text:
    COMMONWEALTH v. Ferdinand J. PEREIRA.
    17-P-493
    Appeals Court of Massachusetts.
    Entered: June 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury-waived trial in the District Court, the defendant, Ferdinand J. Pereira, was convicted of operating a motor vehicle while under the influence of intoxicating liquor. He then moved for a new trial, which motion was denied. He now appeals from the judgment and from the order denying his second motion for new a trial. We affirm.

Background. The sole witness at trial was Officer David Allen of the Spencer police department. He testified as follows.

On September 3, 2014, at approximately 6:15 A.M. , Allen responded to 5 Ash Street where an automobile had crashed into a stone retaining wall; the defendant was seated in the automobile. Allen asked the defendant what had happened, and the defendant stated that he had fallen asleep on his drive home to Spencer from Worcester. Allen asked the defendant if he had consumed any alcohol before driving, and the defendant said that he had consumed "a couple of drinks" at around 11:30 P.M. the preceding evening. Allen said that the defendant was "unable to account" for the time period between 11:30 P.M. the previous evening and 6:15 A.M. that morning.

Allen observed that the defendant's eyes were "bloodshot and glassy." Allen characterized the defendant's speech as "slow and lethargic." Allen also smelled the odor of alcohol on the defendant's breath. When Allen asked the defendant how he ended up where he was, the defendant responded that he lives further down on Main Street, and he mistakenly turned onto Ash Street and hit the stone wall.

Allen then asked the defendant to perform two field sobriety tests. The first was the nine-step walk and turn. Allen stated that the defendant stepped off the line twice in the first series of nine steps and had to keep his arms fully raised to maintain his balance. Allen then administered the one-legged stand test. The instructions for that test were for the defendant to raise his foot and count to thirty, or until Allen told him to lower his foot. Allen stated that it took the defendant three attempts "to make it to the count of one." On his fourth time "he made it from two to seven and had to put his foot down again." Allen concluded that the defendant was unable to perform the test.

On the basis of his observations and the defendant's performance on the tests, Allen placed him under arrest for operating while under the influence of alcohol.

Discussion. The single issue that the defendant raises on appeal pertains to the denial of his motion for new trial. Specifically, he claims that his trial counsel was ineffective because he failed to seek to introduce in evidence a digital recording (DVD) that was taken at the time of the defendant's booking and then referred to it in closing argument. The defendant claims that the DVD supports his claim that he was not intoxicated. After the arguments and before announcing his decision, the judge stated that she was "not going to be able to consider ... the DVD; it wasn't [introduced in] evidence."

In order to prevail on a claim for ineffective assistance of counsel, a defendant must show that (1) the "behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer," and that it (2)"likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "[T]here ought to be some showing that better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). The motion judge was also the trial judge whose decision is afforded special deference. See Commonwealth v. DiBenedetto, 475 Mass. 429, 439-440 (2016). We review the denial of the motion for abuse of discretion. See Commonwealth v. Duart, 477 Mass. 630, 631 (2017).

The motion judge concluded that the defendant had failed to satisfy either prong of the Saferian test. She specifically found that the defendant did not show that "better work might have accomplished something material for the defense." Satterfield, supra. Assuming that counsel's failure to introduce the booking DVD video in evidence was an oversight that cannot be rationalized as a strategic decision, we conclude that the motion judge did not abuse her discretion in determining that the defendant failed to show that this omission prejudiced him.

The defense was that the Commonwealth failed to prove that the defendant was under the influence. The defendant presented this defense through his cross-examination of Officer Allen. With respect to booking, Allen testified that he did not have any difficulty understanding the defendant, that the defendant answered all questions appropriately, that the defendant was "compliant" with all requests, that the defendant did not need any assistance in getting up or sitting down, and that the defendant was cooperative, polite, and respectful. Thus, it appears that defense counsel was effective in being able to get the officer to agree to his characterization of the defendant during the booking process, even without introduction of the DVD.

Even if the defendant appeared not to be intoxicated in the booking DVD, that would not negate Allen's observations of him at the time of his arrest, his performance on the field sobriety tests, his admission to having had several drinks earlier in the evening, and the fact of the accident itself, which involved crashing into a retaining wall because the defendant misjudged the location of his destination. The defendant could not account for the time between his departure from the bar in Worcester and the officer's encounter with him in the morning. "[T]he Commonwealth need not prove that the defendant was drunk, only that alcohol diminished [his] ability to operate a motor vehicle safely." Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017).

The motion judge heard the evidence at trial. She was in the best position to assess the effect of defense counsel's failure to introduce the DVD in evidence. She did not abuse her discretion in finding no prejudice and denying the motion.

Judgment affirmed.

Order denying second motion for new trial affirmed.

      Before trial, the defendant admitted to sufficient facts on a charge of negligent operation of a motor vehicle; that charge was continued without a finding for three months.

      Before trial, the defendant moved to suppress evidence of the breath test that he took; that motion was allowed by the same judge who presided at trial and ruled on the motion for new trial. The booking DVD was introduced at the suppression hearing, but it was not made part of the record. The defendant did not append it to his motion for new trial. Therefore, the DVD is not part of the record now before us.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Brendan W. RAY.
    17-P-756
    Appeals Court of Massachusetts.
    Entered: June 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a District Court jury trial, the defendant was convicted of negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a ). On appeal, the defendant claims (1) the evidence was insufficient to sustain his conviction, and (2) testimony from his expert witness was improperly excluded. We affirm.

1. Sufficiency. In reviewing the judge's denial of the defendant's motion for a required finding of not guilty, we consider whether, "viewing the evidence in a light most favorable to the Commonwealth, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' (emphasis in original)." Commonwealth v. Cohen (No. 1), 456 Mass. 94, 120 (2010), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Here, the Commonwealth was required to "prove that the defendant (1) operated a motor vehicle (2) upon a public way (3) negligently so that the lives or safety of the public might be endangered." Commonwealth v. Ross, 92 Mass. App. Ct. 377, 379 (2017). See G. L. c. 90, § 24(2)(a ). The defendant contends that the Commonwealth's evidence was insufficient on the third element. We disagree.

There was evidence that the defendant failed to negotiate a ninety-degree turn due to going "a little too fast," causing his vehicle to go "up on two wheels," leave the road, and travel fifty to sixty feet down a steep, wooded embankment before crashing to a stop. The accident occurred at the intersection of two "very commonly used roads" in an area where there were multiple commercial and residential buildings. Moreover, there was "evidence ... that the defendant was under the influence of alcohol to such an extent that [his] physical condition was impaired during the field sobriety tests" that followed the accident. Ross, supra at 380. It is immaterial that there was no evidence of pedestrians or vehicles traveling nearby at the time of the accident, as the statute "only requires proof that the lives or safety of the public might be endangered, not that they are endangered." Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923 (2004). Viewing all of this evidence in the light most favorable to the Commonwealth, a rational juror could have found that the defendant's operation of his vehicle was negligent and dangerous to the public.

2. Expert testimony. The defendant filed a motion in limine seeking to question his expert witness on "certain investigatory acts not performed regarding the motor vehicle accident." The proffered expert was a former State trooper trained in accident reconstruction. The judge denied the motion because the defendant was "not offering [the expert] as a reconstructionist," but rather because he had "looked at photographs [of the accident] and would opine that it would be inconclusive for the police to charge [the defendant] with negligent operation or conclude that he was negligent." The defendant claims that the judge committed error in denying the motion. We disagree.

The "proper subject of expert testimony has focused increasingly on whether, in the wide discretion of the trial judge, the subject was one on which the opinion of an expert would have been of assistance to the jury without undue prolongation of the trial and undue exploration of collateral matters." Commonwealth v. Gregory, 17 Mass. App. Ct. 651, 654 (1984). In determining the admissibility of proffered expert testimony, judges should "focus the analysis on whether the evidence is explanatory." Commonwealth v. Bienvenu, 63 Mass. App. Ct. 632, 636 (2005) (quotation omitted). In the circumstances here, where the expert accident reconstructionist was offered not to reconstruct the accident, but to opine on the Commonwealth's charging decision, we discern nothing explanatory in the proffered opinion. The judge acted within her discretion.

Judgment affirmed.

      The jury acquitted the defendant of operating while under the influence of liquor, G. L. c. 90, § 24(1)(a )(1).

      The fact that the jury acquitted the defendant of operating while under the influence of liquor did not "preclude their consideration of the evidence of intoxication in considering the negligent operation charge." Ross, supra at 380.


text:
    COMMONWEALTH v. Jose R. VARGAS.
    17-P-121
    Appeals Court of Massachusetts.
    Entered: June 12, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In October, 2003, the defendant, who is a lawful permanent resident, pleaded guilty to possession of marijuana in an amount exceeding thirty grams. Several years later, the Federal authorities initiated removal proceedings against the defendant based on his marijuana conviction. As a result, he is now facing deportation and loss of his lawful permanent resident status.

In 2015, the defendant filed a consolidated motion for new trial and motion to vacate his conviction. The Commonwealth did not file a written opposition to the motion, and it made clear at the nonevidentiary hearing on the motion that it was not opposing the defendant's request to withdraw his guilty plea. A District Court judge (who was not the plea judge) nevertheless denied the motion, and the defendant appealed. Because we conclude that the motion presented several "substantial issues" that warrant an evidentiary hearing, Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1502 (2001), we vacate the order denying the motion and remand the matter for an evidentiary hearing.

Background. The facts about the incident underlying the defendant's guilty plea are not in dispute. In the evening of March 27, 2003, a State police trooper stopped a vehicle, in which the defendant was a passenger, for an inoperable headlight. After smelling the odor of burnt marijuana, the trooper ordered the driver and the defendant to exit the vehicle, pat frisked them (finding nothing), and read them their Miranda rights in English. Through a subsequent search of the vehicle, the trooper found a bag containing approximately eighty-two grams of marijuana. After that, the defendant and the driver were taken into custody and given additional Miranda warnings (again in English); upon further questioning, the defendant acknowledged that he had purchased the marijuana.

In his report about the incident, the trooper specifically noted his view that the defendant "demonstrated a very good understanding and use of the English language" during the booking process. This report indicates that the trooper based his view on the fact that he "did not have to repeat [himself] at any point," and that the defendant appeared to be able to follow directions in using a digital fingerprint machine.

On September 26, 2003, the defendant and his trial counsel signed a preprinted tender of plea form (commonly known as a green sheet). The green sheet stated that the defendant understood that conviction on the drug charge "may have the consequence[ ] of deportation" and that plea counsel had explained the defendant's rights to him. For reasons not explained in the record, the plea hearing did not occur until October 23, 2003, almost a full month after the defendant signed the green sheet. A Spanish translator was provided for the plea colloquy. The defendant pleaded guilty to the possession of marijuana in an amount greater than thirty grams. He was required to pay a fine of $1,000, and sentenced to six months of probation.

In the affidavit filed in support of his motion to withdraw his plea, the defendant averred that he had difficulty understanding English. This statement was supported by the affidavits of the defendant's immigration counsel (who is also fluent in Spanish) and his motion counsel (who used immigration counsel as a translator). Both attorneys attested that the defendant possessed a "low proficiency" in English. The defendant further stated that while an interpreter was present during his plea colloquy, there was no interpreter present at the meetings with his plea counsel or at the signing of the green sheet.

In his affidavit, the defendant also stated that his plea counsel both never explained to him the immigration consequences of pleading guilty, and failed to pursue a motion to suppress his statement that he was the one who had purchased the marijuana found in the car in which he had been a passenger. The defendant described his ties to the United States, pointing out that he had arrived in the United States in 1987 with his mother when he was sixteen years old, lived his entire adult life here, and has had steady employment since graduating from high school. Based on this showing, the defendant argued that he would not have accepted the plea agreement had he properly been advised and that he was entitled to withdraw his plea based on his counsel's ineffectiveness.

Having not opposed the defendant's motion to withdraw his plea, the Commonwealth unsurprisingly made no effort to counter his factual allegations. Despite this, the judge denied the defendant's motion without holding an evidentiary hearing. The judge credited the trooper's observation in his report about the defendant's proficiency in English, without commenting on the affidavits to the contrary filed by the defendant, his motion counsel, and his immigration counsel. In addition, the judge commented that the defendant's claim that his plea counsel failed to explain the immigration consequences of a guilty plea was "supported only by the self-serving affidavit of the defendant." In the end, however, the judge expressly stated that he was not "deciding whether [plea] counsel was ineffective for failing to inform the defendant of the immigration consequences [of the plea]." Instead, the judge rested his ruling on his conclusion that the defendant failed to demonstrate prejudice, or, as the judge put it, the defendant did not put forward "a justifiable reason for pleading not guilty and going to trial."

Discussion. "A motion for withdrawal of a guilty plea functions as a motion for a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). An appellate court typically reviews the denial of a motion for a new trial 'only to determine whether there has been a significant error of law or other abuse of discretion.' " Commonwealth v. Diaz, 75 Mass. App. Ct. 347, 350 (2009), quoting from Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006). "A judge may make the ruling [on a motion for new trial] based solely on the affidavits and must hold an evidentiary hearing only if the affidavits or the motion itself raises a 'substantial issue' that is supported by a 'substantial evidentiary showing.' " Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016) (quotation omitted).

We agree with the defendant that under the circumstances of this case an evidentiary hearing should have been held with respect to both ineffective assistance of his trial counsel and the prejudice he suffered from pleading guilty. "Counsel's advice regarding the immigration consequences for a permanent resident tendering a guilty plea to controlled substance charges is a serious issue." Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 550 (2014). See Commonwealth v. Goodreau, 58 Mass. App. Ct. 552, 554 (2003) (characterizing issue of effective assistance of counsel as "unquestionably serious"). The judge's conclusion that only the defendant's affidavit supports his claim that he was not properly advised about the immigration consequences of his plea is not accurate; as noted, motion counsel made a thorough review of plea counsel's entire case file and found no notes regarding advice the defendant had been given. Moreover, this is not a case where the defendant made no efforts to question plea counsel about what occurred, or where plea counsel's silence lay unexplained. Rather, plea counsel told motion counsel he had no memory of the case and refused to file an affidavit supporting the defendant's motion. See Martinez, 86 Mass. App. Ct. at 551 ("a lawyer who is aware that his assistance some five or ten years earlier was less than exemplary might very well be reluctant to describe that lapse in an affidavit intended for submission to a court where he regularly receives new appointments").

Furthermore, the defendant's claims that he was inadequately advised are reinforced by the language issues he has raised in that a lack of proficiency in English might have significantly affected the defendant's understanding of any immigration warnings he was given. On this record, it is uncontested that plea counsel did not speak Spanish and did not provide the defendant with an interpreter during their counseling sessions. To be sure, even without the Commonwealth's contesting the defendant's asserted low proficiency in English, the motion judge was not required to accept the defendant's claims about this. However, the defendant made a sufficient showing on this point to warrant an evidentiary hearing to get to the bottom of such issues. Indeed, that the trooper may not have had to repeat himself during the booking process and that the defendant was able to use the digital fingerprint machine hardly provides robust proof that the defendant was proficient in English, let alone proof that he was able to understand the intricacies of immigration consequences of his plea deal.

It also bears remembering that the defendant is separately claiming that plea counsel was constitutionally ineffective for failing to pursue a motion to suppress based on his low proficiency in English. Specifically, the defendant argues that plea counsel should have moved to suppress the statements that he made to the troopers after he had been given Miranda warnings only in English. If the defendant could have shown that he had a poor understanding of English, then he would have had strong grounds for suppressing his statement that he had purchased the marijuana. Commonwealth v. Lujan, 93 Mass. App. Ct. 95, 101-103 (2018), and cases cited. Thus, while any language problems strengthen the defendant's claims with regard to the alleged inadequacy of the advice he received regarding immigration consequences, they also stand on their own as an additional ground of alleged constitutional ineffectiveness.

We also disagree with the motion judge's assessment that the defendant failed to make a sufficient showing of prejudice. At trial, the Commonwealth would have had to prove that the marijuana found inside the vehicle in which the defendant was a passenger was in the defendant's constructive possession. If the defendant had won suppression of his admission that he had purchased the marijuana, mustering proof beyond a reasonable doubt that the defendant constructively possessed the marijuana could have been challenging. See, e.g., Commonwealth v. Romero, 464 Mass. 648, 658 (2013) (evidence that defendant, one of multiple occupants inside of car, intended to exercise dominion and control over firearm found there held insufficient as matter of law).

In addition, the plea agreement was not particularly favorable to the defendant. While he avoided jail time, he paid a significant fine ($1,000) and was sentenced to six months of probation. The defendant's claim that he would not have accepted that plea agreement but for plea counsel's ineffectiveness has sufficient force to warrant an evidentiary hearing. This is particularly true given that-at the time the plea agreement was accepted-the defendant had been in the country as a legal resident for sixteen years (his entire adult life) and therefore may have faced " 'special circumstances' that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Commonwealth v. DeJesus, 468 Mass. 174, 183 (2014) (quotation omitted). It is well established that "a noncitizen defendant confronts a very different calculus than that confronting a United States citizen." Id. at 184. An evidentiary hearing is appropriate to address the defendant's alleged special circumstances.

Conclusion. "[T]he test for whether [the defendant's submission] raise[s] a serious issue warranting further scrutiny [at evidentiary hearing] is ... whether [it] cast[s] real doubt on [the issue]." Goodreau, 58 Mass. App. Ct. at 558. For reasons stated above, we conclude that the defendant has met that burden here. Therefore, we vacate the order denying the consolidated motion for new trial and motion to vacate conviction and remand the matter for an evidentiary hearing.

So ordered.

Vacated and remanded.

      The defendant originally had been charged with possession of a class D substance with intent to distribute and conspiracy to violate the controlled substances statute.

      Specifically, the defendant stated that plea counsel "never explained that pleading guilty to possession of marijuana would make [him] inadmissible and deportable and that the conviction would make [him] ineligible for relief from removal." According to motion counsel's affidavit, plea counsel was asked to submit an affidavit in support of the defendant but refused to do so, saying that he had no recollection of the case. Plea counsel did provide his entire case file, and motion counsel averred that there are no attorney notes memorializing that the immigration consequences of the plea were discussed with the defendant (or researched).

      The fact that no motion to suppress was filed is also confirmed by the docket.

      The application for complaint form filed with the District Court also indicates that the defendant was employed at the time of his arrest.

      The claim of ineffective assistance was based not only on plea counsel's allegedly inadequate advice as to the immigration consequences of the plea, but also on counsel's failure to utilize a translator and to file a motion to suppress the statements the defendant made after receiving Miranda warnings only in English.

      That the defendant apparently received the statutory immigration warnings required by G. L. c. 278, § 29D, does not provide "an adequate substitute for defense counsel's professional obligation to advise [his] client of the likelihood of specific and dire immigration consequences that might result from such a plea." Martinez, 86 Mass. App. Ct. at 552, quoting from Commonwealth v. DeJesus, 468 Mass. 174, 177 n.3 (2014).

      We note again that the motion judge was not the plea judge and did not have personal familiarity with the defendant. Compare Sylvester, 476 Mass. at 6. Even the plea judge might have had limited ability to evaluate the defendant's English language skills given that a translator was used at the plea hearing.

      As noted, the original charges were for possession with intent to distribute and conspiracy. At least on the record before us, evidence of intent to distribute was not strong. The amount of marijuana was less than three ounces, and no other incidents of distribution appear. On the current record, the conspiracy charge was no stronger.


text:
    Matthew PRICE v. Jack SAADE & others.
    17-P-387
    Appeals Court of Massachusetts.
    Entered: June 12, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Doing business as Starlab Recording Company.

      Chung S. Lee and SamyLee, LLC (codefendants); the codefendants are not parties to this appeal.

   The defendant Jack Saade appeals from a judgment enforcing a settlement agreement between the defendants (Saade and the codefendants) and the plaintiff. On appeal, he argues that it was error for such a judgment to enter where an alleged breach of confidentiality relieved him from compliance. We affirm.

The plaintiff filed suit after Saade engaged in self-help eviction to oust the plaintiff from the property that the plaintiff had been renting from the codefendants. After three days of mediation, all parties signed an agreement in principle that laid out specific payments to be exchanged between the parties and general mutual releases; it also required plaintiff's counsel to draft a settlement agreement containing the terms of the agreement in principle. After receiving a draft of the settlement agreement, Saade agreed to its terms with one requested change, which the parties accepted and plaintiff's counsel incorporated into the settlement agreement. When presented with that settlement agreement, however, Saade refused to sign.

Saade alleged that after the agreement in principle was signed, codefendant Chung S. Lee disclosed information from the mediation to Saade's lender, in spite of the understanding that everything discussed in mediation is to remain confidential. Based on this alleged behavior of Lee, Saade contended that he was not bound by the agreement in principle. The plaintiff responded by filing a motion to enforce the settlement agreement, which was allowed over Saade's objection.

"A settlement agreement is a contract and its enforceability is determined by applying general contract law." Sparrow v. Demonico, 461 Mass. 322, 327 (2012). See Duff v. McKay, 89 Mass. App. Ct. 538, 541-542 (2016) ("In entering judgment enforcing the parties' apparent settlement agreement, the judge in effect resolved a contract claim"). "It is axiomatic that to create an enforceable contract, there must be agreement between the parties on the material terms of that contract, and the parties must have a present intention to be bound by that agreement." Lambert v. Fleet Natl. Bank, 449 Mass. 119, 123 (2007) (quotation omitted). To have an agreement on the material terms, "it is not necessary that every term of the agreement be specified with precision, [merely that] '[t]he parties ... have progressed beyond the stage of "imperfect negotiation." ' " Ibid. (quotation omitted).

Here, the settlement agreement is the end result of a mediation. The settlement agreement lays out exactly who has to pay, who will be paid, and how much is to be paid, along with provisions regarding mutual releases, confidentiality, and antidisparagement. All material terms are present and Saade does not argue otherwise.

To determine Saade's present intention to be bound, we need to look no further than Saade's own actions. Saade signed the agreement in principle, which contained all the essential terms that were later reflected in the settlement agreement. After being presented with a draft of the settlement agreement, Saade orally agreed to its terms and requested one addition, which was agreed to by the parties and incorporated into the settlement agreement. That settlement agreement is therefore, as the judge found, an enforceable contract.

The only reason Saade provided for refusing to sign the settlement agreement was his conclusory allegation regarding Lee's contact with his lender. Saade had the opportunity to substantiate this claim by placing evidence before the judge when opposing the motion to enforce the settlement agreement, yet he failed to do so. The judge therefore did not err or abuse her discretion in allowing the motion to enforce the settlement agreement. See Fidelity & Guar. Ins. Co. v. Star Equip. Corp., 541 F.3d 1, 5 (1st Cir. 2008).

Judgment affirmed.

      As a result of a separate, unrelated action, the codefendants had conveyed the property to Saade; although the plaintiff's lease was with the codefendants, Saade owned the property.

      The codefendants did not oppose the motion.

      There is no dispute that the plaintiff and the codefendants intended to be bound by the settlement agreement.

      As to Saade's remaining arguments, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

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


text:
    COMMONWEALTH v. Stanley JEANNIS.
    17-P-899
    Appeals Court of Massachusetts.
    Entered: June 12, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from his 2010 convictions of possession of a class B substance (cocaine) with intent to distribute and possession of a class B substance (oxycodone). He also appeals from the denial, without an evidentiary hearing, of his motion and amended motion for a new trial, which had asserted that newly-discovered evidence of misconduct at the William A. Hinton State Laboratory Institute (Hinton lab) had tainted the reliability of the evidence introduced at trial that the substances seized from him were cocaine and oxycodone. The appeals were consolidated. We affirm.

On appeal the defendant's sole argument is that the motion judge abused his discretion in denying the new trial motions without first holding an evidentiary hearing. "The decision to hold an evidentiary hearing on a motion for a new trial is 'left largely to the sound discretion of the judge.' Only when the motion and affidavits raise a 'substantial issue' is an evidentiary hearing required." Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015) (citation and quotation omitted). "In determining whether a 'substantial issue' meriting an evidentiary hearing ... has been raised, we look not only at the seriousness of the issue asserted, but also to the adequacy of the defendant's showing on the issue raised." Ibid., quoting from Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981).

We see no abuse of discretion in the judge's conclusion that the defendant's motions did not make a showing of a "substantial issue" warranting a hearing. For essentially the reasons ably stated by the judge, we agree that the expert affidavit submitted by the defendant failed to identify a sufficient nexus between irregularities at the Hinton lab and the defendant's case to create a substantial issue suggesting justice may not have been done in this case.

In particular, the expert affidavit did not suggest that discredited chemist Annie Dookhan was in any way involved in the testing of the substances seized from the defendant. The affidavit suggested that chemist Stacy Feiden Desjardins, who was involved in such testing as a primary chemist, failed to correct or perhaps even notice an error made by another individual in processing drug evidence in another case several months prior to the testing Desjardins performed in this case. But the expert affidavit did not allege that Desjardins commonly made such errors in other cases, let alone in the defendant's own case. Finally, the expert affidavit alleged that Desjardins had forged the initials of the confirmatory chemist, Della Saunders, on the drug powder analysis forms in the defendant's case. But, as the judge noted, the expert who submitted the affidavit did not purport to have any expertise in handwriting analysis, as opposed to chemistry; moreover, Saunders testified at the defendant's trial that she had performed the confirmatory testing on substances provided by Desjardins in this case, and had determined that they contained cocaine.

We add two points. First, the defendant's new trial motions were weakened by his failure to attach affidavits from trial counsel or the defendant himself indicating how, if at all, the evidence of irregularities at the Hinton lab would have affected the trial strategy in this case. Second, at oral argument before us, the defendant noted that questions had been raised in other cases about the integrity of testing done by chemist Saunders. The defendant's new trial motions and expert affidavit, however, raised no questions about Saunders's conduct in his own case, and the Supreme Judicial Court has declined to speculate whether Saunders engaged in any improper conduct in performing her duties at the Hinton lab. See Commonwealth v. Escobar, 479 Mass. 1010, 1010-1011 (2018).

Judgments affirmed.

Order denying motion for new trial and amended motion for new trial affirmed.

      The defendant was found not guilty on the indictment alleging that this was a subsequent offense.

      Testing of the oxycodone was performed by other chemists.

      Trial counsel's closing argument focused on the claimed lack of evidence that the defendant was engaged in selling the fifteen rocks of crack cocaine and the oxycodone found in his apartment, as well as the possibility that they belonged to his former girl friend. Counsel conceded that the defendant was "guilty of possession of [the] eight rocks" of crack cocaine found in his sock.


text:
    Nyaitiyo COOK v. BOSTON CARMEN'S UNION, LOCAL 589.
    17-P-1271
    Appeals Court of Massachusetts.
    Entered: June 12, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, Nyaitiyo Cook, appeals from a Superior Court judgment dismissing her complaint against the defendant, Boston Carmen's Union, Local 589 (union). We affirm.

Background. The plaintiff's complaint arises from a July 2, 2007, arbitration agreement among Cook, the union, and the Massachusetts Bay Transportation Authority (MBTA), in which the MBTA agreed to pay a sum certain to the plaintiff for vacation pay. This sum was reduced by the amount she was required to contribute to the MBTA retirement fund in order to receive a disability retirement. Preceding the complaint at issue here, the plaintiff filed two complaints in the Superior Court against the MBTA, claiming that she had not received the full amount of her vacation pay. Both complaints were resolved in favor of the MBTA.

On December 14, 2015, the plaintiff then filed this complaint against the union claiming that it had failed to adequately represent her and therefore should be responsible for the payment. The motion judge allowed the union's motion to dismiss, holding that the two claims-one sounding in contract and one based on the duty of fair representation-were time-barred. ,

Discussion. The plaintiff's brief precludes our substantive review of her claims as it fails to support claims of error with sufficient legal argument, factual detail, or citation to legal authority or rules. An appellant's brief must set forth an argument which contains "the contentions of the appellant with respect to the issues presented," and must include "citations to the authorities, statutes, and parts of the record relied on." Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). This rule is more than a mere technicality, and requires an appellant to support her claim with citations to relevant authority. See G.R. v. Department of Developmental Serv., 84 Mass. App. Ct. 791, 806 (2014). Although the plaintiff is pro se, she is held to the same standards as litigants represented by counsel. See Rasheed v. Commonwealth, 440 Mass. 1027, 1027 (2003).

Even in the absence of these defects, it is clear that the plaintiff's claim must fail as both claims are time-barred. As to the contract claim, the plaintiff did not file the complaint within the six-year statute of limitations. See G. L. c. 260, § 2 (actions of contract shall be commenced within six years); Cameron Painting, Inc. v. University of Mass., 83 Mass. App. Ct. 345, 348-349 (2013). And, as to the claim that the union breached its duty of fair representation, the plaintiff failed to file a complaint with the Labor Relations Board within six months of the allegedly prohibited conduct. See 456 Code Mass. Regs. § 15.03 (1999) ; Blauvelt v. AFSCME Council 93, Local 1703, 74 Mass. App. Ct. 794, 801-03 (2009).

Judgment affirmed.

      The plaintiff was formerly employed by the MBTA, and now seeks to enforce this action against the union.

      The motion judge acknowledged that there was some ambiguity in the statute of limitations for the duty of fair representation claims as the Supreme Judicial Court in Graham v. Quincy Food Serv. Employees Assn. & Hosp., Library & Employees Union, 407 Mass. 601, 613 (1990), rejected the Federal six-month limitation period and applied a three-year statute of limitations. The plaintiff also failed to file within six months from the allegedly prohibited conduct with the appropriate department as required by 467 Code Mass. Regs. § 15.03 (1999). Thus, the motion judge determined that under either limitation period, the plaintiff's complaint was time-barred.

      As an additional grounds for dismissal, the motion judge found that the amount in controversy did not meet the Superior Court jurisdictional minimum of $25,000.


text:
    COMMONWEALTH v. Jerry THOMPSON.
    17-P-1351
    Appeals Court of Massachusetts.
    Entered: June 12, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Jerry Thompson, pleaded guilty to a criminal complaint charging him with indecent assault and battery on a person fourteen years of age or older, threating to commit a crime, and intimidation of a witness. At the plea colloquy, the judge failed to inform the defendant, as required by the rules of criminal procedure, that the conviction of indecent assault and battery could make him subject to adjudication as a sexually dangerous person (SDP). See Mass.R.Crim.P. 12(c)(3)(A)(ii)(b), as appearing in 470 Mass. 1501 (2015).

After the defendant had served the committed portion of his sentence, the Commonwealth did in fact initiate SDP proceedings. See G. L. c. 123A, § 12(b ). A Superior Court judge found probable cause and committed the defendant to the Massachusetts Treatment Center in Bridgewater for evaluation. See G. L. c. 123A, §§ 12(c ), 13(a ). The defendant was released approximately three and one-half months later, when the Commonwealth moved to dismiss its petition.

Almost one year later the defendant filed a motion to withdraw his guilty pleas, claiming that if he had been warned about the possibility of SDP commitment, he would not have pleaded guilty. He filed an affidavit to that effect in support of the motion, along with an affidavit of plea counsel, who professed no memory of whether he discussed the possibility of civil commitment with the defendant. After an evidentiary hearing at which the defendant testified, the plea judge denied the motion. The judge did not credit the affidavit or the testimony of the defendant, nor did he credit plea counsel's affidavit. "Considering the defendant's jail exposure and the strength of the Commonwealth's case," the judge found that the defendant had failed to demonstrate "that knowledge of the possibility of civil confinement would have materially affected his decision to plead guilty." This appeal followed.

As the judge noted, the defendant's burden is set forth in Commonwealth v. Roberts, 472 Mass. 355, 364-365 (2015) :

"[W]here a judge improperly neglects to inform a defendant of the possibility that his or her conviction could serve as a predicate for civil confinement as a sexually dangerous person, the defendant must demonstrate a reasonable probability that but for the judge's error he or she would not have pleaded guilty and would have insisted on proceeding to trial.... Although, at a minimum, the defendant must aver facts suggesting prejudice, the averment must be credible in the sense that the decision not to plead guilty would have been rational under the circumstances."

We do not consider the "rational under the circumstances" standard enunciated in Roberts, supra at 365, to be substantially different from the reasonable person standard described in Commonwealth v. Lavrinenko, 473 Mass. 42, 55 & n.16 (2015). Both require the defendant first to aver that the information he lacked would have materially affected his decision to plead guilty, see Roberts, supra; Lavrinenko, supra at 55, and both require that the defendant's claim in this regard must be objectively reasonable. See Roberts, supra; Lavrinenko, supra. In other words, a motion judge need not credit a defendant's fanciful claim that he would have chosen to go to trial if such a decision would not have been objectively reasonable in the circumstances at the time.

A judge's decision to deny a motion to withdraw a guilty plea is reviewed "only to determine whether there has been a significant error of law or other abuse of discretion." Lavrinenko, supra at 47, quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We discern no error of law or abuse of discretion. The defendant's averment that he would have gone to trial had he been told of the possibility of SDP proceedings was not credible in the sense that there is not "a reasonable probability that a reasonable person in his circumstances would have chosen to go to trial." Lavrinenko, supra at 56.

The judge's endorsement denying the motion properly noted the strength of the Commonwealth's case and the defendant's sentencing exposure had he gone to trial, two factors specifically mentioned in Roberts, supra. The judge also noted at the evidentiary hearing that the defendant "was represented by experienced criminal counsel," which is another Roberts consideration.

Finally, a judge may consider "the likelihood of civil confinement in light of any evidence relevant to the other elements of sexually dangerous person status." Ibid. At the hearing on the motion the judge observed that, at the time of the plea, "there [were not] any historic or prior convictions for sexually related offenses." Although there was some evidence at the time that the defendant might have had a personality disorder, there was no indication whatsoever he suffered from the type of disorder that "makes the person likely to engage in sexual offenses if not confined to a secure facility." G. L. c. 123A, § 1, as appearing in St. 1999, c. 74, § 6 (definition of SDP). Indeed, plea counsel argued exactly that in requesting a continuance without a finding ("[H]e doesn't have a history of sex offense; that's not his M.O., so to speak.... [H]e's not someone that's likely to sexually reoffend"). In short, a reasonable person in the defendant's circumstances would not have perceived the possibility of SDP commitment as a serious risk, and there was no reasonable probability that it would have been a decisive factor altering his decision to plead guilty.

Order denying motion to withdraw guilty pleas affirmed.

      When asked at the evidentiary hearing on the motion whether the possibility of SDP commitment would have been a factor in his decision to plead guilty, the defendant responded candidly that "at that moment, [he] was really thinking about getting the C[W]OF," which was the sentence that defense counsel recommended on the indecent assault and battery charge. When defense counsel attempted to focus the defendant on whether the risk of SDP commitment might have affected his decision, he responded, "Yeah. Definitely.... I wouldn't want to go back there again, never." This answer was based on knowledge that the defendant did not have at the time of the guilty pleas. "A judge may ... consider 'the timing of [the] request to vacate the plea,' ... [and] 'the force and plausibility of the proffered reason.' " Roberts, supra (citations omitted).

      In connection with the criminal complaint, the defendant was admitted to Bridgewater State Hospital for mental health evaluation under G. L. c. 123, § 18(a ). An evaluation performed there "noted that he has not exhibited features of serious mental illness in the jail setting, and instead manifests behavior patterns consistent with personality disorder."


text:
    COMMONWEALTH v. Jaime MORALES.
    17-P-229
    Appeals Court of Massachusetts.
    Entered: June 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant was convicted of indecent assault and battery on a person over the age of fourteen and intimidation of a witness. The charges stemmed from an incident that occurred on April 7, 2014, at the home of the victim, who is the defendant's former girl friend and the mother of his daughter. The victim testified that the defendant came to her apartment, forced her to engage in sexual intercourse, and then told her not to call the police or he would kill her and her children.

The defendant denied the allegations. In substantial part, the defense theory was that the victim was not credible and her accusations were fabricated. To that end, as defense counsel previewed in his opening statement, the defendant introduced evidence that approximately three years before the offense in question occurred, the defendant was charged with sexually assaulting the victim but the case was dismissed after the victim signed a written letter of recantation. On cross-examination, defense counsel asked the victim about the recantation, which she acknowledged. During the prosecutor's redirect examination, the victim explained that she had recanted under pressure from the defendant's family. The victim also testified to some details about the previous assault, including that the defendant had pulled her hair causing her to fall down the stairs while she was pregnant with the defendant's daughter.

The judge appropriately responded to the prior bad act evidence by instructing the jury when the testimony first was admitted during cross-examination, and again during the prosecutor's redirect examination, that the evidence could be considered for impeachment and understanding the relationship between the victim and the defendant, but for no other purpose. The instructions, to which there was no objection, tracked the Model Jury Instruction almost verbatim and adequately guarded against any potentially prejudicial effect. See Criminal Model Jury Instructions for Use in the District Courts, Instruction 3.760 (2009).

For the first time on appeal, the defendant argues that the judge's instructions were erroneous because they permitted the jury to consider the prior alleged sexual assault to demonstrate the relationship between the victim and the defendant, whereas the jury should have been permitted to consider only the fact that the victim recanted for the purpose of impeachment. This argument is unavailing, if only because the prior bad act evidence was properly introduced to show the relationship between the parties. See Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686 (2003). See also Commonwealth v. Seabrooks, 425 Mass. 507, 512 n.6 (1997) ; Commonwealth v. Bianchi, 435 Mass. 316, 322 (2001). Moreover, once the defendant solicited the testimony regarding the recantation, it was inevitable (and proper) that the recantation would be placed in context. See Commonwealth v. Mendes, 441 Mass. 459, 469 (2004) ("A witness may properly explain on redirect examination her testimony elicited on cross-examination"); Commonwealth v. Garcia, 470 Mass. 24, 37 (2014) (Commonwealth is entitled to rehabilitate its witness).

The defendant also argues that the judge should have given a limiting instruction regarding the prior bad act evidence during her final charge to the jury. However, the defendant neither asked for the instruction nor objected when it was omitted. "We therefore review to determine whether an error occurred and, if so, whether that error created a substantial risk of a miscarriage of justice." Commonwealth v. Arias, 84 Mass. App. Ct. 454, 464 (2013).

Here, even if we assume error, there was no substantial risk of a miscarriage of justice. The judge explicitly limited the jurors' use of the evidence twice during the victim's testimony, and her final instructions on the credibility of witnesses tracked the Model Jury Instructions. See Criminal Model Jury Instructions for Use in the District Courts, Instruction 2.260 (2009). Thus, considering the error in the context of the entire trial, we are confident that the defendant was not prejudiced. See Commonwealth v. Randolph, 438 Mass. 290, 298 (2002).

Judgments affirmed.

      Shortly after the defendant left the apartment, the victim went to the hospital where she reported the assault and was examined by a sexual assault nurse examiner (SANE). The SANE nurse, the police officer who interviewed the victim and arrested the defendant, and a forensic scientist testified for the Commonwealth. The scientist testified that she performed a deoxyribonucleic acid (DNA) analysis on a vaginal swab collected from the victim during her examination at the hospital. She explained that the DNA profile obtained from the swab matched a DNA sample acquired from the defendant.

      In his opening statement, defense counsel told the jury that "[o]ne of the things you're going to hear in this case is that when they broke up [the victim] lodged very similar accusations against Mr. Morales. And in the short [inaudible, low audio] gave the prosecutor in that case a sworn affidavit saying it never happened, he didn't do this to me, I want to drop the charges, I'm withdrawing my charges."


text:
    Michael SAXE v. BAYSTATE MEDICAL CENTER, INC.
    17-P-292
    Appeals Court of Massachusetts.
    Entered: June 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Baystate Medical Center, Inc. (hospital), appeals from the judgment entered in favor of the plaintiff, Michael Saxe, on his claim of retaliation under G. L. c. 151B, § 4(4), and from the order denying its motion requesting, alternatively, judgment notwithstanding the verdict (judgment n.o.v.), a new trial, or remittitur. The hospital argues that the evidence did not support the jury's answers to special questions regarding Saxe's retaliation claim, that the judge erred in certain evidentiary rulings, thus entitling the hospital to a new trial, and that there was error in the award of damages. The hospital also appeals from a postjudgment order awarding Saxe $130,352 in attorney's fees and costs. We affirm.

1. Judgment n.o.v. We review a request for judgment n.o.v. to see "whether, anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the [other party]." Bank v. Thermo Elemental Inc., 451 Mass. 638, 651 (2008), quoting from Masingill v. EMC Corp., 449 Mass. 532, 543 (2007). Here, the verdict must stand if Saxe offered any evidence from which the jury reasonably could have reached the verdict, disregarding evidence favorable to the hospital as the moving party. Smith v. Bell Atl., 63 Mass. App. Ct. 702, 711 (2005).

To prevail on his retaliation claim under G. L. c. 151B, § 4(4), Saxe was required to prove by a preponderance of the evidence that (1) he engaged in protected conduct, (2) an adverse employment action was taken against him, and (3) a causal connection existed between the protected conduct and the action taken. See Poon v. Massachusetts Inst. of Technology, 74 Mass. App. Ct. 185, 199-200 (2009). Saxe's theory of retaliation alleged that the hospital failed to take steps to promptly remediate known harassment against Saxe and that the hospital's adverse employment action was a result of Saxe criticizing the hospital's response to his harassment complaints.

Based on evidence presented at trial, the jury were entitled to credit Saxe's version of the events and decide the claim in his favor. See Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459, 467 (2003). Saxe provided evidence of a harassment prevention order, issued pursuant to G. L. c. 258E, that he obtained against a female coworker (coworker). Hospital policy mandated an investigation into the matter. Rather than conduct an independent investigation, a member of the hospital's investigating team regularly met with the coworker and made statements that could reasonably be interpreted as not impartial. Additional mishandling of Saxe's case by hospital management included failing to timely interview known witnesses, crediting the coworker over Saxe despite corroborative evidence favoring Saxe, and failing to properly review important documents. After Saxe complained about the impropriety of the hospital's investigation, the hospital suspended Saxe and ultimately terminated his employment.

The hospital argued that the only reason for Saxe's suspension and subsequent termination was that he failed to provide the full details surrounding the harassment prevention order he obtained against the coworker. However, the jury, after Saxe's cross-examination, were warranted in choosing to discredit the hospital's evidence and find retaliatory motive sufficient for judgment. See Kuwaiti Danish Computer Co., supra at 467. Accordingly, there was no error in the judge's denial of the hospital's request for judgment n.o.v.

2. Exclusion of prejudicial evidence. The hospital contends that the judge's exclusion of certain evidence was an abuse of discretion. Specifically, the hospital argues that the judge erred by excluding evidence of Saxe's relationship with the coworker's daughter and evidence that was race related, which the hospital sought to use for impeachment purposes. "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude 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), quoting from Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

The exclusion of this evidence did not constitute clear error. The hospital suggests that a line of questioning into Saxe's relationship with the coworker's minor daughter would have produced evidence to justify the hospital's nonpretextual reason for suspending Saxe. However, the judge admitted some evidence of Saxe's relationship with the daughter offered by both parties throughout the trial, including the coworker's own testimony that Saxe was a "father figure" to her daughter and that she had never witnessed "anything inappropriate[ ]" between Saxe and her daughter. Rather, the only evidence excluded was whether an improper relationship existed between Saxe and the coworker's daughter, which would have had the substantially prejudicial effect of confusing the jury. See Read v. Mt. Tom Ski Area, Inc., 37 Mass. App. Ct. 901, 902 (1994) (judge may exclude relevant evidence if there is danger of confusing jury). See also Mass. G. Evid. § 403 (2018). Even the hospital's counsel agreed that the characterization of Saxe's relationship with the coworker's daughter was "not an issue in the case." The judge did not abuse his discretion.

We also discern no abuse of discretion in the judge's decision to exclude the hospital's questions regarding race, when that information was minimally relevant to the issues at trial and highly prejudicial. During the hospital's cross-examination of Saxe, the hospital attempted to introduce comments allegedly made by Saxe to the coworker which suggested racial animus. The hospital's attorney admitted that the proffered comment was not a basis for the hospital's adverse employment action against Saxe, but was relevant to impeach Saxe's credibility as a prior inconsistent statement. We agree with the hospital that the evidence was potentially relevant to impeach Saxe's credibility; however, the judge was correct to carefully weigh the prejudicial effect of evidence that could greatly inflame a jury's emotions. See Commonwealth v. Bishop, 461 Mass. 586, 596 (2012), quoting from MCI Express, Inc. v. Ford Motor Co., 832 So. 2d 795, 800 (Fla. Dist. Ct. App. 2002) ("Ordinarily, racial slurs and ethnic epithets are so prejudicial as to render them inadmissible, unless the probative value outweighs any prejudice that may result from having the jury hear them"). Where, as here, the hospital intended to introduce the evidence for the purpose of impeachment, we conclude that the judge did not abuse his discretion in determining that the prejudicial effect substantially outweighed its relevance.

3. Exclusion of eleventh-hour evidence. The hospital contends that the judge abused his discretion in sanctioning the hospital for failing to supplement discovery pursuant to Mass.R.Civ.P. 26(e), 365 Mass. 772 (1974). See Grassi Design Group, Inc. v. Bank of America, N.A., 74 Mass. App. Ct. 456, 459-460 (2009). "Trial judges have broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial." Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 131 (2002) (quotation omitted). See Morgan v. Jozus, 67 Mass. App. Ct. 17, 24 (2006). Where a party fails to comply with discovery requests, the judge may impose just sanctions, including "refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence." Mass.R.Civ.P. 37(b)(2)(B), as amended, 390 Mass. 1208 (1984). Here, the judge excluded the hospital's impeachment evidence in the form of a note and a photograph never disclosed to Saxe until the hospital attempted to introduce them at trial, even though the hospital acquired the materials ten days earlier. We also recognize, as did the judge below, that this was the fourth time that the hospital failed to comply with its discovery obligations and still the judge allowed questioning of both Saxe and the coworker regarding contents of the note and photograph. See Mass. G. Evid. § 613(a)(4). In these circumstances, the sanction of excluding the materials, but permitting questioning about their contents was not an abuse of discretion. See Gos v. Brownstein, 403 Mass. 252, 257 (1988).

4. The judge's comments to hospital's counsel. The hospital further argues that any improper inference resulting from the judge's comments to the hospital's counsel in the presence of the jury was not cured by reinstruction during the jury charge. When interacting with the parties, "a judge need take no vow of silence. He is there to see that justice is done, or at least to see that the jury have a fair chance to do justice.... The judge ought not let the jury be diverted from the real issue." Commonwealth v. Haley, 363 Mass. 513, 519 (1973) (quotation omitted). Here, where the judge gave an instruction reminding the jury that he was neutral on the issues and his instructions, comments, and rulings were not to be considered facts of the case, there was no prejudicial error. See Commonwealth v. Holland, 476 Mass. 801, 816 (2017).

5. Remittitur. The judge did not abuse his discretion in denying the hospital's alternative request for remittitur in its postjudgment motion. An award of punitive damages under G. L. c. 151B is appropriate only where the defendant's conduct is "outrageous or egregious," warranting "punishment and not merely compensation." Haddad v. Wal-Mart Stores, Inc. (No. 1), 455 Mass. 91, 1107 (2009). Punitive damages require a "heightened finding beyond mere liability." Ibid. Here, the jury reasonably could have concluded that the biased nature of the hospital's investigation was "outrageous or egregious." Saxe presented evidence that the hospital did not penalize the coworker for the spread of harmful rumors about him, even after he notified supervisors. That behavior, in conjunction with other evidence adduced at trial, supports the award of punitive damages.

6. Attorney's fees. Finally, substantially for the reasons stated by the judge in his November 22, 2016, "Memorandum of Decision on Plaintiff's Application for Attorney's Fees and Costs," we affirm the order awarding fees and costs. See Berman v. Linnane, 434 Mass. 301, 302-303 (2001).

Saxe has also requested, and is entitled to, an award of "reasonable" appellate attorney's fees and costs pursuant to G. L. c. 151B, § 9. See Haddad v. Wal-Mart Stores, Inc. (No. 2), 455 Mass. 1024, 1024 (2010). Saxe shall, within fourteen days following the date of rescript, file with this court and serve on the defendant a motion for determination of the amount of attorney's fees and costs incurred on appeal, supported by an affidavit detailing such fees and costs, in accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The hospital may, within fourteen days thereafter, file with this court and serve on Saxe an opposition to the amounts so claimed.

Judgment affirmed.

Order denying motion for judgment n.o.v., or for new trial, or for remittitur affirmed.

Order allowing motion for attorney's fees and costs affirmed.

      The jury found in favor of the hospital on Saxe's gender discrimination claim pursuant to G. L. c. 151B, § 4(1).

      The jury awarded Saxe $6,850 in back pay, $50,000 in damages for emotional distress, and $200,000 in punitive damages.

      Between the final pretrial conference until after trial started, the hospital notified the court of three separate instances in which they failed to satisfy their obligation to supplement discovery pursuant to Mass.R.Civ.P. 26(e). On appeal, the hospital challenges only the exclusion of a note and photograph.

      For the reasons stated in the judge's order, there was also sufficient evidence to support the jury's award of $50,000 in damages for emotional distress. See Stonehill College v. Massachusetts Commn. Against Discrimination, 441 Mass. 549, 575-576 (2004).

      Saxe's request for double costs in connection with this appeal is denied.


text:
    COMMONWEALTH v. Richard GALIOTTE.
    17-P-786
    Appeals Court of Massachusetts.
    Entered: June 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury convicted the defendant of assault and battery by means of a dangerous weapon causing serious bodily injury, G. L. c. 265, § 15A(c )(i). On appeal, he claims evidence of the victim's gunshot wounds was insufficient to prove the victim sustained "serious bodily injury." We affirm.

Background. We summarize the relevant facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). In the early morning hours of November 1, 2013, the defendant fired a handgun at the victim several times. One round pierced the victim's abdomen. The victim was transported to the hospital and diagnosed with two gunshot wounds (abdomen and back) and anemia from blood loss.

During emergency surgery, doctors discovered a through-and-through laceration to the liver. The surgeon "packed" this wound to the liver. The victim was discharged from the hospital six days later. At the time of trial (just over two years after the shooting), the victim had scars at the locations of each gunshot wound.

Discussion. We review this evidence to determine whether "any rational trier of fact could have found [serious bodily injury] beyond a reasonable doubt." Commonwealth v. Scott, 464 Mass. 355, 360 (2013) (emphasis supplied), quoting from Latimore, supra at 677. There are "three distinct routes for establishing serious bodily injury. The Commonwealth may prove that a defendant caused bodily injury that resulted either in (1) a permanent disfigurement; (2) ... impairment of ... [an] organ; or (3) a substantial risk of death." Scott, supra at 357. Here, the judge instructed the jury on the first and second forms of serious bodily injury. Because the jury returned a general verdict, the parties agree that the evidence must have been sufficient to sustain a conviction under either theory. See Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008). For the reasons that follow, we conclude that it was.

1. Impairment of an organ. "An impairment of an organ ... occurs when damage to the structure of the organ is significant enough to compromise its ability to perform its function in the victim's body." Scott, supra at 359. The defendant claims that the victim's hospital records-the sole evidence of the damage to his liver-were insufficient to establish impairment of an organ without expert interpretation. See id. at 360-364. We disagree.

It is true that "[m]edical records containing technical terminology that require jurors to speculate on the meaning of key terms [are] insufficient, without more," to prove impairment of an organ. Id. at 364. Unlike in Scott, however, the records of the victim's injury in this case did not require expert interpretation. They included "information that was within the ordinary, common experience of a reasonable juror," ibid., from which a juror could reasonably infer the following: (1) a bullet had perforated the victim's liver, and in fact passed entirely through it; (2) as a result of this gunshot wound, the victim lost enough blood to induce anemia and necessitate emergency surgery; (3) the injury to the liver required direct medical intervention; and (4) the victim spent six days in the hospital after surgery. Viewing this evidence in the light most favorable to the Commonwealth, a reasonable juror could conclude that the bullet hole through the victim's liver compromised its function. See id. at 359.

2. Permanent disfigurement. At trial, the victim testified that he still had scars at the locations of the bullet wounds. The defendant argues that this testimony alone was not sufficient to prove permanent disfigurement. We disagree. "Disfigure" is commonly defined as "mak[ing something] less complete, perfect, or beautiful in appearance or character." Webster's Third New International Dictionary 649 (1993). When viewed in the light most favorable to the Commonwealth, the victim's testimony that he had visible scars on his torso over two years after he sustained the bullet wounds allowed a reasonable inference that he had been permanently disfigured beyond a reasonable doubt.

Judgment affirmed.

      The defendant was also found guilty of possession of a firearm with a defaced identification number while in the commission of a felony, G. L. c. 269, § 11B ; possession of a firearm without a firearm identification card, G. L. c. 269, § 10(h ) ; and witness intimidation, G. L. c. 268, § 13B. This appeal does not concern those convictions.

      Although Scott interprets the term "serious bodily injury" in the context of a different statute, G. L. c. 265, § 13A(b )(i), the term has a "substantially identical definition[ ]" here. Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. 162, 164 (2005).

      In Scott, supra at 363, medical records showed only an untreated "grade II" laceration of the liver after blunt force trauma, leaving the jury to speculate as to the cause of the injury and its severity. Here, where the evidence showed a bullet hole through the liver requiring emergency surgery to repair the organ, there was no need to speculate.


text:
    Robert BARCLAY v. Joseph D. EARLY, Jr.
    17-P-372
    Appeals Court of Massachusetts.
    Entered: June 18, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      In the earlier criminal case, Robert Barclay was known by the name Wayne R. Coonan.

   The plaintiff, Robert Barclay, appeals from the dismissal for want of prosecution of his civil lawsuit to compel the District Attorney for Worcester County to conduct deoxyribonucleic acid (DNA) testing that has already been rejected repeatedly in postconviction rulings in his criminal case. Concluding that the dismissal for want of prosecution without an opportunity to be heard several months after the District Attorney asked for a hearing to be rescheduled was an abuse of discretion, we reverse.

1. Background. In 1997, a Worcester County jury convicted the plaintiff of murder in the first degree. In 1999, the Supreme Judicial Court affirmed the conviction. Commonwealth v. Coonan, 428 Mass. 823 (1999). In 2009, a Superior Court judge denied the plaintiff's motion under Mass.R.Crim.P. 30(c)(4), as appearing in 435 Mass. 1501 (2001), to conduct DNA testing on boxer shorts seized from the defendant's apartment. See U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421, 425 n.8 (2014) ("We may take judicial notice of the court papers filed in related cases"). A single justice of the Supreme Judicial Court denied the defendant leave to appeal. See G. L. c. 278, § 33E. Thereafter, a Superior Court judge denied the defendant's motion under G. L. c. 278A, § 3, to conduct DNA testing of the duct tape used to bind the victim. In 2014, a different single justice of the Supreme Judicial Court denied the defendant leave to appeal.

In April, 2015, the plaintiff filed a complaint in Superior Court, essentially asking that the court order the District Attorney's office to conduct DNA testing on the boxer shorts. The District Attorney filed a comprehensive motion to dismiss under Mass.R.Civ.P. 12, as appearing in 470 Mass. 1501 (2015), and the plaintiff filed an opposition to that motion. The parties appeared for a hearing on October 7, 2015. Two days later, a judge (the referring judge) referred the criminal conviction to the Committee for Public Counsel Services "for purposes of evaluating whether [the plaintiff] has a reasonable basis for a new trial motion or for seeking post-trial DNA or other forensic testing." The referring judge deferred action on the pending motion to dismiss in the meantime.

In July, 2016, the court scheduled a hearing on the case for August 29, 2016. The District Attorney, explaining that his counsel would be on vacation that day, asked the court to reschedule the hearing. The court cancelled the hearing but did not reschedule it.

On January 9, 2017, without any warning to the parties, a different judge (the dismissing judge) endorsed the District Attorney's rule 12 motion, "DISMISSED for want of prosecution, without prejudice to plaintiff's right to seek a new criminal trial after review by CPCS, per the court's 10/9/15 referral." Two days later, the court entered a judgment stating, "[T]he plaintiff(s) having failed to appear for 10/07/2015 02:00 PM Rule 12 Hearing and prosecute, and upon consideration thereof, It is ORDERED AND ADJUDGED: That the complaint of the plaintiff(s), listed below is hereby dismissed, without prejudice."

The plaintiff promptly filed a motion to reconsider, pointing out that the plaintiff did appear on October 7, 2015, and that the case had been stayed pursuant to the referring judge's order. The dismissing judge denied the motion to reconsider.

2. Discussion. "The power to invoke [the sanction of dismissal for want of prosecution] is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars." Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986), quoting from Link v. Wabash R.R., 370 U.S. 626, 629-630 (1962). Even where, as here, no rule authorizes dismissal for want of prosecution, a court has the inherent power to dismiss for want of prosecution. Wilkinson v. Guarino, 19 Mass. App. Ct. 1021, 1022 n.4 (1985).

Nonetheless, "[i]nvoluntary dismissal is a drastic solution which should be utilized only in extreme situations." Dewing v. J.B. Driscoll Ins. Agency, 30 Mass. App. Ct. 467, 471 (1991), quoting from Monahan v. Washburn, 400 Mass. 126, 128 (1987). "As a minimal requirement, there must be convincing evidence of unreasonable conduct or delay. A judge should also give sufficient consideration to the prejudice that the movant [for dismissal] would incur if the motion were denied, and whether there are more suitable, alternative penalties." Monahan, supra at 128-129. We review a dismissal for want of prosecution for an abuse of discretion. Anderson v. Sport Lounge, Inc., 27 Mass. App. Ct. 1208, 1209 (1989).

Here, only a few months had passed since the District Attorney asked the court to reschedule the August, 2016, hearing, hardly a convincingly unreasonable delay. See Dewing, 30 Mass. App. Ct. at 471 (abuse of discretion to dismiss case where plaintiff waited over three years for trial to be scheduled without taking further action). The District Attorney can point to no prejudice to himself other than that "inherent with any passage of time." Any concern about delay could have been addressed by rescheduling the hearing, as had been requested.

Furthermore, the dismissal should not have occurred without any warning to the plaintiff or opportunity for the plaintiff to be heard. See Wilkinson, 19 Mass. App. Ct. at 1023 n.5 (raising, but not reaching, whether dismissal for want of prosecution without adequate notice deprives party of due process). Cf. Bucchiere, 396 Mass. at 640 (judge heard argument on motion to dismiss); Monahan, 400 Mass. at 128 (judge heard from counsel); Anderson, 27 Mass. App. Ct. at 1208-1209 (judge heard from counsel); Dewing, 30 Mass. App. Ct. at 469 (party filed written opposition to motion to dismiss). Without hearing from the plaintiff or giving the plaintiff an opportunity to be heard, the judge lacked the information necessary to support a dismissal for want of prosecution.

Judgment reversed.


text:
    William DINKINS v. Luis SPENCER & others.
    17-P-897
    Appeals Court of Massachusetts.
    Entered: June 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Thomas Tocci, Ronald Raymond, Bruce Gelb, Thomas Dickhaut, Osvaldo Vidal, and Carol Higgins O'Brien, all in their official and individual capacities.

   The plaintiff brought suit under 42 U.S.C. § 1983 (2012) against officials of the Department of Correction, alleging that they lost or destroyed his personal property. After the plaintiff moved for summary judgment, the defendants filed what they titled a "motion in opposition to summary judgment and motion for judgment on the pleadings." At a hearing on November 3, 2016, a Superior Court judge (first judge) denied the plaintiff's summary judgment motion, construed the defendants' motion for judgment on the pleadings as a motion to dismiss, and gave the plaintiff thirty days to respond. When the plaintiff failed to do so by late February of 2017, a second judge, acting on a motion by the defendants, dismissed the complaint under Mass.R.Civ.P. 41(b)(2), 365 Mass. 803 (1974), for failure to prosecute. This appeal by the plaintiff followed.

"The allowance or denial of a motion to dismiss for failure to prosecute is committed to the judge's sound discretion." Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986). The plaintiff here raises no argument that his failure to comply with the first judge's November 3, 2016, order was due to reasons beyond his control or otherwise excusable for good cause. Instead, he devotes most of his brief to arguing that he was entitled to a default judgment because the defendants did not answer the complaint within twenty days. But the filing of "any motion under [Mass.R.Civ.P.] 12 'stops the clock' on the 20-day responding period" pending a decision on the motion. Reporter's Notes to Rule 12, Massachusetts Rules of Court, Rules of Civil Procedure, at 21 (Thomson Reuters 2018). The plaintiff focuses on the defendants' failure to file an answer, while disregarding the fact that the first judge construed their motion for judgment on the pleadings as a motion to dismiss under rule 12. The first judge did not abuse her discretion in taking this action, as she postponed hearing on the motion and gave the plaintiff additional time to respond, ensuring that he would not be prejudiced. In turn, the second judge did not abuse her discretion in dismissing the complaint based on the plaintiff's failure to file a response within, and even well beyond, the time he was given.

The plaintiff also claims that his motion for summary judgment should have been allowed because there are no material facts in dispute. But he puts forth no cogent reasoning in support of his position, nor has he provided us with any of the evidentiary materials supporting his motion. "It is the obligation of the appellant[ ] to include in the appendix those [materials that] are essential for review of the issues raised on appeal...." Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992). Based on the record before us, we are unable to assess the plaintiff's claim.

Judgment affirmed.

      The defendants raised several dispositive defenses in this motion, including failure to exhaust administrative remedies, failure to state a viable due process claim, and qualified immunity.

      Although the plaintiff points out that the docket does not reflect any order requiring him to respond to the motion to dismiss within thirty days, he does not appear to dispute that the first judge orally issued such an order during the hearing on November 3, 2016. And to the extent the plaintiff is challenging the existence of the order, we are unable to consider his argument because he did not provide us with a transcript of the hearing. See Mass. R.A.P. 8(b), as amended, 430 Mass. 1601 (1999). We also note that the defendants repeatedly referenced the order in opposing the various motions for default that the plaintiff filed after the hearing. It is apparent that the first judge agreed with the defendants' representations that she issued the order, as she denied at least two of the plaintiff's motions "for the reasons set forth" in the oppositions.


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    COMMONWEALTH v. Joshua LOPEZ.
    17-P-1017
    Appeals Court of Massachusetts.
    Entered: June 11, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from an order revoking his probation and sentencing him to seven to nine years for the crime of armed assault with intent to murder. On appeal, he claims primarily that he received inadequate notice of his final probation revocation hearing. Because the record establishes that the defendant received adequate notice, we affirm.

1. Background. In 2008, the defendant shot a man twice in the chest during an altercation at a baby shower. In 2009, the defendant pleaded guilty to multiple counts, including armed assault with intent to murder, in violation of G. L. c. 265, § 18(b ), assault and battery by means of a dangerous weapon causing serious bodily injury, in violation of G. L. c. 265, 15A(b ), and various firearms charges. Relevant here, the defendant was sentenced to four to six years in prison on the assault and battery by means of a dangerous weapon charge, and from one to three years of probation, from and after, on the armed assault with intent to murder charge.

In May, 2015, after serving his prison sentence and while on probation, the defendant was arrested by the Springfield police for a variety of firearms offenses, following a traffic stop. Thereafter, a final probation violation hearing was scheduled for June 30, 2016. The defendant appeared on that date, with counsel. After an evidentiary hearing the judge found that the defendant had violated his probation by virtue of his alleged firearms offenses, and subsequently sentenced the defendant to seven to nine years in prison for armed assault with intent to murder. The defendant timely appeals.

2. Discussion. The defendant first argues that his due process rights were violated because he did not receive adequate notice of the June 30, 2016, final revocation hearing. His argument focuses on the purported evidence of notice that the Commonwealth adduced at the June 30th hearing, which the Commonwealth presented through the testimony of a probation officer, who testified as keeper of records. The defendant challenges both the foundation for, and the sufficiency of, the Commonwealth's notice evidence.

Since the defendant's liberty was at stake at the probation revocation hearing, he had a constitutional right to receive adequate notice of that hearing. See Commonwealth v. Durling, 407 Mass. 108, 112-113 (1990) ; Commonwealth v. Hartfield, 474 Mass. 474, 479 (2016). Here the judge found that the defendant received such notice. There was no error, as the record demonstrates that the defendant (as well as his counsel) received actual notice of the final revocation hearing, during an earlier court hearing on April 28, 2016. On that date the defendant and his counsel appeared in court for a previously scheduled final revocation hearing, and the defendant's counsel requested a continuance. It is evident from the transcript that the defendant and his counsel knew that the basis for revocation was the new criminal charges. The judge continued the final revocation hearing to June 30, 2016; the judge specifically advised both the defendant and his counsel, on the record, of that date for a "final hearing."

Such actual notice satisfies the constitutional notice requirement. See Fay v. Commonwealth, 379 Mass. 498, 502-503 (1980). See generally Commonwealth v. Delaney, 425 Mass. 587, 592-593 (1997), cert. denied, Delaney v. Massachusetts, 522 U.S. 1058 (1998). Indeed, both the defendant and his counsel appeared at the hearing on June 30, 2016. The transcript of the June 30 hearing does not reflect any objection by the defendant to going forward with a final revocation hearing on that date, nor does the record reflect that counsel was unprepared or misunderstood the nature of the hearing.

The defendant also argues that the judgment must be reversed because the judge applied the wrong standard-probable cause rather than preponderance of the evidence-in finding a probation violation. The defendant's argument rests entirely on two statements made by defense counsel, not the judge, during defense counsel's final argument at the hearing. The argument is without merit. The judge is presumed to apply the correct standard. See Commonwealth v. Healy, 452 Mass. 510, 514 (2008), quoting from Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 75 (2005) ("Judges in jury-waived trials are presumed to know and correctly apply the law"). While this presumption can be overcome by a showing of statements by the judge, here the defendant does not rely on any statements or rulings by the judge. See Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002). Moreover, the judge's findings are entirely consistent with the preponderance standard; the findings in no way suggest the application of a lesser burden.

Order revoking probation affirmed.

      Carrying a firearm without a license, in violation of G. L. c. 269, § 10(a ), and possession of ammunition without an FID card, in violation of G. L. c. 269, § 10(h ).

      For this reason we need not address the sufficiency of the evidence adduced from the probation officer who testified as a keeper of the records.

      After the defendant was advised of the final revocation hearing in court on April 28, 2016, a notice was mailed to him at the "Ludlow HOC," which mistakenly identified the June 30, 2016, date for an "Initial Violation Hearing." Given the clarity of the notice given in court on April 28, the written letter does not affect our analysis. See Commonwealth v. Morse, 50 Mass. App. Ct. 582, 588-589 (2000) (though notice of preliminary or final probation revocation proceeding unclear, no confusion that hearing when held was final hearing).


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    COMMONWEALTH v. Lesley JURCZUK.
    16-P-1069
    Appeals Court of Massachusetts.
    Entered: June 11, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial, the defendant, Lesley Jurczuk, who had been indicted for murder in the second degree, was convicted of the lesser included offense of voluntary manslaughter. On appeal, he claims error in the order denying his motion to dismiss his indictment, improper conduct by the prosecutor, and error in jury instructions. We affirm.

1. Motion to dismiss. Prior to trial, the defendant moved to dismiss the indictment on several grounds, and he renews most of his contentions on appeal. Specifically, he argues that the evidence before the grand jury was insufficient to demonstrate probable cause, and that the integrity of the grand jury was impaired by the Commonwealth's misleading and unfair presentation of the evidence. We discern no error warranting dismissal of the indictment.

a. Sufficiency of evidence. When reviewing a motion to dismiss based on the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Levesque, 436 Mass. 443, 444 (2002). The sole issue that we confront is whether the grand jury heard "sufficient evidence to establish the identity of the accused ... and probable cause to arrest him." Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). In this context, probable cause requires "reasonably trustworthy information ... sufficient to warrant a prudent [person] in believing that the defendant had committed ... an offense." Commonwealth v. O'Dell, 392 Mass. 445, 450 (1984), quoting from Commonwealth v. Stevens, 362 Mass. 24, 26 (1972).

The grand jury indicted the defendant on a charge of murder in the second degree. To survive a motion to dismiss, the Commonwealth was required to present the grand jury with evidence showing probable cause for each of the two elements of the offense, that (1) the defendant committed an unlawful killing; and (2) the defendant did so with malice. See Commonwealth v. Earle, 458 Mass. 341, 346 (2010). Malice can be established by proving any of three prongs: "(1) the defendant intended to cause the victim's death; (2) the defendant intended to cause grievous bodily harm to the victim; or (3) the defendant committed an intentional act which, in the circumstances known to the defendant, a reasonable person would have understood created a plain and strong likelihood of death." Ibid.

The defendant argues that there was sufficient proof of a death, but insufficient proof of either element of the offense. The motion judge found, and the grand jury heard evidence as follows:

"[The defendant] and the victim fought while alone in their cell; immediately thereafter their third cellmate saw that the victim appeared to have been severely beaten; a short time later correction officers found the victim lying unconscious with a swollen and bloodied face on the floor of the cell; the victim died of blunt trauma to the head and neck that he suffered during this beating; and [the defendant] demonstrated consciousness of guilt by trying to dispose of the bloodstained T-shirt he was wearing and washing himself clean."

Based on the evidence presented to it, the grand jury reasonably could have found that the defendant had beaten and killed his cellmate. See Commonwealth v. Nadworny, 396 Mass. 342, 357 (1985) (defendant was only person present when victim died). See also Commonwealth v. Conkey, 443 Mass. 60, 74 (2004) (consciousness of guilt evidence "may be considered along with all other evidence" to evaluate sufficiency).

From the evidence regarding the extent of the victim's injuries and the apparent attempt by the defendant to clean himself of the victim's blood, there was probable cause to believe that the defendant had the requisite intent to support an indictment for murder in the second degree. See Nadworny, supra at 358 ("The intent to inflict an injury may be inferred from, among other things, the condition of the body and the disposal of evidence").

b. Impairment of the grand jury proceedings. A "defendant bears a heavy burden to show impairment of the grand jury proceeding." Commonwealth v. LaVelle, 414 Mass. 146, 150 (1993). A motion to dismiss on this ground may be allowed only on a showing that "(1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jury's decision to indict." Commonwealth v. Silva, 455 Mass. 503, 509 (2009).

The defendant contends that the Commonwealth led the grand jury to believe there was evidence of strangulation through Detective Benton's testimony that the victim's hyoid bone fracture was the kind of injury often seen in strangulation cases. Yet, the defendant has not shown that the detective's testimony was either false or misleading. The grand jury reasonably would have understood Detective Benton's testimony to be contrasting the injuries in this case from those found in strangulation cases. As the motion judge found, "[t]he clear import of Detective Benton's testimony was to emphasize Dr. Cummings' conclusions that the victim had been hit multiple times with great force." In any event, we agree with the motion judge that, given the strength of the other evidence introduced, Detective Benton's off-hand comment regarding injuries in strangulation cases made no difference in the grand jury's decision to indict.

2. Prosecutorial misconduct. The defendant maintains that he was so prejudiced by the prosecutor's improper appeal to the jury's sympathy in his opening statement, in his closing argument, and in the introduction of improper evidence, that a new trial is required. The defendant mainly takes issue with the "death sentence" rhetoric used by the prosecutor during his opening and closing remarks, asserting that said rhetoric overstepped the bounds of zealous advocacy and appealed excessively to the jury's sympathy. We disagree.

Contrary to the defendant's contention, the prosecutor's statements were fair inferences drawn from the evidence or, at worst, merely amounted to "excusable hyperbole." Commonwealth v. Camacho, 472 Mass. 587, 607 (2015) (quotation omitted). See Commonwealth v. Johnson, 429 Mass. 745, 749 (1999), quoting from Commonwealth v. Sanchez, 405 Mass. 369, 376 (1989) ("To the degree the recitation of the evidence was inflammatory, that was inherent in the odious ... nature of the crime[ ] committed").

Furthermore, there was no prejudicial error as a result of the prosecutor's statements. "Remarks made during [opening and] closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). The trial judge provided a detailed instruction that closing statements are not evidence prior to closing arguments, and even reiterated the instruction after closing arguments. "The jury have the ability to discount hyperbole and other improper statements, ... and trial judge's instructions are generally adequate [to] cure errors in the arguments." Camacho, supra at 609, quoting from Commonwealth v. Santiago, 425 Mass. 491, 495 (1997). We presume that the jury followed the judge's instructions. See Commonwealth v. Maynard, 436 Mass. 558, 571 (2002).

Similarly missing its mark is the defendant's claim that the prosecutor improperly appealed to sympathy for the victim when he examined his very first witness, the victim's mother, and elicited the amount of time her son had remaining on his sentence. The Commonwealth may properly "tell the jury something of the person whose life [has] been lost in order to humanize the proceedings." Commonwealth v. Degro, 432 Mass. 319, 323 (2000), quoting from Santiago, supra. Indeed, only repeated references and emphasis on a victim's character and personal characteristics risks undermining the rationality and integrity of a jury's verdict. Cf. Santiago, supra at 492-495 (prosecutor's unnecessary repletion of victim's age and pregnancy suggested jury should consider these facts in deliberations).

3. Instruction under wanton and reckless theory of involuntary manslaughter. The defendant's next argument, that the judge erred by not giving his requested instruction on the wanton and reckless theory of involuntary manslaughter as a lesser included offense of murder, is similarly unavailing. "Involuntary manslaughter is an unintentional killing 'resulting from wanton and reckless conduct ... [or] ... a battery not amounting to a felony which the defendant knew or should have known endangered human life.' " Commonwealth v. Tague, 434 Mass. 510, 518 (2001), quoting from Commonwealth v. Pierce, 419 Mass. 28, 33 (1994).

The defendant argues that he was entitled to an instruction on involuntary manslaughter on the theory that he engaged in "a physical struggle within the confines of the small concrete and cement cell in a manner resulting in fatal blunt force trauma" to the victim. This theory does not describe wanton and reckless conduct, but rather, a battery, which the defendant should have known endangered human life. The judge did instruct on the battery theory of involuntary manslaughter, referring to it as "battery manslaughter." There was no error.

Judgment affirmed.

      "[A]utopsy revealed that the victim had suffered significant contusions around the head, face, and neck; a subdural hematoma, i.e. bleeding on the brain ; a fracture to the tracheal cartilage, i.e. the Adam's apple; and a fracture of the hyoid bone in the neck." In addition, the physician who conducted the autopsy testified that at least forty pounds of pressure would have been needed to cause the injury the victim sustained to his tracheal cartilage, and that he had only seen such severe injuries "caused by high velocity collisions like car accidents."

      The defendant also claims the integrity of the grand jury was impaired because the Commonwealth "unfairly injected impermissible testimony into the grand jury proceedings in an apparent effort to depict the defendant as being the kind of person who would commit an act of murderous violence." However, the defendant failed to include this claim in his motion to dismiss and raises it for the first time on appeal. We therefore review this claim only to determine whether there has been a substantial risk of a miscarriage of justice. See Commonwealth v. Ali, 43 Mass. App. Ct. 549, 556 (1997). We disagree with the defendant's characterization of the grand jury proceedings, and discern no such risk.

      To the extent the defendant claims that the trial judge erred by not striking "improper evidence" introduced by the prosecutor, this argument was largely relegated to a footnote, is unsupported by citation to authority, and does not rise to the level of appellate argument. See Commonwealth v. Gordon, 407 Mass. 340, 350 (1990) (claim of error in judge's denial of motion for mistrial unsupported by citation to legal authority was insufficient appellate argument).