arms, Connolly saw what he thought was the black butt end of a firearm in the defendant's waistband. Connolly was familiar with the license-to-carry laws at the time of the incident, and he was thus aware that a person must be at least twenty-one years old to obtain a license to carry a firearm. He also knew that Lopes was only about nineteen years old, and believed that the defendant appeared to be around the same age.

Not wanting to reveal that he had seen the firearm, Connolly asked Lopes to pull the scooter over to discuss the lack of helmets. At that point, Lopes's "eyes opened," and he turned right and drove down Martin Luther King Boulevard. Connolly drove after the scooter and activated his cruiser lights in an attempt to pull the scooter over. Lopes continued driving down Martin Luther King Boulevard at around twenty miles per hour.

Connolly notified the police department that a known person on a scooter failed to stop and there was a firearm involved. The scooter eventually crashed, and both Lopes and the defendant were apprehended. As no firearm was recovered from them, police returned to the area where Connolly had not had a direct view of the defendant and Lopes. There the police recovered a firearm.

Discussion. In reviewing the denial of a motion to suppress, we accept the " 'judge's subsidiary findings of fact absent clear error'; however, we review independently his ultimate findings and conclusions of law." See Commonwealth v. Ramirez, 92 Mass. App. Ct. 742, 743 (2018), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). We "leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing." Commonwealth v. Contos, 435 Mass. 19, 32 (2001), quoting from Commonwealth v. Eckert, 431 Mass. 591, 592-593 (2000).

The defendant argues that his motion to suppress should have been allowed because the officer's act of turning his attention to the defendant, asking for his address, and "commanding" him to lift his hands constituted a seizure, and at the time of that seizure the officer lacked reasonable suspicion that the defendant was unlawfully carrying a firearm. We disagree.

We employ an objective standard to determine the moment a person has been seized: "A person has been seized by a police officer 'if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " Commonwealth v. Lopez, 451 Mass. 608, 611 (2008), quoting from Commonwealth v. Borges, 395 Mass. 788, 791 (1985). "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Commonwealth v. Franklin, 456 Mass. 818, 820-821 (2010), quoting from Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).

Contrary to the defendant's contention, Connolly's questions and "command" that the defendant lift his hands did not amount to a show of authority converting the encounter into an unconstitutional seizure. There was no seizure when the officer asked the defendant for his name and address. See Commonwealth v. Lopez, supra ("[N]ot every encounter between a law enforcement official and a member of the public constitutes [a seizure]"). Mere questions posed by an officer to an individual do not constitute a seizure. See Commonwealth v. Stoute, 422 Mass. 782, 789 (1996) ; Commonwealth v. Barros, 435 Mass. 171, 173-174 (2001) ; Commonwealth v. Ramirez, 92 Mass. App. Ct. at 744.

Furthermore, Connolly's request that the defendant move his hands, without more, was not sufficiently coercive or intimidating to convert this encounter into a seizure subject to the constitutional requirement of a showing of objective justification. See Commonwealth v. Martin, 467 Mass. 291, 303 (2014). Officer Connolly merely told the defendant "I'd feel more comfortable if you had your hands away from your waist." This language reflects a request, not a command. See Commonwealth v. Nestor N., 67 Mass. App. Ct. 225, 228-229 (2006).

We agree with the motion judge that the defendant was seized only when the officer turned on his cruiser lights and asked Lopes to pull over to discuss the traffic violation (operating a motorized scooter without a helmet). See Commonwealth v. Smigliano, 427 Mass. 490, 492 (1998) ; Commonwealth v. Quintos Q., 457 Mass. 107, 110 (2010). Indeed, this was the first time that the officer's conduct amounted to a show of authority sufficient to constitute a seizure for constitutional purposes.

We now turn to whether Connolly's seizure of the defendant was warranted. "Where a police officer has a reasonable, articulable suspicion that a person has committed, is committing, or is about to commit a crime, the officer may stop that person to conduct a threshold inquiry." Commonwealth v. Bostock, 450 Mass. 616, 619 (2008). This suspicion must be based on articulable facts and experience; that is more than a "mere hunch." Ibid.

By the time that Connolly turned on his cruiser lights and asked Lopes to pull over, he had seen the black butt end of a firearm in the defendant's waistband. Moreover, the defendant's sudden flight, body positioning, carrying of the firearm in his waistband rather than in a holster, and youthful appearance (rendering any possibility of legal gun ownership highly unlikely) were sufficient to justify a reasonable suspicion that he was illegally carrying a firearm. See Commonwealth v. DePeiza, 449 Mass. 367, 371-374 (2007).

Judgments affirmed.

      There is no contention that the findings are erroneous.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Abram AVILES.
    17-P-155
    Appeals Court of Massachusetts.
    Entered: June 11, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury found the defendant, Abram Aviles, guilty of two counts of statutory rape of a child, G.L. c. 265, § 23A ; one count of indecent assault and battery on a child under fourteen, G.L. c. 265, § 13B ; and one count of assault with intent to rape a child, G.L. c. 265, § 24B. On appeal, the defendant argues that it was an abuse of discretion for the trial judge to admit testimony of a first complaint witness where there was not a significant delay between the time of the assault and the time of the police report. We affirm.

Discussion. 1. Standard of review. When evaluating whether to admit first complaint evidence, the trial judge is in the best position to determine admissibility, and we review determinations of admissibility under an abuse of discretion standard. See Commonwealth v. Aviles, 461 Mass. 60, 73 (2011).

2. First complaint witness. In Commonwealth v. King, 445 Mass. 217 (2005), the Supreme Judicial Court modified the doctrine of "fresh complaint" and renamed the body of doctrine as "first complaint" evidence. One of the primary modifications to the doctrine under King was to remove a "freshness" requirement. Id. at 242 ("[T]he timing of a complaint is simply one factor the jury may consider in weighing the complainant's testimony ... 'freshness' has no bearing on [the first complaint testimony's] admission").

The first complaint doctrine allows the person whom the victim first told of the assault to testify to the details of the victim's initial complaint and the surrounding circumstances, including the witness's "observations of the complainant during the complaint; the events or conversations that culminated in the complaint; the timing of the complaint; and other relevant conditions that might help a jury assess the veracity of the complainant's allegations or assess the specific defense theories as to why the complainant is making a false allegation." Id. at 246. This doctrine addresses the unique nature of sexual assault cases and helps counter a variety of damaging stereotypes about sexual assault victims which jurors may continue to incorrectly believe. Id. at 238-241. For instance, "[j]uror biases may be particularly strong in child rape cases, as some may attribute allegations of sexual assault to the child's imagination or improper adult influence" or because jurors "may unfairly perceive child complainants as incredible." Id. at 239-240. With an aim towards providing the jury with the maximum amount of information, first complaint testimony is considered presumptively relevant. Id. at 246-247. However, "[f]irst complaint testimony may be admitted for a limited purpose only, to assist the jury in determining whether to credit the complainant's testimony about the alleged assault. The testimony may not be used to prove the truth of the allegations." Id. at 219.

First complaint testimony "is the most pertinent to the jury's understanding of what motivated the victim to come forward and is the most useful in assessing the victim's credibility (including assessing any specific defense theories attacking that credibility )" (emphasis added). Id. at 243. This testimony "help[s] a jury assess the veracity of the complainant's allegations or assess the specific defense theories as to why the complainant is making a false allegation" (emphasis added). Id. at 246. "[A] defendant will be free to cross-examine both the first complaint witness and the complainant about the details of the complaint, and draw to the jury's attention any discrepancies in the complainant's story that come to light only as a result of this additional information." Id. at 245.

At trial, the defendant challenged the victim's credibility and argued that no sexual assault occurred. On appeal, the defendant argues that the first complaint testimony, given by the victim's cousin, should have been excluded from evidence as irrelevant because the victim's complaint to police was too fresh. He argues that there was no need for the first complaint testimony because the victim immediately reported the sexual assault. This argument fails for two reasons. First, it misunderstands the doctrine of first complaint testimony. As noted above, the issue of timing is merely one factor which the jury may consider in weighing the credibility of a complainant's testimony, and does not speak to the initial admissibility of first complaint evidence. The Supreme Judicial Court recently reaffirmed the principle that questions of credibility "may be at issue even absent any delay in disclosure" and concluded that there was no abuse of discretion where a first complaint witness "provided the jury with a contemporaneous description of the victim's reaction to the defendant's actions." Commonwealth v. Kennedy, 478 Mass. 804, 814 (2018). The defendant's attempt to distinguish this recent case on factual grounds is unavailing. Second, the case here did involve a question of whether the victim immediately reported the sexual assault. The jury could have found that the victim did not immediately tell her mother or her sister, who were present in the apartment. Instead, she waited for a telephone to charge and then called her cousin.

The judge permissibly allowed the cousin's testimony and instructed the jury on the limited purpose of that testimony. Her cousin testified that she was contacted by the victim through a text message asking for help, that she then received a telephone call from the victim and that the victim described the assault, and that she picked up the victim and drove her to a hospital. The defense challenged the victim's veracity and credibility, drew attention through cross-examination to discrepancies between the victim's testimony and her cousin's testimony, and, in both the opening statement and closing argument, described the case as one "about a troubled" teenager and her "false accusation." Therefore, the judge did not abuse his discretion in allowing the first complaint testimony and permitting the jury to consider it when determining the victim's credibility.

Judgments affirmed.

      The trial judge entered a required finding of not guilty as to an additional count of statutory rape of a child.

      The named party in this citation is not the defendant.

      At the time of the assault, the victim was thirteen years old and lived with her mother, a younger sister, and the defendant. The defendant was engaged to the victim's mother. The victim testified that she wanted to live with her biological father, and defense counsel argued to the jury that the defendant did not assault the victim but that the victim reported the assault because the defendant was not her biological father.


text:
    COMMONWEALTH v. Agapito RIVERA.
    16-P-1421
    Appeals Court of Massachusetts.
    Entered: June 11, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury-waived trial, the defendant, Agapito Rivera, who had been charged with possession of a class B controlled substance with intent to distribute, was convicted of the lesser included offense of possession of a class B controlled substance (cocaine). He appeals from that conviction and the denial of his motion for new trial.

Background. Before trial, the defendant moved to suppress certain evidence. The motion was denied. During trial, on the basis of certain trial testimony that the defendant argued was in conflict with the evidence presented at the suppression hearing, the defendant moved to renew the suppression motion, pursuant to Mass.R.Crim.P. 13(a)(5), as appearing in 442 Mass. 1516 (2004). The trial judge referred the motion to renew to the motion judge; the motion was denied. After trial, the defendant moved for a new trial, which motion was denied. On appeal the defendant argues that his motion to suppress and his motion to renew should have been allowed, that certain errors occurred at trial, and that his motion for new trial should have been granted. We affirm.

Facts from hearing on motion to suppress. We summarize the facts found by the motion judge after the evidentiary hearing on the defendant's motion to suppress and supplement these findings with uncontested evidence from the hearing.

On July 18, 2011, at approximately 7:00 P.M. , Officer Richard Fucci of the Lynn police department was conducting surveillance in the area of Western Avenue and Ida Street, known as a high crime area where many drug offenses and crimes of violence had taken place. Fucci testified that he had made numerous drug arrests in this area and that the Prime Gas Station is a common place for drug transactions.

Fucci observed a red Dodge motor vehicle back into a parking space at the gas station. The driver of the Dodge, later identified as the defendant, did not exit the vehicle; instead, he appeared to be looking around while in the vehicle. The defendant then drove out of the parking lot, traveled about 100 feet, and parked in front of 19 Camden Street where he continued to look around.

Fucci called for backup and was joined on the scene by Officer Michael Kelter. The officers observed the defendant make a brief telephone call; then they saw a green Ford vehicle travel down Camden Street and stop across from the defendant's Dodge. The defendant then exited the Dodge and got into the Ford through the front passenger door.

After running the Ford's license plate, Fucci drove up alongside the vehicle with the nose of his unmarked cruiser facing toward the nose of the Ford; Kelter pulled in behind the Ford. The officers did not activate their vehicles' lights or sirens. The Ford was not blocked in, and could have proceeded forward. Fucci then approached the driver while Kelter approached the defendant, who was still in the front passenger seat. As Fucci identified himself as "Lynn Police," he observed a large quantity of cash and an empty plastic bag on the center console of the vehicle. Fucci testified that Kelter told him he had seen the defendant "bend down under the passenger seat."

At that point, Kelter ordered the defendant out of the vehicle. The defendant complied, telling Kelter that he did not have anything on him and that the officer could check him. Kelter pat frisked the defendant, but found nothing of note. Kelter looked under the front passenger seat of the vehicle and found a large quantity of what appeared to be cocaine. Both the defendant and the driver of the Ford were taken into custody.

Discussion. 1. Motion to suppress. When reviewing the disposition of a motion to suppress, "[w]e accept the judge's subsidiary findings of fact absent clear error, but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 344 (2010) (quotation omitted).

a. The stop. "Before considering whether the officers' actions in stopping the defendant were constitutionally permissible, we first identify the moment when the seizure occurred." Commonwealth v. Gomes, 453 Mass. 506, 510 (2009). "A person has been seized by a police officer 'if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " Commonwealth v. Lopez, 451 Mass. 608, 611 (2008), quoting from Commonwealth v. Borges, 395 Mass. 788, 791 (1985).

Contrary to the defendant's contention, he was not seized in the constitutional sense when the officers approached the Ford. The officers stood outside of the already-parked Ford; their respective vehicles did not block the Ford in. See Commonwealth v. DePeiza, 449 Mass. 367, 370-371 (2007) (no seizure where police stepped out of unmarked vehicle, approached defendant, engaged in short conversation, and accepted identification when voluntarily offered); Commonwealth v. Cabrera, 76 Mass. App. Ct. at 343-345 (no stop where officers, suspecting drug transaction was afoot, drove down alley, parked unmarked vehicle without blocking defendant's vehicle, conspicuously displayed badges, and approached defendant). Indeed, "[a]pproaching in an unmarked cruiser, leaving the cruiser, and requesting to speak with a citizen, without more, does not constitute a seizure." Commonwealth v. Rock, 429 Mass. 609, 612 (1999).

Furthermore, prior to the exit order, the officers neither ordered the defendant to stop nor displayed any indicia of authority to signal that he was not free to leave. Fucci's act of identifying himself as a police officer was not, as the defendant claims, a show of authority that turned the encounter into a seizure. See Commonwealth v. Damelio, 83 Mass. App. Ct. 32, 36 (2012). Given the circumstances, "a reasonable person in the defendant's situation would have felt free to leave during that initial part of the encounter"; the defendant was not seized in the constitutional sense until the officer asked him to exit the vehicle. Commonwealth v. DePeiza, 449 Mass. at 370.

We next consider whether the seizure of the defendant at the time of the exit order was based on "specific, articulable facts and reasonable inferences therefrom," that the defendant "was committing, or was about to commit a crime." Commonwealth v. Alvarado, 423 Mass. 266, 268 (1996). Officers Fucci and Kelter had observed two motor vehicles meet at a location known for drug transactions. Fucci noted that the defendant remained in his vehicle and appeared to be looking around. Adding to the officers' suspicion that a drug deal was afoot was the large quantity of cash and empty plastic bag on the center console of the vehicle, coupled with the defendant's downward movement when he appeared to be reaching under his seat.

From the officers' perspective, it was reasonable to suspect that an illegal drug transaction was underway. See Commonwealth v. Santaliz, 413 Mass. 238, 242 (1992) (in eyes of experienced narcotics investigator, whole "silent movie" disclosed "sequence of activity consistent with a drug sale"); Commonwealth v. Cabrera, 76 Mass. App. Ct. at 346 ("Viewed through the eyes of experienced police officers and as a whole, even seemingly innocent activities may take on a sinister cast and give rise to reasonable suspicion").

b. The exit order. "While a mere hunch is not enough, ... it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns, and, if the basis is there, a court will uphold the order." Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999) (citation omitted). The standard is an objective one. See Commonwealth v. Torres, 433 Mass. 669, 673 (2001). The officers need not point to specific facts that an individual had a weapon. See Commonwealth v. Gonsalves, supra at 665.

Considering the totality of the evidence, the officers had a sufficient reasonable concern of danger to justify the exit order. It was dark out at the time of the encounter, and the officers were aware that they were in a high crime area. Critically, the defendant's movements of bending over out-of-view and seemingly reaching underneath his seat suggested that he was moving some unknown object. Such movements are sufficient to raise rational safety concerns. See Commonwealth v. Stampley, 437 Mass. 323, 327 (2002), and cases cited.

c. The patfrisk and search. The defendant next argues that the patfrisk and search of the vehicle were unlawful. The analysis whether a patfrisk is proper is the same as that used to determine whether the exit order is valid, that is, "whether a reasonably prudent man in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger." Commonwealth v. Torres, 433 Mass. at 675-676 (quotation omitted). A protective search may extend to the interior of an automobile as long as it is limited to what is minimally necessary to dispel safety concerns. See Commonwealth v. Silva, 366 Mass. 402, 408 (1974) ; Commonwealth v. Almeida, 373 Mass. 266, 272 (1977). Here, the same factors justifying the exit order and patfrisk of the defendant also supported the search of the automobile, including underneath his seat where the cocaine was found. The motion judge properly denied the motion to suppress.

2. Motion to renew motion to suppress. The defendant also argues that the motion judge erred in denying his motion to renew his suppression motion, on the basis that Kelter's trial testimony was materially different from Fucci's testimony at the suppression hearing about Kelter's observations. A denial of a motion to renew is reviewed for abuse of discretion. See Commonwealth v. Lahey, 80 Mass. App. Ct. 606, 615 (2011). We conclude that the judge did not abuse his discretion in denying the motion.

At trial, Kelter testified that he "observed [the defendant] bend down, his head dipped down as Officer Fucci was approaching." At the motion hearing, Fucci had testified that "Kelter informed me that he observed [the defendant] bend down under the passenger seat." The defendant argued that the discrepancy between Fucci's testimony at the motion hearing and Kelter's testimony at trial was significant. Under either account, the movement created the reasonable inference that the defendant had reached under the seat. See Commonwealth v. Mercado, 422 Mass. 367, 369 (1996) ("To qualify as reasonable, the officer's suspicion must be based on specific, articulable facts and reasonable inferences drawn therefrom" [quotation omitted] ). Although the motion judge expressed skepticism that the motion to renew should have been referred back to him, he also observed that the additional evidence didn't "sound to [him] like it's a whole lot different from what [he] found." Accordingly, no basis to disturb the ruling on the original motion existed, and the motion judge did not abuse his discretion in denying the motion to renew. See Commonwealth v. Lahey, 80 Mass. App. Ct. at 615.

3. Confirmatory chemist's testimony. The defendant next claims that the trial judge erred in allowing the admission of the testimony of a confirmatory chemist, Della Saunders, who based her testimony partly on the primary chemist's notes. The defendant argues that the admission of the testimony constituted improper expert opinion and inadmissible hearsay.

Here, Saunders provided her independent opinion based on her review of the nontestifying chemist's test results; she did not merely reiterate her colleague's opinion. See Commonwealth v. Sanchez, 476 Mass. 725, 733 (2017). Moreover, "[e]xpert opinion testimony ... does not violate the right of confrontation because the witness is subject to cross-examination concerning his or her expert opinion and the reliability of the underlying facts and data." Commonwealth v. Greineder, 464 Mass. 580, 584, cert. denied, 571 U.S. 865 (2013). Such was the case here, and we therefore see no error in the judge's decision to admit Saunders's opinion testimony. See Commonwealth v. Santana, 477 Mass. 610, 623 (2017) (admission of expert testimony not in error where substitute medical examiner testified to her independent opinion and was available for cross-examination on foundation of that opinion).

In addition, the defendant's claim that Saunders attempted to impermissibly vouch for hearsay test results by identifying the primary chemist's initials similarly misses its mark. Saunders testified that she recognized her colleague's handwriting based on working with him and having seen his handwriting for seven years. This was permissible. See Commonwealth v. O'Connell, 438 Mass. 658, 667 (2003), quoting from Commonwealth v. Ryan, 355 Mass. 768, 770-771 (1969) ("A witness who is familiar with a person's handwriting may give an opinion as to whether the specimen in question was written by that person").

4. Sufficiency of the evidence. The defendant argues that the trial judge erred in denying his motion for a required finding of not guilty because the evidence was insufficient to prove constructive possession of the cocaine.

The Commonwealth's evidence was more than adequate, under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), to justify the trial judge's denial of the defendant's motion for a required finding of not guilty. Here the Commonwealth was required to prove that the defendant had constructive possession of the drugs. In order to do so, there must be evidence that the defendant "[had] (a) knowledge of the contraband; (b) ability to control it; and (c) intention to exercise control over it." Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 444 (2013). The requisite knowledge can be established through circumstantial evidence. See Commonwealth v. Garcia, 409 Mass. 675, 686 (1991). While presence in a vehicle is not sufficient to prove constructive possession, presence with "[a]dditional incriminating evidence" can be sufficient. Commonwealth v. Crapps, supra.

Viewing the evidence in the light most favorable to the Commonwealth and drawing all inferences in favor of the Commonwealth, there was sufficient evidence to find that the defendant constructively possessed the cocaine found under his seat. See ibid. (sufficient evidence of possession where "police had observed suspected drug dealing behavior").

The defendant's downward motion under his seat, where the drugs were ultimately located, was strong evidence of possession. This created a reasonable inference that the defendant, in an effort to conceal the cocaine, placed it under his seat once he realized the officers were approaching. See Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 936 (1998) (sufficient evidence of possession where contraband was found under driver's seat and passenger made motion indicating concealment as officers approached). See also Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 593 (2007) (sufficient evidence of possession where contraband was found under front passenger seat where defendant had been shoving feet).

Supplementing this evidence were the large quantity of cash and empty plastic bag on the center console. See Commonwealth v. Gonzalez, 452 Mass. 142, 148 (2008) (unusually large amounts of cash found in defendants' possession supported finding of constructive possession of drugs); Crapps, 84 Mass. App. Ct. at 445 (same).

Judgment affirmed.

Order denying motion for new trial affirmed.

      Kelter did not testify at the suppression hearing.

      At the point in which the officers approached the defendant, there may have been reasonable suspicion to support a threshold inquiry, as the motion judge found; however, we need not reach that issue as there was no "stop" in the constitutional sense (and thereby no prospective constitutional violation) until the exit order. "We may affirm the denial of a motion to suppress on any ground supported by the record ...." Commonwealth v. Washington, 449 Mass. 476, 483 (2007).

      The defendant also argues that the trial judge erred in referring the motion to the original motion judge, rather than hearing the motion himself. While he takes issue with the trial judge's reasoning for declining to hear the motion, he cites no authority for the proposition that the trial judge was required to hear the motion himself. It was a matter within the judge's discretion. See Kuwaiti Danish Computer Co. v. Digital Equipment Corp, 438 Mass. 459, 465-466 (2003) ("Although a judge should not lightly undo the work of another judge, the power to reconsider an issue remains in the court until final judgment" [citation omitted] ); Mass.R.Crim.P. 13(a)(5) (judge may permit pretrial motion which has been heard and denied to be renewed). As the trial judge noted, he had heard Kelter's testimony in a trial posture. Since the motion judge had heard Fucci's testimony in a motion to suppress posture, the trial judge reasonably concluded that the motion judge was in the best position to determine whether Kelter's testimony would have made any difference. There was no abuse of discretion.

      The primary chemist, Daniel Renczkowski, was unavailable for trial.

      The fact that the drugs were tested at the Hinton Laboratory is not significant, because the individual convicted of misconduct at that laboratory had no role in testing these drugs. See Commonwealth v. Resende, 475 Mass. 1, 13-14 (2016).

      At trial Officer Fucci, Officer Kelter, and the chemist, Della Saunders, testified for the Commonwealth.

      The defendant's motion for new trial raises arguments that have already been discussed; therefore we need not address them further. Additionally, the defendant complains that the judge neglected to issue findings on the motion for new trial, although he had stated that he would. The defendant fails to demonstrate how that omission negatively impacted him, and we do not consider it.


text:
    ADOPTION OF TATUM (and a companion case ).
    17-P-1621
    Appeals Court of Massachusetts.
    Entered: June 18, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Adoption of Brian. The children's names are pseudonyms.

   After a trial, a judge of the Juvenile Court found the father unfit to parent the children, terminated the father's parental rights, and approved the adoption plans of the Department of Children and Families (DCF). The father appeals. We affirm.

Background. We summarize the relevant facts and procedural history from the judge's findings, reserving some details for discussion of the issues. Tatum was born in 2011, and Brian was born in 2012. DCF filed a care and protection petition in October, 2015, after investigating a report filed pursuant to G. L. c. 119, § 51A, alleging domestic violence between the father and mother in the children's presence. Both children were removed from the parents' custody and placed in the temporary custody of DCF. DCF reunified the children with the parents in August, 2016. In October, 2016, DCF again removed the children due to domestic violence. After a trial in February, 2017, the judge concluded that both parents were unfit and issed decrees terminating both parents' parental rights. The judge declined to order posttermination and postadoption visitation.

Discussion. 1. Adverse inference. The father did not appear at the trial. Counsel represented that the father telephoned him the morning of trial and was having trouble with his transportation to court. The father argues that the judge abused her discretion by drawing an adverse inference against the father as a result of his absence from the trial. A negative inference is permissible when a parent who had notice of a proceeding to determine his parental rights fails to attend so long as the inference is "fair and reasonable based on all the circumstances and evidence." Adoption of Talik, 92 Mass. App. Ct. 367, 372 (2017) (quotation omitted). Such an inference may suggest an abandonment of parental rights or that the parent cannot meet the children's best interests. Ibid.

Here, the judge considered the father's explanation of his failure to attend, but was not obligated to credit it. At the time of trial, the father had not visited the children for over two months, and met with his social worker only once after the children were removed for the second time. The judge could permissibly conclude from the father's course of conduct that his repeated absences were due not to insufficient means of transportation but rather to neglect. The judge did not abuse her discretion by drawing a negative inference against the father for his failure to appear and testify.

2. Termination of parental rights. The father further argues that the judge abused her discretion in terminating the father's parental rights by relying on erroneous findings that the father had untreated anger management issues and refused to address his substance use problems while failing to acknowledge the father's positive facts. A judge must find, by clear and convincing evidence, that the parent is currently unfit to care for the child and that termination is in the child's best interests. See Adoption of Nancy, 443 Mass. 512, 514-515 (2005). In reviewing a judge's decision to terminate parental rights, we give the judge's decision substantial deference "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). There is an abuse of discretion where "the judge made a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation omitted).

The judge properly considered the required factors set forth in G. L. c. 210, § 3(c ), and concluded that factors ii, iii, iv, v, vi, viii, x, and xii were applicable to her determination that the father was unfit. The judge found that the father failed to demonstrate consistent effort to follow the tasks on his DCF service plan. The judge further found that while the father did engage in psychiatric treatment and individual therapy, he failed to engage sufficiently in services designed to correct the circumstances that led to the children's removal, such as domestic violence services and substance use treatment. The judge also found a history of the father's failure to visit the children after their removal. Based on the record, we cannot conclude that the judge's findings are clearly erroneous. See Adoption of Ilona, supra. Although the father 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).

3. Posttermination and postadoption visitation. The father argues that the judge abused her discretion in failing to order posttermination and postadoption visitation between the father and the children. Once a parent is established as unfit, the decision whether to order posttermination and postadoption visits is left to the judge's discretion. Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). The decision is based on the best interests of the children and on the "emotional bonding and other circumstances of the actual personal relationship of the child[ren] and the biological parent." Adoption of Vito, 431 Mass. 550, 562 (2000).

The record supports the judge's conclusion that no such bond existed between the father and the children. The father had not visited with the children for over two months before trial. Further, the children were affected by the pattern of domestic violence between the father and mother and were made sad and scared by the violence. The judge did not abuse her discretion in declining to order posttermination and postadoption visitation.

Decrees affirmed.

      The mother's rights also were terminated. She did not appeal.


text:
    COMMONWEALTH v. Bandali F. DAHDAH.
    17-P-577
    Appeals Court of Massachusetts.
    Entered: June 18, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury-waived trial in the District Court, the defendant was convicted of making a false report of a crime to a police officer. Almost two years after his conviction was affirmed on appeal, the defendant filed a motion for a new trial claiming that newly discovered evidence in the form of a percipient witness cast doubt on his conviction. The trial judge denied the motion after conducting an evidentiary hearing. The defendant now appeals from the denial of his motion for new trial. We affirm.

Background. The defendant's conviction was premised upon his report to a police officer that the manager of a Burger King restaurant in Burlington had grabbed his "right arm, twisting it behind his back attempting to get him out of the store." At trial, the manager testified that the defendant had warned her that, if she called the police, he would do the same and accuse her of assaulting him. She denied touching the defendant. The reporting police officer also testified that he spoke to the five or so other employees who were present and they confirmed the manager's account. The defendant did not testify at trial, but his report of the alleged assault to the police was put in evidence through the police officer and the recordings of his two 911 telephone calls.

The evidentiary hearing on the motion for new trial was held about six years after the incident. The newly discovered witness had been an employee working at Burger King at the time of the incident. As found by the judge, the witness testified that, on the night in question, she heard a verbal dispute between her manager and the defendant, with whom she was familiar. The witness then saw her manager step out from behind the counter and tell the defendant to leave. When he did not comply, the witness saw the manager "grab[ ] his arm" and try to "force[ ] him to leave" by pulling his arm and then throwing out his food. The defendant stood still. The witness testified that she could not see whether the manager twisted the defendant's arm or whether she twisted it behind his back. The witness continued to work at Burger King for one to two years after this incident and has continually lived in Burlington. She also testified that no one spoke to her about her observations until the attorney representing the defendant on his motion for new trial contacted her recently.

The motion judge again listened to the recordings of the 911 telephone calls, one made by the manager and two made by the defendant, including a call in which the defendant told the dispatcher that there were two witnesses to the incident. The judge concluded that the defendant had failed to show that the witness's testimony was not reasonably discoverable.

Discussion. We review the denial of a new trial motion for abuse of discretion or significant errors of law. Commonwealth v. Elangwe, 85 Mass. App. Ct. 189, 194 (2014). Where the trial judge and the motion judge are the same, as is the case here, "we give special deference to [the judge's] assessment of the trial record." Ibid. (quotation omitted). "A judge's subsidiary findings of fact will not be disturbed on appeal unless they are shown to be the result of a clear abuse of discretion or ... were clearly erroneous." Commonwealth v. Grant, 78 Mass. App. Ct. 450, 454 (2010) (quotation omitted).

A defendant seeking a new trial on the ground of newly discovered evidence must establish that the evidence was in fact newly discovered in the sense that it was unknown to the defendant or his attorney at the time of trial and that it was not reasonably discoverable. Commonwealth v. Grace, 397 Mass. 303, 305-306 (1986) ; Commonwealth v. Epps, 474 Mass. 743, 758 (2016) (defense counsel has professional obligation to investigate all potentially substantial defenses).

Here, the defendant had alerted the police to the presence of two other witnesses in a 911 telephone call; because there were no other customers in the restaurant besides the defendant, those witnesses were likely employees. That the witness was one of those employees was readily discoverable given that she was named in the police report, continued to be employed at the same restaurant for one to two years after the incident, and continued to live in the same town. In these circumstances, it is difficult to conclude that the witness was not reasonably discoverable.

The defendant argues in the alternative that, if the witness's testimony was not newly discovered, then trial counsel's failure to discover the testimony by interviewing the witness constituted ineffective assistance of counsel. Although the defendant mentioned this point during the hearing on his motion for new trial, he did not raise it in his motion as a ground for obtaining a new trial. Upon hearing the ineffective assistance claim for the first time during final argument at the hearing, the Commonwealth indicated that it was only prepared to address the newly discovered evidence claim. The judge also appears to have limited her decision to the newly discovered evidence claim. Under the circumstances, we decline to address an issue that was neither properly raised below nor passed upon by the motion judge. See Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 537 n.8 (2012). See also Commonwealth v. Zinser, 446 Mass. 807, 809 n.2 (2006) ("[O]ccasions when a court can resolve an ineffective assistance claim on direct appeal are exceptional, and our case law strongly disfavors raising ineffective assistance claims on direct appeal").

Because we conclude that the judge acted well within her discretion in determining that the testimony proffered by the defendant did not constitute newly discovered evidence, we affirm.

Order denying motion for new trial affirmed.

      Commonwealth v. Dahdah, 84 Mass. App. Ct. 1134 (2014).

      In addition to concluding that the witness testimony did not constitute newly discovered evidence, the judge stated that, even if the testimony were to be considered newly discovered, the defendant could not prevail because the testimony did not create a substantial risk that a fact finder would reach a different conclusion. See Commonwealth v. Figueroa, 422 Mass. 72, 79 (1996) ; Commonwealth v. Fortuna, 80 Mass. App. Ct. 45, 53-54 (2011). Because we affirm on the ground that the witness's testimony was not newly discovered, we do not reach the issue of whether her testimony cast "real doubt on the justice of the conviction." Commonwealth v. Grace, 397 Mass. 303, 305 (1986).


text:
    COMMONWEALTH v. Michel THOMAS, Jr.
    17-P-85
    Appeals Court of Massachusetts.
    Entered: June 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in Superior Court, the defendant was convicted of kidnapping, intimidation of a witness, and three counts of assault and battery, charges that relate to events that occurred between May 3, 2011, and May 4, 2011. The defendant was acquitted of fourteen additional counts, some of which were alleged to have occurred on different dates. The defendant moved for a new trial and after conducting an evidentiary hearing, the trial judge denied the motion. The appeal from the motion was consolidated with the defendant's direct appeal. On appeal the defendant argues that (1) the judge abused her discretion in denying the motion for new trial based on ineffective assistance of counsel, (2) the judge improperly denied the defendant's request for a missing witness instruction, and (3) the prosecutor improperly cross-examined the defendant.

Background. We briefly summarize the facts the jury could have found leaving certain details for discussion with the issues raised. The defendant, who immigrated to the United States from Haiti, was a United States citizen when he began online communication with the victim, who lived in Haiti. They met twice in Haiti before the defendant proposed. The victim moved into the defendant's apartment in Arkansas, in May, 2010, and they were married in June, 2010. Within eight days of moving to Arkansas the defendant began verbally and physically abusing the victim. The victim became pregnant and following a brief separation, the victim moved into a two-bedroom Brockton apartment with the defendant after she gave birth to twins in February, 2011.

On May 3, 2011, the defendant returned home from work and an argument erupted over the victim's use of the prepaid cellular telephone (cell phone) the defendant had provided to her and the possibility that she had used the prepaid minutes too quickly. The children were present in the home throughout the incident. The defendant told the victim that she does not want what he wants and that he would take the children to Haiti. He held out his cell phone and told her to call her mother to come pick her up.

The victim dialed her mother's telephone number and put the telephone on speaker as the defendant put his hand on her neck and pushed her over one of the infant's portable cribs, causing it to break; he began hitting and punching her. She reached into his pocket, where he put his cell phone, but he stopped her by biting her left hand. He warned her that she would not be able to "call 911 if [he] destroy[ed] her hand" and that even if she does reach the police, because he knows the system, "he will pay something and get release[d]."

At some point after he bit her hand, the victim tried to get to the apartment entrance from the bathroom but the defendant grabbed her, held her inside the bathroom, and struck her head on the faucet. During the altercation, the victim's mother called the defendant's cell phone and he answered it. As he spoke to her, the victim went to the back door and gestured to a passing teenager for help, but the boy ignored her. The defendant went out the back door, onto the back porch, to continue the conversation, shutting the victim inside. The victim heard him say he will "break" anyone who comes there. When he hung up, at around 9:00 P.M. or 10:00 P.M. , the defendant took the victim's purse that contained her passport and other documents and locked it in a closet to which only he had a key.

Although the altercation de-escalated for a period of time, when the defendant saw the victim trying to go out the front door shortly after midnight, he grabbed her and began hitting her, causing a cut near her left eye that bled. The defendant dragged her into the bedroom and continued hitting her, and blood started to get on the crib, the floor, and the wall. He told her to go wash her face. The defendant found their marriage certificate in the locked closet and ripped it up and told her he was finished with her.

The defendant ordered her to get into bed so he could "fuck [her] the last time ...." He did not acknowledge her refusal and when she asked him to use a condom, he said, "No." He put his hand on the back of her neck and forced her forward. After they had sexual intercourse, he grabbed a knife from the kitchen and put it under the mattress and went to sleep. The victim laid down next to him but was unable to sleep. At daylight, the defendant told her he did not want her there when he came home and then went to work. The victim was able to get the attention of a passerby and shortly thereafter, a police officer arrived at her door.

The officer described the victim as shaken, crying, and very upset. He observed a cut on her eye and abrasions and cuts on top of her hand. The apartment was in disarray and police observed a broken crib, and upon their return a week later, reddish brown stains on the bedroom wall, a broken cell phone, and a kitchen knife under the mattress. Firemen were summonsed to take the door off the locked closet. Inside the closet, police found the victim's passport and ripped-up marriage certificate.

Emergency workers arrived and transported the victim and her children to the emergency room at Good Samaritan Hospital. Evidence that included testimony, medical records, and photographs showed that the victim had redness around her neck, an abrasion and scar on her forehead, new and old bruises on her left hand, new bruises on her right hand, a bite mark, swollen and red eyes, a scab over the left eye and under her lip, redness on the back of her left arm, and a bruise on her left shin.

The victim's bloodied dress and the tee shirt the defendant was wearing on May 4, 2011, with what appeared to be a blood stain on it were admitted in evidence.

The defendant spoke to police and testified that a pushing match had ensued from an argument over her use of prepaid cell phone minutes and that during the fight, the two of them fell over the crib. He admitted biting her and that she sprained her neck when he pushed her into the crib. A police officer testified that the defendant admitted he had refused to wear a condom, but the defendant testified and he denied he made that statement.

Discussion. 1. Denial of motion for new trial. On appeal of a ruling on a motion for a new trial, we review for "whether there has been a significant error of law or other abuse of discretion," and we "extend[ ] special deference to the action of a motion judge who was also the trial judge," as was the case here. Commonwealth v. Grace, 397 Mass. 303, 307 (1986). In his motion, the defendant asserted that trial counsel was ineffective for failing to redact certain portions of the victim's medical records, to seek a new interpreter or in the alternative, a mistrial, and to request a curative instruction for the defendant's outburst. We discuss the asserted grounds in order.

a. Redaction of medical records. The defendant points to the following scattered references, some of which were repeated up to three times, on twelve pages of an approximately sixty-nine page medical record, and claims that counsel was ineffective for failing to include them among her other requests for redaction. The challenged references are to "assault," "assault by human bite," "SP assault," "domestic violence case," "social assault domestic evidence," "physically hurt by husband," "assaultive behavior," "assailant held her by neck," "children present during assault," "hands around neck," "hit head off crib," "punching in eye, in stomach." The judge correctly found that the last three references were properly admitted "as fact specific references to the reported cause of [the victim's] injuries." See, e.g., Commonwealth v. Dargon, 457 Mass. 387, 396 (2010). The judge also correctly concluded that the remaining terms should have been redacted. See, e.g., id. at 397. Because the failure to redact the language satisfies the first prong of the ineffective assistance standard, we turn to a consideration whether the failure to do so deprived the defendant "of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We agree with the judge that it did not.

The language at issue is relevant only to the three assault and battery charges and those charges were supported not only by the victim's detailed testimony but by significant other independent evidence. For example, with respect to the assault and battery related to the defendant pushing the victim into the crib, a police officer described the broken crib in the apartment that the victim said had collapsed during the altercation. With respect to the assault and battery related to the defendant biting the victim's hand, one nurse testified to observing a bite mark, a second nurse and police officer described seeing wounds on the victim's hand, and the defendant admitted he had bitten the victim. With respect to the assault and battery related to the defendant punching the victim in the face, three witnesses testified to the cut on the victim's left eye, police observed what appeared to be blood on the wall in the apartment where the victim said the incident occurred, and the defendant admitted he saw the victim bleeding after their dispute. In addition, photographs of the victim's injuries were admitted in evidence, providing the jury with their own ability to assess whether they corroborated the victim's account of how the injuries occurred.

In these circumstances, the conclusory references that were somewhat buried in the medical records would not have offered any information that the jury did not already have. Moreover, that the jury did not rely on the challenged language is bolstered by their acquittal of the defendant on the rape charge despite the inclusion in the medical records of the "primary diagnosis" being "adult sexual assault." See Commonwealth v. Dargon, supra at 396-398 (errors in failing to redact more portions of medical record did not materially influence verdict).

b. Interpreter. At trial, defense counsel reported to the judge that the defendant's family members had approached her during a break in the victim's testimony to tell her that the interpreter was inaccurately translating the testimony, a point counsel was sensitive to because she knew some French and had noticed a deviation herself. Counsel, however, reported no specific misinterpretation to the judge. In response, the judge instructed the interpreter to translate "very closely to what the witness is saying and be mindful of any expansion on it."

On appeal, the defendant focuses on several areas of the victim's testimony that he claims were misinterpreted by the Haitian translator and argues that counsel was ineffective for failing to seek a new interpreter or alternatively, a mistrial. We agree with the judge, who carefully considered each allegation in detail, that there was no material information mistranslated and any errors did not prejudice the defendant. See Commonwealth v. Festa, 369 Mass. 419, 429 (1976) (imperfections in translation may arise with use of interpreter under even best of circumstances). We agree with the judge that counsel was not ineffective in failing to obtain a new interpreter or to request a mistrial, where none of the purported errors deprived the defendant of an otherwise available defense. Commonwealth v. Morales, 440 Mass. 536, 549-550 (2003) (trial counsel not ineffective for failing to move for mistrial where request would have been futile).

c. Curative instruction. The defendant's claim that counsel was ineffective for failing to seek a curative instruction after his outburst at trial fails to show, as is required, that counsel's strategy was manifestly unreasonable. See, e.g., Commonwealth v. Long, 476 Mass. 526, 529 (2017). Here, counsel testified that she believed the outburst was advantageous to the defense as showing genuine human emotion, particularly because the outburst was not violent but "more of a pleading." Nor was it ineffective for counsel to forgo a curative instruction given the risk that it may have only emphasized the outburst. See Commonwealth v. Santiago, 458 Mass. 405, 413 (2010).

2. Missing witness instruction. The defendant has not established, as he must to prevail, that the judge abused her discretion in denying his request for a missing witness instruction with respect to the victim's mother. See, e.g., Commonwealth v. Williams, 475 Mass. 705, 721 (2016). The evidence showed that the victim's mother may have been on the telephone when the defendant pushed the victim into the crib and then shortly thereafter, when the defendant told her that he would break anyone who came to the house. Because her testimony offered nothing of "distinct importance" to the case, the judge did not abuse her discretion in denying the defendant's request. Once the judge did so, "counsel [was] not permitted to argue the issue in closing." Ibid.

3. Cross-examination of the defendant. Contrary to the defendant's argument, the prosecutor's cross-examination of the defendant did not exceed permitted bounds merely because she included the victim's version of the facts in her leading questions to the defendant. We agree with the Commonwealth that the questioning was no more than vigorous cross-examination and appears more likely "designed to serve the proper purpose of 'elicit[ing] an explanation of differences from prior testimony,' " Commonwealth v. Dickinson, 394 Mass. 702, 707 (1985), quoting from Commonwealth v. Donovan, 17 Mass. App. Ct. 83, 88 (1983), rather than "transform[ing] the interrogation stage of the trial into the phase traditionally reserved for argument and summation." Commonwealth v. Long, 17 Mass. App. Ct. 707, 709-710 (1984). Given that the jury acquitted the defendant of most of the charges, it is clear that the questioning was not unfairly prejudicial.

Judgments affirmed.

Order denying motion for new trial affirmed.

      Those charges include rape, assault by means of a dangerous weapon (knife), and two counts of threat to commit a crime, occurring between May 3 and May 4, 2011; two counts of assault and battery occurring on February 18, 2011; assault and battery, assault by means of a dangerous weapon (tire iron), and threat to commit a crime, all occurring on April 22, 2011; three counts of assault and battery occurring on April 25, 2011; and assault and battery and assault by means of a dangerous weapon (knife) occurring on April 26, 2011.

      The proceedings were translated by a court certified Haitian interpreter who was sworn, as is required, prior to commencing work. G. L. c. 221C, § 4 (interpreter must "affirm that he will make true and impartial interpretation using his best skill and judgment in accordance with the standards prescribed by law and the ethics of the interpreter profession").

      The defense hired an interpreter to listen to the audio recording of the trial testimony in conjunction with reading the original transcript, and to produce a revised transcript showing the discrepancies. At the hearing on the motion for a new trial, the interpreter testified.

      We therefore reject the defendant's contention that counsel's decision to forgo a request for a new interpreter was inadvertent rather than intentional.

      We also reject the defendant's challenge to the cross-examination of the defense witness. It is evident that the prosecutor was properly trying to elicit the fact that the witness, the defendant's "best friend," had spoken to the defendant since the incident but that they had not discussed the criminal case. Contrary to the defendant's argument, the prosecutor had no reason to believe that the defendant's best friend would nonresponsively state that the defendant had been in jail after the incident, and the judge immediately struck the nonresponsive statement. See Commonwealth v. Remedor, 52 Mass. App. Ct. 694, 706 (2001) (jury presumed to follow judge's instruction to disregard struck testimony).


text:
    COMMONWEALTH v. Lookens DORCELY.
    17-P-295
    Appeals Court of Massachusetts.
    Entered: June 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from an order revoking his probation and imposing sentence. He argues that the judge committed an abuse of discretion in revoking his probation where the Commonwealth failed to prove by a preponderance of the evidence that he committed either one of two crimes (distribution of cocaine and armed assault with intent to murder) that formed the principal bases of the revocation. We affirm.

In 2013, the defendant pleaded guilty to unarmed robbery, assault and battery, and assault. On the charges of assault and assault and battery, the defendant was sentenced to the house of correction. On the charge of unarmed robbery, the defendant was sentenced to three years of probation from and after the committed sentences on the other charges. Once on probation, the defendant was required to, among other things, obey all laws and attend school, providing proof of attendance every thirty days. In 2016, the probation department issued the defendant a notice of probation violation, and, after a hearing, the judge found the defendant in violation of his probation for failing to comply with the aforementioned conditions. The judge revoked probation and imposed a committed prison sentence of three years on the unarmed robbery charge.

"A determination whether a violation of probation has occurred lies within the discretion of the hearing judge. The Commonwealth must prove a violation of probation by a preponderance of the evidence." Commonwealth v. Bukin, 467 Mass. 516, 519-20 (2014) (citation omitted). "A proposition is proved by a preponderance of the evidence 'if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.' " Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001), quoting from Sargent v. Massachusetts Acc. Co., 307 Mass. 246, 250 (1940).

The defendant argues that the Commonwealth failed to prove that the substance he distributed was cocaine because Sergeant Detective Dwan could not have identified the substance merely by sight. "Proof that a substance is a particular drug ... may be made by circumstantial evidence." Commonwealth v. Dawson, 399 Mass. 465, 467 (1987). As long as a judge finds a witness has sufficient experience that would "permit him to give an opinion as to what drug a particular substance was," such an opinion is admissible. Ibid. "[T]he judge's allowance of the testimony implies a prior determination by him that the witness's experience qualified him" to identify the substance. Commonwealth v. Cantres, 405 Mass. 238, 246 (1989).

Sergeant Detective Dwan, the commander of the Boston police department Area A-1 drug control unit, testified regarding his extensive narcotics training and experience. He also testified to having seen and handled substances that were later tested and found to be crack cocaine. In addition to his own visual identification of the substance, Sergeant Detective Dwan testified that the buyer had admitted to buying crack cocaine from the defendant. The detective also testified that the buyer's companion had a hot crack pipe, which he could have inferred meant it was used minutes before to smoke a portion of what the defendant had sold. Based on his experience and his knowledge, the detective concluded that the substance was likely crack cocaine. The evidence was sufficient to establish that the defendant distributed cocaine.

The defendant also argues that the Commonwealth failed to prove that he committed an armed assault with attempt to murder where the only evidence of the crime was unreliable hearsay. We disagree. Reliable hearsay "can be the basis of a revocation." Commonwealth v. Durling, 407 Mass. 108, 118 (1990). In assessing whether hearsay is reliable, a court can consider "(1) the level of factual detail, rather than generalized and conclusory assertions; (2) whether the statement is based on personal knowledge and direct observation; (3) whether the statement is corroborated by evidence submitted by the probationer; (4) whether the statement was provided under circumstances that support the veracity of the source; and (5) whether the statement was provided by a disinterested witness." Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010), quoting from Commentary to Rule 6 of the District Court Rules for Probation Violation Proceedings 800 (LexisNexis 2008-2009).

The hearsay that the defendant alleges is unreliable is the recorded police interviews of five witnesses and grand jury testimony that the Commonwealth submitted in evidence. We discern no abuse of discretion in the judge's implicit finding that the hearsay was reliable. The factually detailed evidence, both in the interviews and in the grand jury testimony, is based on the witnesses' direct observations and personal knowledge. The circumstances surrounding the statements also lend support that the hearsay is reliable. See Commonwealth v. Maggio, 414 Mass. 193, 199 n.3 (1993) (copies of grand jury minutes or detailed police reports are potential sources of reliable, factually detailed hearsay). See also Commonwealth v. Nunez, 446 Mass. 54, 59 (2006) (that witness could be prosecuted for making false report to police officer "bolsters the reliability of the report[ ]" [citation omitted] ). Although one of the witnesses was testifying with the hope of help from the prosecution with his open charges, he still provided factually detailed personal observations to the police and the grand jury that were corroborated by other evidence. Hearsay need not "satisfy all the above criteria to be trustworthy and reliable." Patton, 458 Mass. at 133. Given the reliable hearsay, the judge was within his discretion to find the Commonwealth met its burden where multiple witnesses identified the defendant as the person who shot at the victim.

"If the judge determines that the defendant is in violation, ... [h]ow best to deal with the probationer is within the judge's discretion." Durling, 407 Mass. at 111. Where either one of the criminal offenses would have warranted revocation of probation, the judge was well within his discretion in revoking the defendant's probation upon the finding of multiple violations and imposing a committed sentence.

Order revoking probation and imposing sentence affirmed.

      The defendant does not dispute that he failed to provide proof of school attendance.

      The defendant does not challenge the sufficiency of proof for the other elements of the offense.


text:
    Ronald RUDNICK & another v. QBJKL, LLC, & others.
    17-P-490
    Appeals Court of Massachusetts.
    Entered: June 15, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Thomas Kennedy.

      Lance Smith, Jeffrey Q. Smith, and Karen Salinaro.

   This is an appeal from an order allowing a special motion to dismiss pursuant to G. L. c. 184, § 15(c ), in an action for lis pendens. A judge of the Superior Court granted the motion on the grounds that the plaintiffs, Ronald Rudnick and Thomas Kennedy, failed to demonstrate the existence of an accepted offer that satisfied the Statute of Frauds. We affirm.

We summarize the verified facts before the motion judge. See G. L. c. 184, § 15(c ). The property that is subject to this litigation consists of two and one-half lots of undeveloped land in Chatham, which has been owned by the Smith family for nearly fifty years and was recently transferred to QBJKL, LLC, a company owned by three Smith siblings. In September, 2016, the plaintiffs, who are experienced real estate developers, approached the defendants to purchase the entire interest in the property for three million dollars. The defendants declined the offer and informed the listing agent, Jack Bohman, that they were willing to sell the entire interest in the property for five million dollars.

According to the affidavit of Lance Smith, one of the Smith siblings, on December 18, 2016, Bohman, who was acting as a dual agent for both parties, provided the defendants with a draft letter of understanding from Rudnick and Kennedy that "define[d] the terms" that they proposed to purchase the entire property. The terms included a $3,800,000 purchase price and $10,000 deposit. The following day, after consulting with attorney William Riley, the defendant Lance Smith sent an electronic mail message (e-mail) to Bohman with a response to the letter of understanding. The response identified terms he found acceptable and unacceptable and suggested new terms he deemed necessary but that were not included in the draft. He also specifically reserved the right to solicit other offers while the proposed transaction was pending.

Bohman forwarded Lance Smith's response to the letter of understanding to Rudnick and Kennedy on December 20, 2016, together with an e-mail that said that "Lance and his siblings have agreed to these terms after consulting with attorney Bill Riley.... Once [you have reviewed it] we can formalize it and have all parties sign, or we can circulate an email between all parties and Riley and have everyone note agreement." Bohman then left for a vacation in Africa and did not return until January 6, 2017.

Riley sent Rudnick and Kennedy an unsigned letter of understanding on December 21, 2016, and sent a revised letter on December 22, 2016. The letter was addressed to QBJKL, LLC, and contained signature lines for Kennedy and Rudnick. It also contained a signature line for QBJKL, LLC. The document did not include the proposed revisions that were forwarded to Rudnick and Kennedy on December 20 from Bohman.

On December 28, 2016, the broker's office received the letter of understanding, executed by Kennedy and Rudnick, together with a check for $50,000, representing the deposit. QBJKL, LLC did not sign the letter. The broker continued to market the property. This lawsuit followed, together with a motion for lis pendens on January 4, 2017. The check was returned on January 9, 2017, uncashed.

Discussion. "A memorandum of lis pendens is a notice on the record title of real estate that reflects the pendency of any action that 'affects the title to real property or the use and occupation thereof.' Wolfe v. Gormally, 440 Mass. 699, 700 (2004).... Section 15(c ), inserted by St. 2002, c. 496, § 2, provides that a special motion to dismiss 'shall be granted if the court finds that the action or claim is frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds.' " McCann v. McGowan, 71 Mass. App. Ct. 513, 519 (2008). We review the order allowing a special motion to dismiss and denying a motion for a memorandum of lis pendens for an error of law or abuse of discretion. See Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73, 81 (2005) ; DeCroteau v. DeCroteau, 90 Mass. App. Ct. 903, 904 (2016).

The complaint alleged that the parties reached an agreement on all essential terms of the sale and the defendants failed to sign the letter of understanding. Upon review of the verified complaint and pleadings, the judge granted the special motion to dismiss because there was no contract which satisfied the Statute of Frauds. The Statute of Frauds bars enforcement of a contract for the sale of land unless it is "in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized." G. L. c. 259, § 1. This case therefore turns on whether the letter from Riley to Rudnick and Kennedy was a binding offer to sell made by the defendants, or a solicitation of an offer which the defendants "had the power to accept or reject." Cellucci v. Sun Oil Co., 2 Mass. App. Ct. 722, 727 (1974).

The letter, addressed to the defendant seller, QBJKL, LLC, and unsigned by any representative of QBJKL, LLC, was a solicitation of an offer. This case is akin to Cellucci, in which Sunoco Oil Company (Sunoco) prepared a purchase and sale agreement which it forwarded to a prospective seller of real property. The seller had been told that the representative of Sunoco forwarding the purchase and sale agreement did not have authority to sign it, but that final approval was automatic or perfunctory. Id. at 725. The seller executed the standard form. We held that "[a]lthough Sunoco drafted the standard form instrument which it sent to the plaintiff, [the plaintiff's] execution was merely an offer which Sunoco had the power to accept or reject." It is undisputed that there was no acceptance by Sunoco in the manner called for by the offer." Id. at 727 (citations omitted). The same is true here. The plaintiffs were provided with an unsigned letter, addressed to the defendants, which (if signed and returned by the plaintiffs) would constitute an offer to purchase the real estate. When the plaintiffs signed the letter, the offer was made. When the sellers' attorney provided the letter he solicited an offer. Ibid. Accord, Kuzmeskus v. Pickup Motor Co., 330 Mass. 490, 493 (1953) (contract proffered by company's general manager, which contained clause requiring authorization by seller's corporate officer, and blank space for officer's signature, held to be "no more than an invitation or request to give orders on the terms and conditions therein stated"). Contrast Lambert v. Kysar, 983 F.2d 1110, 1114-1115 (1st Cir. 1993) (signed order form was offer by seller which manifested intent to be bound).

The verified complaint is devoid of any evidence suggesting that Riley was authorized to bind the sellers to the offer he solicited on their behalf, much less that they intended to be bound to sell if the plaintiffs signed and returned the proposed letter of understanding. The verified complaint contains a conclusory allegation that Riley was authorized to bind QBJKL, LLC. Riley submitted an affidavit stating he was not so authorized and had not communicated to anyone that he was. Furthermore, the complaint alleged that "Riley and Bohman as authorized agents of the [d]efendants stated that the [d]efendants would execute the offer to purchase letter if the [p]laintiffs executed the letter and paid the $50,000. deposit." The correspondence between the parties, described above, does not support this statement.

The judge correctly concluded that there was no contract, and that the action was barred by the Statute of Frauds. The judge did not abuse his discretion in dismissing the complaint.

The award of fees is mandatory. See G. L. c. 184, § 15(c ) ("If the court allows the special motion to dismiss, it shall award the moving party costs and reasonable attorneys' fees"). Within fourteen days of issuance of the rescript in this matter, QBJKL, LLC may apply to the panel that decided this appeal for an award of reasonable appellate attorney's fees and costs under G. L. c. 184, § 15(c ). See Fabre v. Walton, 441 Mass. 9, 10-11 (2004) ; McCann v. McGowan, supra at 520-521. The petition should address the nature of the case and the issues presented, an itemization of the time and labor required, the experience, reputation, and ability of the attorney, and the usual rate charged for similar services by other attorneys. The plaintiffs will then have fourteen days to file an opposition. See Fabre v. Walton, supra.

Order dated February 14, 2017, affirmed.

      The plaintiffs appealed from the order allowing the special motion to dismiss. Subsequent to the order, the Superior Court judge made findings on the defendants' motion for attorneys' fees and a judgment entered dismissing the complaint. The plaintiffs did not appeal the judgment. The matter is not moot as the statute, G. L. c. 184, § 15(d ), permits "[a]ny party aggrieved by a ruling under subsection (c ) ... may appeal pursuant to the first or second paragraphs of section 118 of chapter 231. Thirty days after the entry of ... an order or judgment dismissing the claimant's action as provided hereinabove, the order or judgment shall become final unless the party seeking the memorandum has filed an appeal under this paragraph and records notice thereof within the [thirty] day period in the registry of deeds for the county or district in which the real property lies." There is no dispute that the plaintiffs' appeal is proper.

      For example, Rudnick and Kennedy had requested a sixty-day due diligence period to investigate the property. Lance Smith's email stated that the defendants agreed to the due diligence period, but they wanted the right to market the property and sell it at any price above the plaintiffs' offer; Rudnick's and Kennedy's only recourse would be to meet or beat the other offer. Rudnick and Kennedy also conditioned their offer on the right to cut timber; Lance Smith's response requested a fifty-fifty split of the proceeds.

      It retained the $3,800,000 purchase price but increased the deposit to $50,000.

      Rudnick and Kennedy contend that Riley's December 21, 2017, letter should be read in conjunction with Lance Smith's correspondence to form a complete contract. From the record before us, it appears that the argument is made for the first time on appeal, and is deemed waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). Even if we were to consider the argument, the plaintiffs would fare no better. There are material differences between the offer solicited by Riley and the terms Lance Smith stated would be acceptable. The most important of these was the reservation of the right to continue to market the property. The central tenet of the complaint and the motion for lis pendens was that any attempt to market or sell the property to a third party constituted a breach of contract and was fraudulent. The solicitation of an offer and the Smith e-mail are fatally at odds.


text:
    COMMONWEALTH v. Lee V. LAM.
    17-P-663
    Appeals Court of Massachusetts.
    Entered: June 15, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Brockton District Court, the defendant, Lee V. Lam, was convicted of assault and battery on a family or household member in violation of G. L. c. 265, § 13M(a ). On appeal, the defendant claims that (1) the judge abused his discretion by declining to ask a question during jury empanelment; (2) the prosecutor mischaracterized the evidence in her closing argument; and (3) the absence of a self-defense instruction created a substantial risk of a miscarriage of justice. We affirm.

Discussion. 1. Voir dire question. Before trial, the defendant filed a motion requesting twenty-two voir dire questions, including "Have you or has any member of your family applied for a [r]estraining [o]rder or been the defendant in a [r]estraining [o]rder petition?" The judge declined to ask the question because the confidential juror questionnaire addressed it. The judge did, however, also ask the venire, "Have you or any member of your family ever been involved in a legal proceeding, either as a witness or as a defendant, in an assault and battery or domestic violence case?" Five potential jurors answered the question affirmatively, and all five were eventually dismissed.

The defendant contends that the judge erred in refusing to ask the prospective jurors about their familiarity with restraining orders, and that this refusal compromised the impartiality of the jury. We review the judge's decision for an abuse of discretion. See Commonwealth v. Lopes, 440 Mass. 731, 736 (2004) ; Commonwealth v. Carvalho, 88 Mass. App. Ct. 840, 844-845 (2016).

The question that the defendant requested was addressed by the confidential questionnaire. See Carvalho, supra at 844-845 (judge acted within her discretion in declining to ask venire question specific to their experiences with harassment prevention or restraining orders). Furthermore, the judge questioned the jurors about personal or familial experiences with domestic violence and assault and battery cases, a broad question which also encompassed the issuance of restraining orders. There is nothing in the record to suggest that the jury selection process was anything but fair and impartial. See Commonwealth v. Reavis, 465 Mass. 875, 890 (2013).

2. Prosecutor's closing arguments. The defendant objected when the prosecutor stated, "There are two other witnesses [the neighbor and Officer Pedro] who testified that they saw [the wife] on October 21st and that her injuries were consistent with her allegations." The objection was overruled. On appeal, the defendant claims that the Commonwealth mischaracterized the evidence and alluded to facts not in evidence, because neither witness explicitly testified that the wife's injuries "were consistent with her allegations."

"[P]rosecutors are entitled to argue 'forcefully for the defendant's conviction,'" but "closing arguments must be limited to the facts in evidence and the reasonable inferences that may be drawn therefrom." Commonwealth v. Diaz, 478 Mass. 481, 487 (2017), quoting from Commonwealth v. Wilson, 427 Mass. 336, 350 (1998). The prosecutor did limit herself to the facts in evidence and the reasonable inferences therefrom.

In her testimony, the wife stated she was injured when the defendant hit her on the head. Both witnesses, the neighbor and Officer Pedro, testified that they observed the wife's red mark. Photographs were admitted that showed the injury. The prosecutor was permitted to ask the jury to draw the inference that the injuries were consistent with the testimony that the defendant had hit the wife. There is no factual disconnect between the Commonwealth's closing arguments and the witness's testimony.

3. Self-defense instruction. The defendant contends that the judge should have, sua sponte, instructed the jury on self-defense. The defendant did not request a self-defense instruction. We review for error, and if any, for a substantial risk of a miscarriage of justice. Cf. Commonwealth v. Norris, 462 Mass. 131, 143 (2012) (judge not required to give instruction sua sponte when defendant did not request one at trial and instruction would be inconsistent with defense presented). See Commonwealth v. Shippee, 83 Mass. App. Ct. 659, 664 (2013).

A defendant is entitled to an instruction on self-defense "if the evidence, viewed in the light most favorable to him, is sufficient to raise the issue." Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). See Commonwealth v. Burbank, 388 Mass. 789, 794 (1983). "The elements of self-defense, where nondeadly force is used, are (1) a reasonable concern for one's personal safety ... ; (2) the use of all reasonable means to avoid physical combat; and (3) the degree of force used must be reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness" (footnote omitted). Commonwealth v. Adams, 458 Mass. 766, 774-775 (2011).

The defendant contends that his wife was the aggressor in the physical altercation that led to the assault and battery charge because the wife threw a remote control onto the defendant's sofa and pushed the defendant away when he came towards her. This evidence does not create a reasonable doubt that the defendant had reason to fear for his personal safety when, after the remote landed on the couch, he moved towards his wife, stood over her, and punched her in the head. Even assuming that the defendant could show that he had a reasonable concern for his personal safety, he failed to use all reasonable means to avoid the confrontation. See id. at 775 (self-defense instruction not required where defendant did not seek "all reasonable means to avoid physical combat"). Because there was no evidentiary basis for the instruction, there was no error.

Judgment affirmed.

      Part three of the confidential juror questionnaire (2017) asks, "Have you or anyone in your household or family ever had any of the following experiences with the law ... [b]een served with a court order ... [or] [s]ought a court order (restraining order, stay-away order, injunction, etc.)?" See G. L. c. 234A, § 22.