text:
    COMMONWEALTH v. Kyle G. THOMAS.
    16-P-1564
    Appeals Court of Massachusetts.
    Entered: May 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was convicted after a jury trial of assault and battery in violation of a G. L. c. 209A abuse prevention order (209A order), violation of a 209A order, and operating under the influence of intoxicating liquor, second offense. The convictions arose out of an incident during which the defendant forced the victim (his former girl friend) into his car, strangled her by holding her neck against the headrest, and hit her in the face when she tried to escape. At the time the victim had an active 209A order against the defendant.

On appeal the defendant argues that his conviction of violating the 209A order cannot stand because the trial judge should have sua sponte instructed the jury on the affirmative defense of honest but mistaken belief. According to the defendant, he was entitled to the instruction because the victim proactively reached out to him, leading him to believe he "was free to engage in contact with [her]." But even assuming that honest but mistaken belief is a defense to a 209A violation, the evidence does not support a finding that the defendant honestly believed he had the right to contact the victim. See Commonwealth v. St. Hilaire, 470 Mass. 338, 348 (2015), quoting from Commonwealth v. Liebenow, 470 Mass. 151, 156 (2014) (to raise defense of honest but mistaken belief in larceny case, defendant has burden of production, which is met " 'if any view of the evidence' would support a factual finding that the defendant honestly believed he or she had a legal right to take property"). The no-contact provision of the 209A order prohibited the defendant from contacting the victim "even if [she] seems to allow or request contact." Given this clear and unambiguous language, the judge had no obligation to give an honest mistaken belief instruction sua sponte, and the absence of such an instruction did not create a substantial risk of a miscarriage of justice.

The defendant's only other argument is that the judge should have allowed him to pursue a jury nullification defense. This argument is squarely foreclosed by Supreme Judicial Court precedent. See, e.g., Commonwealth v. Kirwan, 448 Mass. 304, 319 (2007).

Judgments affirmed.

      The defendant pleaded guilty to the second offense portion of the charge.

      For the same reason, we reject the defendant's claim that trial counsel was ineffective for not requesting the instruction.


source: Caselaw Access Project

license: Public Domain

text:
    BOARD OF SELECTMEN OF WEST BRIDGEWATER v. ATTORNEY GENERAL.
    17-P-84
    Appeals Court of Massachusetts.
    Entered: May 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   At issue in this case is whether the board of selectmen of West Bridgewater (board) violated the open meeting law, G. L. c. 30A, §§ 18 - 25, when it discussed the professional competence of nonunion municipal employees in executive sessions without first discussing those matters in open session as required under District Attorney for the N. Dist. v. School Comm. of Wayland, 455 Mass. 561 (2009) (Wayland ). Acting on a complaint filed by a private citizen, the Attorney General concluded that the board had violated the open meeting law on three occasions. The board then commenced this action pursuant to G. L. c. 30A, § 23(d ), seeking certiorari review under G. L. c. 249, § 4. On cross motions for judgment on the pleadings, a judge of the Superior Court dismissed the board's complaint and affirmed the decision of the Attorney General. The board has appealed from that judgment.

Background. The following facts are taken from the administrative record. The three executive session discussions that are the subject of this appeal occurred on January 14, 2015, March 4, 2015, and April 1, 2015. During each of these executive sessions, the board discussed the professional competence of nonunion municipal employees in connection with negotiating the employees' contracts. There is no dispute that the board did not conduct annual performance evaluations or otherwise discuss the employees' professional competence in open sessions prior to the three executive sessions in question.

On January 14, 2015, the board met with the police chief to discuss renewing his contract. The minutes from that meeting state that the board convened an executive session "[p]ursuant to MGL Chapter 30A, Section 21(a) Exception 2 to conduct contract negotiations with non union personnel." Prior to the session, the board had sent a letter to the chief describing "actions and changes that would help improve the Police Department and that would serve as a measure of renewing" his contract. During the session, the board asked the chief to discuss his progress and the steps he had taken to improve the department. The board finalized its negotiations with the chief during two subsequent executive sessions held on March 4, 2015, and April 16, 2015.

On March 4, 2015, and April 1, 2015, the board met with various other nonunion employees during executive sessions. Like the session held on January 14, the minutes indicate that these two sessions were convened "[p]ursuant to MGL Chapter 30A, Section 21(a) Exception 2 to conduct contract negotiations with non-union personnel." On March 4, the board met with the town accountant, the elder services director, the police chief, and the forestry and parks superintendent. On April 1, the board met with the highway and vehicle maintenance superintendent, the assistant vehicle maintenance superintendent, and a police lieutenant. Each employee was asked a series of questions about their positions. The board asked the employees to describe their work schedules and the manner in which they accrue compensatory time. The employees were also asked to provide an overview of their departments and to highlight their projects, accomplishments, and challenges. The board then deliberated on what it describes as "contract presentations" by the employees and voted to increase their salaries. The employment contracts were executed in open session on June 17, 2015, after the annual town budget had been approved.

On August 21, 2015, a town resident filed a complaint with the Attorney General alleging that the board's discussion in executive session of nonunion employees' professional competence violated the open meeting law. The Attorney General opened an investigation and found that, in the context of the negotiations, the board solicited "contract presentations" in which it identified performance issues for certain employees and asked them to respond to those areas of concern. The Attorney General concluded that violations had occurred on January 14, 2015, March 4, 2015, and April 1, 2015. Relying on Wayland, the Attorney General determined that the board's characterization of the discussions as "contract presentations" "did not transform the[m] ... into something other than a performance review." The Attorney General then ordered the board to comply with the open meeting law in the future and to review a training video on executive sessions.

In bringing this action, the board asserts that it properly discussed the employees' professional competence in executive session because the sessions were conducted pursuant to G. L. c. 30A, § 21(a )(2) ( § 21 [a ][2] ), in connection with contract negotiations. Because § 21(a )(2) does not explicitly require that professional competence be discussed in open session, contrast G. L. c. 30A, § 21(a )(1) ( § 21 [a ][1] ), the board argued that the Attorney General erred in determining that it had violated the open meeting law. A judge of the Superior Court rejected the board's argument that professional competence must be discussed in open session only where an executive session is called pursuant to § 21(a )(1), and held that the board's interpretation of G. L. c. 30A, § 21(a ), is inconsistent with the holding in Wayland. The judge deferred to the Attorney General's finding that the board effectively conducted performance evaluations of nonunion employees during executive sessions without first discussing professional competence in an open session, and he concluded that the Attorney General did not err.

Discussion. "Our function in reviewing an appeal of a decision in a certiorari proceeding is a limited one." Durbin v. Board of Selectmen of Kingston, 62 Mass. App. Ct. 1, 5 (2004). We review the administrative record only to determine (1) whether the Superior Court judge correctly ruled that the Attorney General committed no error of law that adversely affected the board's legal rights, and (2) whether the Attorney General's determination that the board violated the open meeting law is supported by substantial evidence. Id. at 6.

As previously noted, in affirming the decision of the Attorney General, the judge concluded that the board had violated the open meeting law because it did not first discuss professional competence in an open session as required under Wayland. In Wayland, 455 Mass. at 569-570, the school committee exchanged private electronic mail messages concerning a draft performance evaluation of the superintendent. It then discussed the draft evaluation in two executive sessions. Id. at 566-567. The Supreme Judicial Court held that this process "violated the letter and spirit of the open meeting law." Id. at 570. As the Attorney General notes in her brief, the Supreme Judicial Court established a bright-line rule in Wayland. If a public body like the board intends to discuss an employee's professional competence-even for purposes of contract negotiations under § 21(a )(2) -it must first conduct performance evaluations or otherwise discuss that competence in an open session. See id. at 568. Thereafter, the board may convene an executive session to determine how such evaluations of the employee will be used in the negotiations. Ibid.

Here, there is no dispute that the board failed to conduct performance evaluations or to publicly discuss the professional competence of the various employees in question. As a result, we, like the judge, conclude that the Attorney General correctly determined that the board violated the open meeting law. See G. L. c. 30A, § 23(a ), inserted by St. 2009, c. 28, § 18 ("[T]he attorney general shall interpret and enforce the open meeting law"); G. L. c. 30A, § 25(b ), inserted by St. 2009, c. 28, § 18 ("The attorney general shall have the authority to interpret the open meeting law and to issue written letter rulings"). See also Boelter v. Board of Selectmen of Wayland, 479 Mass. 233, 242 (2018) (Attorney General's interpretation of open meeting law "is entitled to substantial deference, unless it is inconsistent with the plain language of the statute").

We also agree with the judge that the board's attempt to distinguish its conduct from that at issue in Wayland is not persuasive; the board interprets Wayland too narrowly. It matters not that the school committee in Wayland did not discuss negotiations or strategy in its executive sessions. The point the Supreme Judicial Court made in Wayland is that any discussion of professional competence must first take place in an open session. See Wayland, supra at 568 ("While professional competence must first be discussed in an open session, how that evaluation will factor into a contract or salary negotiation strategy may be suitable discussion for an executive session" [emphasis supplied] ); ibid. ("While a school committee's deliberation of the superintendent's professional competence must take place in an open session, written performance evaluations, whether draft or final, are not a public record, and are not required to be made available to the public" [emphasis supplied] ); id. at 572 n.8 ("If, however, the school committee had met as required by law in an open meeting to discuss the superintendent's professional competence, it then could have moved into a proper executive session to draft the evaluation" [emphasis supplied] ).

The board is correct that the open meeting law was amended significantly after the Supreme Judicial Court decided Wayland. However, those amendments did not materially change the portions of the law upon which Wayland is based. To the contrary, the amendments "broadened the open meeting law's definition of 'deliberation' " and clarified the manner in which public bodies may conduct performance evaluations. Boelter v. Board of Selectmen of Wayland, supra at 241. Nothing in the amendments to the open meeting law changes the Supreme Judicial Court's consistent interpretation that "[t]he open meeting law was intended to ensure that the public is able to see for themselves how [decisions to award contract extensions or raises] are made," id. at 243, in that the Supreme Judicial Court continues to interpret the open meeting law to require that professional competence first be discussed in an open session. See id. at 242-243 (distribution of board members' opinions regarding town administrator's performance "to the quorum, prior to the [open] meeting, was ... a violation of the open meeting law").

Conclusion. We reject the board's argument that the Attorney General committed legal error in determining that the board violated the open meeting law, and we affirm the judgment of the Superior Court.

So ordered.

Affirmed

      On November 19, 2014, and February 4, 2015, the board discussed whether to conduct performance evaluations for nonunion employees and, if so, how those evaluations would be used to determine salary increases. However, no performance evaluations were conducted.

      On March 4, 2015, the town accountant presented "documentation chronicling her accomplishments," "discussed her increase in duties," and requested a salary increase. The elder services director discussed her accomplishments and also requested a salary increase. The forestry and parks superintendent "discussed his daily meetings with his employees and his time spent working on grants and facilitating summer concert sponsorships," and requested a salary increase. Similar discussions were conducted on April 1, 2015, with the highway and vehicle maintenance superintendent, the assistant vehicle maintenance superintendent, and the police lieutenant.

      On January 6, 2016, the members of the board returned certificates of compliance showing that they had reviewed the video.

      In pertinent part, § 21(a )(1), as appearing in St. 2009, c. 28, § 18, provides that a public body may convene in an "executive session" that is closed to the public in order to "discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual" (emphasis supplied). Pursuant to § 21(a )(2), as appearing in St. 2009, c. 28, § 18, a public body may convene an executive session in order to "conduct ... contract negotiations with nonunion personnel."


text:
    COMMONWEALTH v. Jamal W. EVANS.
    17-P-1196
    Appeals Court of Massachusetts.
    Entered: May 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury convicted the defendant of mayhem, assault and battery causing serious bodily injury (AB-SBI), and intimidation of a witness. The convictions were based on evidence that-while exclaiming "Die, you bitch"-the defendant threw his girl friend over a porch railing, causing her severe, permanent injuries. The defendant was sentenced to prison terms of ten to fifteen years for mayhem, four to five years for AB-SBI, and six to ten years for witness intimidation. The sentences were to be served concurrently with each other (and with a sentence that the defendant already was serving). The defendant filed a motion for new trial, which was denied. In the defendant's consolidated appeal, a panel of this court, in a memorandum and order pursuant to our rule 1:28 (memorandum and order), reversed the judgment as to the AB-SBI charge as duplicative of the judgment as to the mayhem charge, but otherwise affirmed the remaining judgments. Commonwealth v. Evans, 87 Mass. App. Ct. 1114 (2015). Before us now is the defendant's appeal of the denial of his "Motion To Correct Illegal Sentence (30(a) )," which he filed pro se pursuant to Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001). We affirm.

We begin by noting that none of the remaining sentences here exceeded the statutory maximum for the respective offense, or were "in some [other] way contrary to the applicable statute[s]." Commonwealth v. Walters, 479 Mass. 277, 280 (2018), quoting from Commonwealth v. Layne, 21 Mass. App. Ct. 17, 19 (1985). Nor has the defendant demonstrated that the remaining sentences, individually or collectively, were "premised on a major misunderstanding by the sentencing judge as to the legal bounds of his authority." Walters, supra, quoting from Commonwealth v. McGuinness, 421 Mass. 472, 475 (1995). Hence, there is no "illegal" sentence here. Walters, supra.

The gist of the defendant's argument is that the reversal of his conviction for AB-SBI entitles him to be resentenced on the remaining convictions (not just to have his sentence for the AB-SBI conviction vacated). See Commonwealth v. Leggett, 82 Mass. App. Ct. 730, 735 (2012), abrogated on other grounds by Commonwealth v. Sallop, 472 Mass. 568, 570 n.5 (2015) (where appellate court reverses one or more convictions forming integrated sentencing package, case should be remanded for reconsideration of entire sentencing structure). The flaw in this argument is that the individual sentences were not part of an integrated sentencing package but stand or fall on their own. We agree with the judge who denied the motion that our reversing the AB-SBI conviction "presents no cause for re-sentencing on the remaining convictions for which concurrent sentences were imposed." We additionally note that the motion judge was also the trial judge, and therefore would have been the judge called upon to conduct any resentencing if that were appropriate. There is no reason to believe that this judge would change the sentence that he imposed on the mayhem or witness intimidation convictions if he were asked to reconsider it.

Consistent with its title, the defendant's motion to correct illegal sentence was confined to the sentencing issue. Nevertheless, the defendant inserted an unrelated, additional argument in the separate document that effectively served as the memorandum he filed in support of his motion. Specifically, the defendant claimed that the Commonwealth's key witness-the victim of the attack-left the trial (and jurisdiction) without authority even though his trial counsel had additional questions to ask her. We turn now to that argument.

Passing over the fact that this argument could not properly be the subject of a motion filed pursuant to Mass.R.Crim.P. 30(a), we discern no merit in it. The trial record reveals that the victim in fact properly was excused after both the prosecutor and defense counsel indicated that they had no further questions. To be sure, the following day, the defendant expressed interest in recalling the victim to ask her additional questions about a three-week old posting on the social networking Web site known as Facebook (Facebook post) that the defendant's brother had discovered. The Facebook post stated: "Riding a wave. I learned to surf, me and my son." To the extent that this post indicated that the victim herself had been surfing, it arguably might have provided some support for the defendant's contention that she was not as physically impaired as she claimed. The prosecutor downplayed the import of the post, suggesting that it referred only to the victim having brought her son surfing (rather than having surfed herself). The prosecutor also argued that, in any event, the post was not inconsistent with the victim's testimony that she had "good days and bad days." While the judge stated that he did not view the defendant's new assertion as being "of the greatest magnitude," he nevertheless indicated his openness to allowing the defendant to recall the witness if she were still available. He therefore instructed the prosecutor to determine if the victim were still available, while cautioning the defendant that the Facebook post would not be admitted if she were not.

After a recess, the prosecutor reported back that he was unable to reach the victim despite calling her cellular telephone, her parents in California, and another telephone number in the Commonwealth associated with her. After a brief discussion about the matter, in which both sides reasserted their views on the import of the Facebook post, the judge indicated that he was unwilling to hold up trial further on this issue. At that point, the defendant let the matter drop. Thus, he did not object to the judge's disposition, nor did he raise the issue in his motion for a new trial or his consolidated appeal. Our review is therefore limited at most to whether any errors caused a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 850 (2010).

Under the circumstances, we discern no abuse of discretion in the judge's unwillingness to hold up the trial so that additional efforts could be made to allow the properly excused witness to be recalled. See Commonwealth v. Forte, 469 Mass. 469, 488 (2014) (appellate review of trial judge's decision whether to recall witness is for abuse of discretion). In this regard, we note that the medical records themselves established the extent of the extraordinary injuries that the victim suffered as a result of her fall, and the defendant already had used cross-examination to explore at length his contention that the victim was malingering. For similar reasons, even if we were to conclude that additional efforts should have been made to see whether the victim was available, the defendant's inability to question her about the Facebook post did not cause a substantial risk of a miscarriage of justice.

Order denying motion to correct illegal sentence affirmed.

      After the memorandum and order was issued, the defendant separately appealed his sentence and filed a motion to revise and revoke that sentence, which was denied. The current appeal is limited to the denial of his motion to correct illegal sentence.

      The sentence for the mayhem conviction exceeded the applicable sentencing guideline, but the judge explained his reasons for doing so on the record.

      Adding some confusion to the mix, the separate document itself is entitled "Motion To Correct Illegally Imposed Sentence."

      Trial counsel informed the judge both that he was raising the issue at his client's insistence "against [his] advice," and that the defendant's brother had just discovered the Facebook post. In the oral argument before us, the defendant stated that both he and his trial counsel in fact had been aware of the post at the time the victim was excused.

      At trial the victim testified that she permanently resides in California and was in Massachusetts only temporarily in order to testify.

      For example, the records revealed that the victim suffered six broken vertebrae and underwent surgery that resulted in two rods and eight screws being implanted in her spine to stabilize it.


text:
    COMMONWEALTH v. Daniel RHODES.
    15-P-1700
    Appeals Court of Massachusetts.
    Entered: May 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant was convicted of assault with intent to rape his daughter. On appeal the defendant argues that there were numerous errors in the jury instructions, the conviction may have rested on an improper factual basis, and the judge abused her discretion in denying him access to certain treatment records. We affirm.

Facts. Based on the evidence at trial the jury could have found that on different dates when his daughter was between five and nine years old, the defendant used his hands to "move [his daughter's] butt cheeks out of the way," and she would feel pressure and movement from the defendant's penis around her anus.

Discussion. 1. Jury instructions. The defendant raises five errors relating to the jury instructions. He advances both preserved and unpreserved claims of error relating to the jury instructions. We review for prejudicial error when an error is preserved. See Commonwealth v. Vick, 454 Mass. 418, 423 n.5 (2009). Claims of unpreserved error are reviewed for a substantial risk of a miscarriage of justice. See Commonwealth v. Marinho, 464 Mass. 115, 122 (2013).

a. Assault. The defendant claims the judge erred by instructing the jury on both the attempted battery and threatened battery theories of assault where there was no factual basis for a finding based on the threatened battery theory. Because the defendant's exception was preserved, we review the defendant's claim for prejudicial error.

Under the common law there are two theories of assault: attempted battery and threatened battery. Commonwealth v. Porro, 458 Mass. 526, 530 (2010). The daughter's testimony provided ample evidence both "that the defendant intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so," ibid. (quotation omitted), and "that the defendant intentionally engaged in menacing conduct that reasonably caused the victim to fear an imminent battery," Commonwealth v. Melton, 436 Mass. 291, 295 n.4 (2002). Because the evidence was sufficient to convict the defendant on either theory of assault, the judge did not err in instructing the jury on both theories.

b. Delayed reporting and mandated reporter instructions. Additionally, the defendant objected to the denial of his requests for the use of specific language in the instruction on delayed reporting and in a supplemental instruction on mandated reporters of child abuse in response to a jury question. A trial judge has "considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration." Commonwealth v. Newell, 55 Mass. App. Ct. 119, 131 (2002). A trial judge "is not required to grant a particular instruction so long as the charge, as a whole, adequately covers the issue." Commonwealth v. Daye, 411 Mass. 719, 739 (1992), quoting from Commonwealth v. Anderson, 396 Mass. 306, 316 (1985). See Commonwealth v. Silva, 388 Mass. 495, 507 (1983) (trial judge may use discretion "to choose the form of expression best adapted to make the law intelligible to the jurors").

Here, the judge's instruction on first complaint included the model jury instruction relating to delay in reporting. The judge denied the defendant's request to include additional language which, the defendant claims, would have resulted in a more balanced instruction since it would inform the jurors that "truthful and false reports [of sexual assault] may be made at any time." While the first complaint doctrine removes the requirement that a complaint be "fresh," it does not entirely remove the timing of the complaint from the jury's consideration. In fact, in announcing the first complaint rule, the Supreme Judicial Court said that "the timing of the complaint, [the victim's] motivation for disclosing the assault to the particular person told and in the particular circumstances, and the manner in which the [victim] made the disclosure, may be essential to the jury's understanding and appreciation of the first complaint testimony." Commonwealth v. King, 445 Mass. 217, 246 (2005). The "delay" component of the King instruction was designed to prevent an improperly adverse inference from a delayed report, not to eliminate completely the permissible inferences that may be drawn from a delay in reporting after the assault. See id. at 242, 245-248. The instruction, as given, explained that in an even-handed way. Accordingly, there was no error, as the delayed reporting instruction in this case conveyed the proper legal standard.

During deliberations the jury made inquiry as to whether the victim's "clinicians" had an obligation to report a fabricated claim of abuse similar to their obligation to report suspected abuse. In response, the defendant sought an instruction on the mandated reporter law. The judge rejected the defendant's request and informed the jury that the question involved facts and legal conclusions that were not part of the case, and that they should only consider the evidence admitted during the trial and her previous instructions.

" 'The proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly.' The judge's discretion to formulate a response is broad." Commonwealth v. Monteagudo, 427 Mass. 484, 488 (1998), quoting from Commonwealth v. Waite, 422 Mass. 792, 807 n.11 (1996). There was no abuse of the judge's broad discretion here.

c. Credibility and first complaint. The defendant for the first time on appeal claims portions of the jury instructions on credibility and first complaint were flawed. The challenged language had been specifically requested by the defendant. The instructions tracked the model jury instructions and the challenged portions constitute accurate statements of the law. We discern no error. Instructions that convey the proper legal standard, particularly when tracking model jury instructions, are deemed correct. See Commonwealth v. Young, 461 Mass. 198, 210 (2012).

2. Sufficiency of factual basis. Next, the defendant raises the argument that there was a risk that the jury's verdict may have rested on an improper factual basis. The defendant concedes the testimony from the victim that there were multiple occasions when the defendant would move her butt cheeks and put his penis on her butt, if credited, was sufficient to support the conviction of assault with intent to rape. However, the defendant contends that the incident on September 29, 2012, wherein, the victim testified, the defendant joined her in the shower and touched her butt, was insufficient to support the conviction under either theory of assault. The defendant now argues that because the jury may have rested their verdict on the September 29 events, the conviction must be reversed.

We find no merit in the defendant's argument. The judge instructed the jury, at the defendant's request, that the offenses occurred on diverse dates between April 1, 2008, and September 28, 2012. Additionally, immediately following the testimony of the daughter relating to the events on September 29, 2012, the judge provided the jury with a limiting instruction that the testimony of events that occurred on September 29, 2012, concerned uncharged conduct and was admissible for the limited purpose to show the overall nature of the defendant's relationship with his daughter. The judge's instructions clearly informed the jury that September 29, 2012, was excluded as a possible date of offense and the testimony regarding the shower event concerned uncharged conduct. Since it is presumed that jurors will follow all of the judge's instructions, we discern no error here, let alone a substantial risk of a miscarriage of justice. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997).

3. Treatment records. Finally, the defendant argues that the trial judge abused her discretion by denying in part his requests to summons the daughter's counselling records. The defendant requested summonses pursuant to Mass.R.Crim.P. 17(a)(2), 378 Mass. 886 (1979), for all of the daughter's counselling records from when she began counselling in June, 2011, to the time of the filing of the motion. The judge allowed the request only for the records beginning in September, 2012, when the daughter made her first complaint to her mother. The judge denied the request for records relating to treatment prior to the daughter's disclosure in September, 2012, on the basis that the defendant had failed to show the records being sought were material and relevant.

We review a judge's ruling on rule 17(a)(2) motions for abuse of discretion. See Commonwealth v. Mitchell, 444 Mass. 786, 791 (2005).

"[T]he party moving to subpoena documents to be produced before trial must establish good cause, satisfied by a showing '(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition." ' " Commonwealth v. Dwyer, 448 Mass. 122, 141 (2006), quoting from Commonwealth v. Lampron, 441 Mass. 265, 269 (2004).

Here, the judge determined the defendant failed to satisfy the requirement that the documents sought are "material and relevant." The defendant must make a factual showing "that the documentary evidence sought has a 'rational tendency to prove [or disprove] an issue in the case.' " Lampron, supra at 269-270, quoting from Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989). The defendant's motions claim that since the daughter was in counselling during the time period covered in the indictments for various behavioral issues, including deceptiveness, the records are relevant. "Potential relevance and conclusory statements regarding relevance are insufficient" to satisfy the rule. Lampron, supra at 269. Relevance cannot be established by speculation. See Commonwealth v. Alcantara, 471 Mass. 550, 564 (2015). The defendant's arguments that the records might have a tendency to "prove or disprove the allegations" or "bear on the credibility of [the daughter]" were too speculative. There was no evidence that the daughter even spoke to the therapist about matters relating to the indictments prior to her disclosure to her mother in September, 2012. We conclude there was no abuse of discretion in denying the defendant's request for the additional counselling records.

Judgment affirmed.

      The judge provided the model jury instructions for witness credibility and first complaint. The defendant claims it was error for the judge to include in the credibility instruction that the jury "must resolve [any] conflicts [in the testimony] and ... determine where the truth lies," see Criminal Model Jury Instructions for Use in the District Court § 2.260 (2009 ed.), and that it was error to include in the first complaint instruction that the "[victim] may have reported the alleged assault to more than one person," see Massachusetts Superior Court Criminal Practice Jury Instructions § 7.11 (Mass. Cont. Legal Educ. 2d ed. 2013).


text:
    COMMONWEALTH v. James W. HINES.
    16-P-1592
    Appeals Court of Massachusetts.
    Entered: May 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant, James W. Hines, was convicted of trafficking in an opium derivative, G. L. c. 94C, § 32E(c ) ; trafficking in an opium derivative in a drug-free school zone, G. L. c. 94C, § 32J ; and unlawful possession of an electric stun gun, G. L. c. 140, § 131J. On appeal, the parties agree that the defendant is entitled to a new trial because the defendant's confrontation rights were violated when a substitute chemist read language from drug certificates prepared by another chemist into the record at trial. Having determined that the defendant's confrontation rights were in fact violated, on the indictments charging the defendant with trafficking in an opium derivative and trafficking in an opium derivative in a drug-free school zone, we reverse the judgments and set aside the verdicts. As to those indictments, we nevertheless address the defendant's claims with respect to the sufficiency of the evidence, as those issues are likely to arise if the defendant is retried. On the indictment charging the defendant with unlawful possession of an electric stun gun, based on Ramirez v. Commonwealth, 479 Mass. 331 (2018), the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant.

Background. The jury could have found the following facts.

1. Search of the defendant's home. On December 19, 2009, police executed a search warrant at the defendant's home. During the execution of the search warrant, the defendant's girl friend was secured in the living room of the home and the defendant was found in the basement of the home. The police found a digital scale, cards with "residue" on them, a cut straw, money on a shelf, a business card for JJ Auto, and a store credit card in the basement. Men's clothing "consistent with the general size of the defendant" and a draw-string backpack, containing a stun gun, two digital scales, numerous prescription pills weighing a total of 3.6 grams, and a box of sandwich bags, were also found in the basement. A police detective activated the stun gun after removing it from the draw-string backpack, causing it to make a loud noise. Upon hearing the noise, the defendant's girl friend shouted at the defendant, "You son of a bitch, I told you to get that out of the house." In the kitchen of the home, the police found prescription bottles bearing the defendant's name, as well as documents containing the defendant's name pinned to a bulletin board.

2. Search of the defendant's place of business. On the same day, the police executed a search warrant at the defendant's place of business, JJ Auto. The defendant gave police a key to the business after being informed that the police had a warrant to search the premises. Inside the office area of the business, the police found on a desk a letter from the property owner addressed to the defendant and a rent payment receipt bearing the defendant's name. In the desk drawer, the police found a wallet containing the defendant's Massachusetts identification card, a digital scale, a pill crusher, a "Ped Egg," and a cutting agent. Behind the desk was an unlocked safe containing a number of prescription pills, weighing a total of forty-six grams, as well as two digital scales.

Discussion. 1. Testimony of the substitute chemist. At trial, a substitute chemist read into the record portions of drug certificates prepared by the testing chemist. In doing so, the substitute chemist testified to the underlying factual findings and conclusions of the unavailable testing chemist contained in the drug certificates. As the parties agree, and this panel has determined, that violated the defendant's right to confront the witnesses against him. See Commonwealth v. Barbosa, 457 Mass. 773, 784 (2010). We therefore reverse the judgments on the two drug related charges and set aside those verdicts.

2. Sufficiency of the evidence. In reviewing the sufficiency of the evidence presented at trial, we apply the familiar standard set forth in Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).

a. Constructive possession. The defendant argues that there was insufficient evidence to prove that he constructively possessed the contraband located in the backpack found in the basement of his home and the pills found in the safe at his place of business.

"To permit a finding of constructive possession there must be evidence sufficient to infer that the defendant not only had knowledge of the items, but also had the ability and intention to exercise dominion and control over them." Commonwealth v. Frongillo (No. 1), 66 Mass. App. Ct. 677, 680 (2006). "Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom." Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985).

i. Contraband in the backpack. While presence alone in an area where contraband is found is insufficient to prove that a defendant constructively possessed contraband, "presence, supplemented by other incriminating evidence, 'will serve to tip the scale in favor of sufficiency.' " Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989) (quotation omitted). Here, the defendant was present when the police found the backpack containing the prescription pills and the stun gun in the basement of his home. After the stun gun found in the backpack made a loud noise while being tested by the police, the defendant's girl friend yelled at the defendant, stating, "You son of a bitch, I told you to get that out of the house." Additionally, men's clothing that could fit the defendant was found in the basement and prescription bottles and documents containing the defendant's name were found in the kitchen, indicating that the defendant lived in the home in which the contraband was found. The defendant's proximity to the backpack, coupled with the statement made by his girl friend and the other evidence indicating that he resided in the home, sufficiently linked him to the backpack, and the jury were free to infer that the defendant constructively possessed the pills contained therein. See ibid.

ii. Contraband in the safe. Although the defendant was not present in his place of business at the time the pills contained in the safe were discovered, constructive possession may be proved by linking the defendant to the particular location in which the contraband was found. See, e.g., Commonwealth v. Clarke, 44 Mass. App. Ct. 502, 506 (1998), citing Commonwealth v. Rarick, 23 Mass. App. Ct. 912, 912 (1986) ; Commonwealth v. Proia, 92 Mass. App. Ct. 824, 834 (2018). Here, evidence was presented that the defendant owned the business where the pills were found and had produced a key to the business; the pills were found in an unlocked safe located within the office of the defendant's business; the defendant's wallet containing his identification was located in a drawer of the desk next to the open safe; and a letter from the owner of the premises to the defendant, as well as a rent payment receipt containing the defendant's name, were found on the office desk. The evidence presented thus linked the defendant to the particular location within his place of business in which the pills were found, and the jury were free to infer that the defendant was in constructive possession of the pills located within the safe. See Proia, supra.

b. Controlled substance. The defendant further argues that the testimony of the substitute chemist was insufficient to prove that the pills the defendant was charged with trafficking were in fact controlled substances on the basis that the substitute chemist's opinion was based only upon a visual inspection of the pills.

The record makes clear that the substitute chemist's opinion was not based solely on his physical examination of the seized pills. The substitute chemist testified that he formed an opinion as to the contents of the pills found in the backpack and in the safe based on his inspection of the pills, as well as his review of lab results containing a structural analysis of the pills and lab notes from the testing chemist, and those of Annie Dookhan, who first tested the contraband. Contrast Commonwealth v. Paine, 86 Mass. App. Ct. 432, 436 (2014).

c. Trafficking. Finally, the defendant argues that the method of weighing the pills at trial rendered the evidence as to weight insufficient to prove that the defendant trafficked in opium derivatives.

At trial, the substitute chemist weighed the pills using a scale produced by the Brockton police department that the substitute chemist calibrated with noncertified calibration weights. Unlike in Commonwealth v. Podgurski, 81 Mass. App. Ct. 175, 186-187 (2012), on which the defendant relies, the scale in this case was calibrated prior to its being used by the substitute chemist. The fact that it was calibrated using noncertified weights goes to the weight of the evidence as opposed to its admissibility. ,

3. Unlawful possession of a stun gun. The defendant's direct appeal is before this court. While his case was pending in this court, the Supreme Judicial Court released its decision in Ramirez v. Commonwealth, 479 Mass. 331 (2018). In Ramirez, the court held that the absolute ban on stun guns set forth in G. L. c. 140, § 131J, violates the Second Amendment to the United States Constitution, and declared the statute facially invalid. Id. at 337-338, 342. As such, the defendant here is entitled to the benefit of Ramirez. See Commonwealth v. Beauchamp, 424 Mass. 682, 685 (1997), citing Griffith v. Kentucky, 479 U.S. 314, 320-328 (1987) ("Ordinarily, a criminal defendant gets the full benefit of any changes in the law while on direct review"). Therefore, as to the stun gun charge, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant.

Conclusion. On the indictments charging trafficking in an opium derivative under G. L. c. 94C, § 32E(c ), and trafficking in an opium derivative in a drug-free school zone under G. L. c. 94C, § 32J, the judgments are reversed and the verdicts are set aside. On the indictment charging unlawful possession of an electric stun gun under G. L. c. 140, § 131J, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant.

So ordered.

Reversed.

      Another individual was found either in the basement with the defendant or by the stairs leading to the basement.

      At trial, a police detective identified a "Ped Egg" as a device that can be used to shave pills down into a powder form.

      The confrontation clause violations are unrelated to the unlawful possession of a stun gun charge and therefore do not affect the validity of that judgment. See Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 249-250, 261 (erroneous admission of ballistics certificate not harmless beyond reasonable doubt as to firearm charge; however, based on overwhelming evidence establishing bullets as ammunition, it was harmless beyond reasonable doubt as to ammunition charge).

      The sufficiency of the evidence as it relates to the stun gun charge is of no import given our determination on that charge, as discussed infra.

      The fact that another person may have been with the defendant at the time is of no consequence. See Commonwealth v. Dinnall, 366 Mass. 165, 168-169 (1974) ("Possession need not be exclusive but may be joint").

      There was no error in allowing the substitute chemist to provide his expert opinion as to the substance of the seized contraband based on the testing chemist's test results. See Commonwealth v. Greineder, 464 Mass. 580, 584 (2013). However, as stated above, it was improper for the substitute chemist to read portions of the testing chemist's results into the record. See Commonwealth v. Barbosa, 457 Mass. at 784.

      We note that the total weight of the substances that the defendant was charged with trafficking as measured by the substitute chemist was forty-six grams, and the Commonwealth was required to prove that the defendant trafficked in an opium derivative with a net weight of thirty-six grams or more, but less than one hundred grams.

      The defendant makes further arguments relative to the admission of prior bad act evidence and hearsay statements at trial. In the event of a retrial, the trial judge assigned to the case will be in a better position to consider those issues should they arise again. We therefore decline to address those issues here.


text:
    COMMONWEALTH v. Luis W. CRUZ.
    17-P-397
    Appeals Court of Massachusetts.
    Entered: May 9, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the District Court, the defendant, Luis W. Cruz, was convicted of assault by means of a dangerous weapon. On appeal, he contends that the judge abused his discretion by refusing to give an absent witness instruction at trial. We affirm.

Background. On the morning of June 4, 2015, the victim arrived at Valley Psychiatric Services (VPS), where she worked as a mental health counselor. The door to VPS automatically unlocks at 8:00 A.M. While the victim waited for the door to open, she noticed the defendant standing a few feet away. The defendant was a patient at VPS.

The victim saw the defendant approach the door and try to open it. She observed the defendant become angry and yell, "Where is my clinician.... When is it that the door opens." The victim watched the defendant's anger level increase and offered to assist him by calling his clinician from her cellular telephone. As she brought the telephone toward her ear, she saw the defendant "jump" and noticed that he was holding a knife approximately one foot in length with a six-inch blade. The defendant put the knife against her throat. The victim stated, "I can put the speakerphone so you can listen to everything that I am saying." The defendant said, "I'm going to kill you if you call the police." The victim then saw her client, and was able to run toward him and away from the defendant. Her client was getting out of the motor vehicle in which he was sitting, but the victim told him not to exit. As she ran away, the defendant yelled, "If you call the police, I'm going to kill you, I'm going to kill you." The victim telephoned 911, relayed the situation to the dispatcher, and told other people in the parking lot to stay in their vehicles. Portions of the 911 call were played for the jury at trial.

At approximately 8:00 A.M. , shortly after the victim had run away from the defendant, a social worker approached the facility's front door. She observed the defendant in the parking lot. After she opened the front door to VPS, the defendant approached her and spoke to her. The defendant subsequently showed her the knife. The social worker "grabbed his hands" and the defendant "hesitated to let the knife go." The two "struggled a little while" over the knife, but the defendant eventually relinquished it. The social worker did not observe the defendant assault the victim. Police officers arrived shortly thereafter, arrested the defendant, and retrieved the knife from the social worker.

The defendant testified at trial and explained that although he had pulled out the knife, he did not direct it or hold it against anyone. Rather, he only intended to use the knife to hurt himself. The jury found to the contrary.

Discussion. The defendant contends that the judge abused his discretion in refusing to give an absent witness instruction regarding the mother of the victim's client, see note 2, supra, and that the denial constituted prejudicial error. We disagree.

"The decision whether to provide a missing witness instruction to the jury is within the discretion of the trial judge, and will not be reversed unless the decision was manifestly unreasonable." Commonwealth v. Saletino, 449 Mass. 657, 667 (2007). An absent witness instruction is appropriate when a party "has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case," and the party, without explanation, fails to call the person as a witness. Commonwealth v. Anderson, 411 Mass. 279, 280 n.1 (1991) (citation omitted). In determining whether to provide such an instruction, judges consider, among other factors, the importance of the witness to the party against whom the inference is sought and whether the witness was equally available to both parties. See Commonwealth v. Williams, 450 Mass. 894, 900 (2008). This analysis typically involves consideration of the relative strength or weakness of the case. See Commonwealth v. Ortiz, 67 Mass. App. Ct. 349, 357 (2006). "Whether an inference can be drawn from the failure to call witnesses necessarily depends ... upon the posture of the particular case and the state of the evidence." Commonwealth v. O'Rourke, 311 Mass. 213, 222 (1942). "Because the inference, when it is made, can have a seriously adverse effect on the noncalling party-suggesting, as it does, that the party has wilfully attempted to withhold or conceal significant evidence-it should be invited only in clear cases, and with caution." Williams, supra at 900-901 (citation omitted).

In the present case, the judge did not abuse his discretion in refusing to give an absent witness instruction. First and foremost, as the judge explicitly found, the evidence against the defendant was strong, such that the Commonwealth would not necessarily be expected to call the proposed witness at trial. The victim, who had no apparent or alleged motive to fabricate the assault, provided strong testimony regarding the incident. Her testimony was corroborated by abundant evidence including the 911 tape and the testimony of the social worker, who had to struggle to remove the knife from the defendant. Second, the record supports the judge's finding that the record was unclear as to whether the alleged absent witness was even in a position to see whether the defendant touched the victim with the knife. Having reviewed the trial transcript, we cannot say that the judge abused his discretion in determining that the witness's testimony would not have been central to the case. Third, and finally, the defendant did not demonstrate that the Commonwealth had superior knowledge of the witness's whereabouts. To the contrary, as far as the record indicates, the witness was equally available to either party. Accordingly, the defendant's claim is unavailing.

Judgment affirmed.

      The defendant was charged with assault and battery by means of a dangerous weapon, but convicted of the lesser included offense of assault by means of a dangerous weapon.

      The victim's client was a young boy, who was waiting in a motor vehicle with his mother.

      Our case law has used the terms "absent witness" instruction and "missing witness" instruction. For purposes of this decision, we intend no distinction between the two.

      The parties disagree as to whether the issue was properly preserved for appeal. Where we determine that the judge did not err in denying the request for the absent witness instruction, we need not resolve the dispute.

      We note that the alleged absent witness was not referenced on the Commonwealth's witness list.


text:
    COMMONWEALTH v. Ruben URIBE.
    17-P-1051
    Appeals Court of Massachusetts.
    Entered: May 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury-waived trial before the Superior Court, the defendant, Ruben Uribe, was found guilty of trafficking in heroin, eighteen grams or more but less than thirty-six grams, and trafficking in cocaine, eighteen grams or more but less than thirty-six grams. See G. L. c. 94C, §§ 32E(b ) & (c ). On count one (heroin), he was sentenced to a term of not less than three and one-half nor more than four years in State prison, and on count two he was sentenced to a concurrent term of not less than two nor more than three years in State prison. The theory of the Commonwealth's case was that the defendant was in constructive possession of drugs found in an apartment. The defendant, who was arrested outside of the apartment as he parked his car, had a key to the apartment on his person. There was testimony indicating that the police had observed the defendant enter the apartment on prior occasions, but that testimony did not include any statement concerning the temporal proximity between the defendant's prior visits to the apartment and the subsequent execution of a search warrant and discovery of drugs within the apartment. For the reasons that follow, we conclude that the evidence, while sufficient to support a finding that the defendant had the ability to exercise control over the apartment and its contents, was not sufficient to support an inference that the defendant had knowledge of the drugs located within the apartment. Accordingly, we reverse.

Background. On October 2, 2014, Detective James Connolly and other members of the Fitchburg police department arrived at 58-60 Intervale Road to execute a search warrant. The apartment building was located in a residential neighborhood and contained approximately sixteen units. The warrant was for unit 10, which was located on the second floor of the building. The officers arrived in the vicinity of the apartment building around noon and waited for the defendant to arrive prior to executing the search warrant.

Detective Connolly had previously surveilled 58-60 Intervale Road and observed the defendant entering unit 10 on "different times and dates, using a key." Detective Connolly did not specify on what dates he observed the defendant enter the apartment. The apartment was not under police surveillance on the night of October 1, or before noon on October 2, the date the search warrant was executed.

The defendant parked his car in a parking spot adjacent to the 58-60 Intervale Road apartment building just after 2:00 P.M . and was immediately detained by the police. The defendant was found with seventy-one dollars in cash and a cellular telephone on his person at the time of his arrest. The defendant also possessed a key to unit 10, but he did not live in the apartment. No contraband or other incriminating evidence was found in the defendant's car.

The officers gained access to unit 10 after breaching the door. No one was inside the apartment at the time the warrant was executed. The apartment contained a kitchen area, a bathroom, and what can be considered either a living room or a bedroom containing some chairs and a television located on a television stand. The apartment was sparsely furnished and contained minimal food, clothing, and personal items. During their search of the apartment, the officers found 19.78 grams of packaged cocaine resting on the television stand and 22.22 grams of heroin contained in a black plastic bag located in the refrigerator.

At trial, the Commonwealth's expert proffered testimony describing the term "stash house" as "a location used by either an individual or an organization to store or use as a location to store narcotics, [United States] currency, or to oftentimes package narcotics for distribution." He continued by stating that stash houses have few personal items and few furnishings. He then opined that a trusted member of a criminal organization would have access to a stash house. He further stated that the quantity of drugs found in the apartment, in addition to the discovery of scales and baggies in the apartment, were consistent with drug distribution, as opposed to personal use.

The defendant was subsequently arrested and charged with trafficking in heroin, eighteen grams or more but less than thirty-six grams, and trafficking in cocaine, eighteen grams or more but less than thirty-six grams.

Discussion. The defendant argues that insufficient evidence was presented to convict him beyond a reasonable doubt of both drug trafficking offenses. We agree.

In reviewing the sufficiency of the evidence, the "question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

In order to establish that a defendant constructively possessed contraband, the Commonwealth must present evidence sufficient to show that the defendant had knowledge of the contraband, in addition to the ability and intention to exercise dominion and control over it. Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). "The Commonwealth may prove that the defendant had knowledge of the contraband by circumstantial evidence, if the evidence warrants a reasonable inference to that effect." Commonwealth v. Garcia, 409 Mass. 675, 686 (1991). However, evidence indicating that a defendant had access to, and was present in, a location in which contraband was found is insufficient to demonstrate that the defendant had knowledge of the contraband for the purposes of proving constructive possession, absent further incriminating evidence. See Commonwealth v. Sespedes, 442 Mass. 95, 100 (2004).

Here, the fact that the defendant had a key to the apartment and was seen entering the apartment at unspecified dates and times certainly demonstrates that the defendant had the ability to access the apartment, but it is nevertheless insufficient to prove that the defendant had knowledge of the contraband that he was charged with constructively possessing. See ibid. (holding that defendant's ability to access vacant apartment via keys found on his person, and his brief presence in apartment shortly before execution of search warrant, were, standing alone, insufficient to prove that defendant had knowledge of drugs hidden in drop ceiling for purposes of proving constructive possession). Detective Connolly provided no testimony as to the dates on which he previously saw the defendant enter the apartment, or the amount of time that elapsed between his prior observations of the defendant's entry into the apartment and the execution of the search warrant. Additionally, no evidence was presented relating to the procurement of the search warrant or the defendant's previous involvement in any drug-related activity. Absent further evidence indicating when the defendant was last seen entering the apartment, or any other evidence tending to show that the defendant had knowledge of the contraband located within the apartment, concluding that the defendant had knowledge of the drugs located in the refrigerator and on the television stand amounts to improper speculation. See Corson v. Commonwealth, 428 Mass. 193, 197 (1998).

Furthermore, the testimony of the Commonwealth's expert witness, in which he described sparsely furnished apartments as "stash houses" used by trusted members of criminal organizations, does not serve to "tip the scale in favor of sufficiency." Brzezinski, supra at 410, quoting from Commonwealth v. Albano, 373 Mass. 132, 134 (1977). To begin with, the expert witness never opined that unit 10 was, in fact, a stash house; nor did he opine that the defendant was a trusted member of a criminal organization. The expert's testimony required the fact finder to infer that unit 10 is a stash house, to further infer that the defendant is a trusted member of a criminal organization because he possessed a key to unit 10, and to thereby infer that he had knowledge of the contraband located in unit 10. The expert's testimony required the fact finder to "merely pile inference upon inference" in arriving at the conclusion that the defendant had knowledge of the contraband found in unit 10. Corson, supra (citations omitted).

The Commonwealth has brought no case to our attention in which the defendant's knowledge of contraband was established for the purposes of proving constructive possession based on a fact pattern similar to that presented in the case before us. Based on the foregoing, we conclude that insufficient evidence was presented to prove that the defendant had knowledge of the contraband located in the apartment for the purposes of proving constructive possession.

Judgments reversed.

Findings set aside.

Judgments shall enter for the defendant.

      The warrant and supporting affidavit are not in the record before us.

      No explanation was given at trial as to why the officers waited for the defendant to arrive prior to executing the search warrant.

      No evidence was presented indicating who paid rent or utility bills for the apartment. While being booked at the Fitchburg police station, the defendant indicated that he lived in Methuen.

      We note that there had been no observation of the apartment since, at a minimum, the night before the execution of the search warrant.

      While the precise location of the cocaine placed behind the television is unclear from the record, it was not in plain view and was only found after a drug-sniffing dog alerted in front of the television stand. As previously discussed, the heroin was found in a black plastic bag located inside the refrigerator.

      The defendant also challenges the evidence presented to the grand jury as insufficient to establish probable cause pursuant to Commonwealth v. McCarthy, 385 Mass. 160 (1982). When reviewing the sufficiency of the evidence supporting an indictment, we view the evidence before the grand jury in the light most favorable to the Commonwealth. Commonwealth v. Rakes, 478 Mass. 22, 29 (2017). Although certainly a close case, we cannot say that the grand jury " 'heard ... no evidence whatever that would support an inference of the defendant's' guilt." Ibid., quoting from Commonwealth v. Truong Vo Tam, 49 Mass. App. Ct. 31, 37 (2000).


text:
    D.A.C. v. L.M.C.
    17-P-38
    Appeals Court of Massachusetts.
    Entered: May 8, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   D.A.C. (husband) and L.M.C. (wife) were divorced after a four-day trial in 2013, and thereafter continued to litigate a number of matters in the Probate and Family Court, the Superior Court, and this court. In the case before us, each party filed a complaint for civil contempt; after a trial, a judge of the Probate and Family Court (who was not the judge who presided at the divorce trial) issued a contempt judgment against the husband on the wife's complaint. No contempt judgment entered against the wife. The husband appeals, arguing that the hearing was unfair because, inter alia, the judge was biased against him and wrongly found him in contempt. We affirm.

Contempt trial. The trial at issue here was limited to two remaining financial issues-the wife alleged that the husband had not transferred retirement funds to her as ordered in the divorce judgment, and the husband alleged that the wife had not paid her share of joint tax liability under the terms of that judgment. The husband had an opportunity to offer evidence to dispute the contempt allegations against him, and to argue that the monies the wife owed him should be offset by the amount that the divorce judgment ordered him to transfer to the wife from his retirement account by rollover or qualified domestic relations order (QDRO). He also had an opportunity to cross-examine the wife on the status of her tax payments.

The dispute centers upon two provisions in the divorce judgment, which provide as follows:

"13. [The husband] shall transfer to [w]ife $6992.00 from his retirement funds by rollover or by [QDRO]. Any costs associated with the drafting of a QDRO shall be paid equally by the parties.
"...
"16. Each party shall pay one-half (1/2) of all debts, interest, and penalties owed to the Internal Revenue Service and/or the Massachusetts Department of Revenue."

Both parties appeared and were represented by counsel at the June 6, 2016, contempt trial. As noted, the husband now argues that the judge conducting the contempt trial was unfair to him and that the finding of contempt was erroneous. In addition, he contends that the judge erred when he refused to continue the trial to permit the husband's expert to testify in person regarding the parties' joint Federal tax liability and the remaining monies each owed. The husband argues that the expert, who was unavailable to appear at the hearing until later in the afternoon due to a doctor's appointment, should have been allowed to testify by "audio-visual means"; he also insists that it was not necessary for the hearing to be held on June 6 because the matter, which had been pending since 2014, was not time sensitive. We are not persuaded.

Trial judges have "extensive discretion" with respect to the admission of expert testimony, and appellate courts review these decisions exercising "great deference." Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 485 (2000). In order to show an abuse of discretion here, the husband has the sizeable burden of demonstrating that "the judge made a clear error of judgment in weighing the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation omitted). The husband has failed to meet this burden. We discern neither error, nor abuse of discretion, in the judge's refusal to admit opinion evidence of an absent expert witness-who, as the husband's counsel conceded, had never appeared "anywhere on a witness list"-or in declining to continue the trial when both parties were present, represented by counsel, and otherwise ready to proceed.

Complaint against the wife. The husband claims that the judge misinterpreted paragraph 16 of the divorce judgment regarding the wife's obligation to contribute to their joint tax liability. In an earlier appeal, this court concluded that "[a]s for the tax liabilities," the divorce judge properly "considered the factors enunciated in G. L. c. 108, § 34," and her "findings and rulings [were] clear and supported by the record." D.A.C. v. L.M.C., 87 Mass. App. Ct. 1120 (2015). In the findings and memorandum of decision underlying the divorce judgment, the divorce judge found that the parties jointly owed $16,000 in Federal income taxes for the tax years 2009 and 2010, and $6,000 in State taxes and that "each party [was] responsible equally for these obligations" (emphasis added). The language there speaks for itself. See Home Depot v. Kardas, 81 Mass. App. Ct. 27, 28 (2011), quoting from Jarosz v. Palmer, 49 Mass. App. Ct. 834, 835 (2000), S.C., 436 Mass. 526 (2002) (court may consider "facts of which judicial notice may be taken").

The husband counters that, at the time of the divorce judgment, the wife had filed separate tax returns, incurring additional joint obligations that ought to alter the division described in the judge's decision. However, as the husband testified at the contempt trial, he never filed a motion for reconsideration or for relief from judgment, or addressed before the divorce judge in any way his present argument that, in fact, the wife owed a different amount. The contempt judge tried repeatedly, albeit unsuccessfully, to explain to the defendant and his counsel that he could not hold the wife in contempt for failing to pay to the husband an amount that never had been ordered by the court. We agree with the judge's analysis of the issue and see no error.

Contempt judgment against the husband. "[A] civil contempt finding must be supported by clear and convincing evidence of disobedience of a clear and unequivocal command." Birchall, petitioner, 454 Mass. 837, 853 (2009). An "unequivocal command" is one that provides "adequate notice of the required ... activity." Lynch v. Police Commr. of Boston, 51 Mass. App. Ct. 772, 776 (2001) (quotation omitted).

Here, the judge properly found the husband in contempt for failing to comply with the divorce judgment, which ordered him to transfer to the wife from his retirement funds, "by rollover or by [QDRO]," the amount of $6,992. We are satisfied that the ordered transfer of retirement funds "was a clear and unequivocal command of the sort required to support a complaint for contempt." Hoort v. Hoort, 85 Mass. App. Ct. 363, 365 (2014). The husband, by his own admission, failed to comply with the terms of that order.

The husband's defense was that, in his view, the wife owed him more money than he owed her, by reason of the claimed payment for the joint tax obligation, combined with a default judgment that he had obtained against her in another action pending in the Superior Court. In the Superior Court case, filed against the wife and her mother, the husband had alleged defamation because the two had made serious allegations about the husband's conduct, claims that the divorce judge did not credit. The husband cites no authority for the proposition that he was permitted, unilaterally, to ignore the order of the divorce judge and recalculate the parties' (alleged) respective financial obligations himself. We note that the husband's calculations are, to say the least, in error. Moreover, at the time of the contempt trial, although the Superior Court judge had entered a default judgment in favor of the husband in the defamation case, he had not yet received an award of damages. Finally, we note that the defamation judgment subsequently was vacated in this court. Ceruolo v. Garcia, 92 Mass. App. Ct. 185, 192 (2017). See Home Depot v. Kardas, 81 Mass. App. Ct. at 28 (court "may take judicial notice of the docket entries and papers filed in separate cases"). In sum, we are satisfied that there was ample support for the contempt judgment.

Motion for recusal and allegation that the trial was unfair. Much of the husband's brief is devoted to his repeated allegations that he was not given "a fair and unbiased hearing." We disagree. After careful review of the entire transcript, we are satisfied that the husband's claim that the judge's comments and conduct during the contempt trial indicated not only a bias, but a prejudgment of the matter, are unfounded, as is his contention that the judge showed disrespect for the husband's attorney on a number of occasions. "Generally, recusal is a matter left to the discretion of the judge." Correia v. Correia, 70 Mass. App. Ct. 811, 818 (2007). The issues raised by the husband in support of his recusal requests essentially relate to his disagreement with the judge's evaluation of the evidence; the judge clearly was frustrated with the husband's dogged insistence that his assessment of the circumstances was correct and that the judge was wrong. "Considered in context, the isolated comments cited by [the husband] [were] insufficient to require the judge's disqualification." Id. at 818-819.

Judgment of contempt dated June 28, 2016, affirmed.

      It does not appear from the record before us that any action was taken on the husband's complaint for contempt against the wife.

      With regard to paragraph 13 of the divorce judgment, the divorce judge explained in her findings and memorandum of decision that "[t]he amount depleted from [the wife's] retirement accounts ($17,530.00 + $1,885.00 = $19,415.00) are attributed to her. This amount shall be offset against [the husband's] retirement funds of $33,400.00. [The husband] shall transfer one-half of the difference in the parties' retirement funds ($6,992.00) to [the wife] via rollover or [QDRO]."
      With regard to paragraph 16, the judge stated in her findings and memorandum of decision that "[t]he parties fell behind in paying their income taxes in 2009 and 2010. They owe federal taxes in the amount of $16,000.00 and state taxes in the amount of $6,000.00, which are now due according to a payment plan which requires payments of $120.00 per week. As this is a joint marital debt, each party shall be responsible equally for these obligations" (emphasis added).

      In an opinion letter dated June 2, 2016, the husband's expert stated that, after applying the husband's payments totaling $17,041, the husband owed a remaining $3,409 toward the 2009 and 2010 Federal tax liability of $40,900; the expert also opined that the wife owed a remaining $4,062 after payments she had made that totaled $16,388.

      We note that the complaint for divorce was filed on July 26, 2011; the judgment of divorce nisi-and the order at issue-was docketed on December 6, 2013. The husband's complaint for contempt is dated February 10, 2014. The wife's complaint for contempt is dated February 6, 2014. Motions to continue various hearings on those complaints were filed on April 30, 2014, September 22, 2014, September 23, 2014, and November 7, 2014. The husband also filed an assented-to motion to continue the contempt hearing on August 26, 2015; the wife filed an assented-to motion to continue the contempt hearing on August 28, 2015. Another agreed motion to continue was filed on October 23, 2015, and still another on January 19, 2016.

      Apparently, the husband does not dispute the wife's testimony in the contempt trial that she had satisfied her obligation to pay her share of the monies specified in the divorce judgment, that is, one-half of $22,000, or $11,000.

      The following exchanges are but two examples:
      The court : "Well how am I going to hold somebody in contempt of court when there's no violation of a court order?"
      The husband : "Your Honor, but she was assessed."
      The court : "What you needed was a modification, not a contempt, or you needed to go back on a 299 to the Judge with newly discovered evidence.... The only thing I can hold somebody in contempt for has to be a willful violation of a court order and that they had the ability to comply with that court order."
      and:
      The court : "Or am I supposed to find whether or not there's a clear and unequivocal violation of a clear and unequivocal order of this Court? And whether or not somebody could comply with that clear and unequivocal order. That's the standard I'm going by. Is that not correct, Counsel?"
      Father's counsel : "No."

      We note that, for this reason, the expert's proffered testimony about the actual tax obligations of the parties was irrelevant.

      On cross-examination at the contempt trial, the husband read the order out loud and further testified:
      "Father shall transfer one-half of the difference to the parties retirement fund, $6,992 to Mother via roll over or QDRO."
      Q.: "Okay."
      A.: "Each party shall retain-oh, that's the rest of it."
      Q.: "Have you done so yet?"
      A.: "I have not."
      Q.: "And why is that?"
      A.: "Because we've been offering to offset the debt from the IRS. She owes me more money than I owe her."

      The husband's brief as a whole is troubling, as it contains statements that are untrue, disrespectful to the contempt judge, irrelevant, and misleading. For example, as to untrue statements, in his brief, the husband contends that the judge in the contempt trial "ignored [the husband's] claim against [the wife] and held him in contempt, despite the [wife] owing him then over $120,000." In fact, it was clear at the time of the contempt trial that no damages had yet been assessed in the defamation case. The husband's counsel told the judge, "Your Honor, [w]e were waiting for an assessment of damages. Due to the other side continuing the matter, ... they got what they wanted, which is when we appeared here on June 6th, we don't have the decision" of the judge in the defamation case. Nor has counsel seen fit to inform us that that judgment has now been vacated. As to disrespectful statements, the husband argues in his brief that he "was denied due process and a fair hearing due to the antics of the judge" during the contempt trial (emphasis added). As to irrelevant statements, in setting out the "Procedure and Facts," the husband in his brief devotes many pages to allegations and ad hominem comments about the wife's actions and claims in the divorce trial and custody dispute, which are not before us. As to misleading statements, the husband in his brief states, "At this divorce trial, [the wife] failed to disclose the full extent and amount of her federal tax indebtedness." The citation provided to support this statement is to the husband's own testimony at trial.

      From early in the trial, the husband's counsel was both confrontational and disrespectful to the judge. Counsel repeatedly interrupted the judge, refused to answer direct questions and, more than once, when the judge indicated disagreement with counsel's legal argument, responded to the judge by asking him to recuse himself.
      The husband's counsel's first request for recusal was denied early in the proceeding when the judge noted that he had not heard from the husband a reason why he "hasn't done what a Court has ordered him to do, there's no excuse for that that I've heard from you yet." The judge instructed husband's counsel that he could put the husband "on the stand and I'll hear all the excuses you want to give him." Counsel responded with a request for the judge to recuse himself "[b]ecause [the judge] just said all the excuses. You're already saying this gentleman ...-who's before the Court ..."; the husband was then called to testify. The judge denied counsel's next request for recusal after explaining to counsel that he could make an offer of proof only for "stuff that you have knowledge of."

      The husband's argument that the judged erred in denying his subsequently filed motion for mistrial, based on the same argument as for recusal, fails for these same reasons.


text:
    D.R. v. D.A.
    17-P-338
    Appeals Court of Massachusetts.
    Entered: May 8, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The husband appeals from a judgment of divorce nisi, specifically challenging the division of marital assets. Because we conclude that the judge's findings gave undue weight to the husband's "bad" conduct such that the grossly unequal asset allocation "falls outside the range of reasonable alternatives," we vacate so much of the judgment that divides the marital assets and remand the matter for reconsideration thereof consistent with this memorandum and order, but affirm the remainder of the judgment. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The judge's detailed subsidiary findings are not challenged on appeal. In summary, the judge found that the parties' premarital cohabitation came about through the unilateral action of the husband, to which the wife acquiesced. Once married, the husband, although initially employed, thereafter essentially became voluntarily underemployed leaving the wife to carry the economic burden of the household. His behavior to the wife was controlling and emotionally abusive. He did not contribute to the tasks of the marital household (including cleaning and grocery shopping), and there were no childcare responsibilities because the parties had no children. Although the husband did make a financial contribution towards the purchase of a condominium, the judge found his subsequent unreasonable actions left it uninhabitable, diminishing its utility and increasing its costs to the wife. All household expenses were borne by the wife. In broad summary, the judge found that the husband contributed little to the marital enterprise, whether measured economically or otherwise, and had a significant negative effect on the wife's wellbeing.

We have long recognized that " '[c]onduct' that has harmed the marriage or the marital estate may be viewed negatively, and considered as a factor that would diminish that spouse's equitable share of marital property. However, it is conduct having an adverse impact on the marriage or the marital estate, not simply conduct that is in some other sense considered 'good' or 'bad,' that is to be weighed." Kittredge v. Kittredge, 441 Mass. 28, 38 (2004). Even when one spouse's conduct during the marriage renders the marital estate less valuable, that is "but one circumstance, not necessarily determinative in itself, for a judge to consider in equitably distributing property pursuant to [G. L. c. 208,] § 34." Ibid.

"Negative conduct, to be more than a featherweight factor, must either be economically detrimental to the welfare of the partnership, such as by undermining the family's economic stability through disposal or wasting of marital assets, such as through unlawful or fraudulent acts, or be so egregious as to impair the ability of one spouse to function in the future."

Alperin & Chase, Summary of Basic Law § 8:123, at 160 (5th ed. 2016) (footnotes omitted). Thus, for example, where a spouse's illegal activity (gambling) did not affect the household's standard of living during the marriage or diminish the marital estate to the point where that standard could not be maintained after the marriage, the losses from that activity have not been weighed entirely against the offending spouse. Kittredge, supra at 42. By the same token, where a spouse's criminal conduct (seeking to have the other killed) has required the other to shoulder total responsibility for their children's care and for maintaining their home and also has a permanent effect on the other's ability to focus on life and work, that conduct can be given large weight in the asset allocation because of its negative ongoing economic effect. Wolcott v. Wolcott, 78 Mass. App. Ct. 539, 544-545 (2011).

Here, the judge's findings tied the husband's "bad" behavior to its financial consequences in several ways. First, she found that the husband's conduct diminished the value of the condominium and increased the wife's expenses with respect to it. Second, she found that the husband's voluntary underemployment deprived the household of a potential source of income while providing nothing significant in exchange. Third, she found that the husband's abusive and controlling behavior emotionally interfered with the wife's workday. We discern no abuse of discretion in the judge's determination that the husband's conduct in these respects warranted an unequal division of marital assets and, indeed, one of significant disproportion.

However, we are unpersuaded that those findings supported the extreme allocation arrived at here. As the judge found, the wife's earnings during the marriage increased "dramatically" during the marriage, as did her accumulation and retention of assets (in the form of stock, savings, a severance package, a signing bonus, and stock options). The judge does not find that the husband's bad behavior affected the wife's earnings capacity during the marriage, her retention and accumulation of earnings/compensation during the marriage, or her future earnings capacity. The judge nonetheless allocated those assets entirely to the wife. "We have always emphasized that a court should not apply 'the discarded idea that the wage earner is entitled to most if not all of the benefits of the paid work.' " Adams v. Adams, 459 Mass. 361, 391 (2011) (quotation omitted).

For these reasons, we vacate so much of the judgment that divides the marital assets and remand the matter for reconsideration thereof pursuant to our memorandum and order. Our conclusion in this regard should not be understood to mean that a significantly unequal division is outside the range of acceptable alternatives on remand. In all other respects the judgment is affirmed.

So ordered.

vacated in part and remanded; affirmed in part.

      The husband also makes two further arguments. First, he argues that the judge should have required the wife to maintain health insurance for him even after her current COBRA benefits expire, claiming the judge failed to consider G. L. c. 175, § 110I. But that statute has no application here. Second, he argues that the judge erred as a matter of law when she declined to extend the "length of the marriage" to include the parties' premarriage period of cohabitation. See G. L. c. 208, § 48. Contrary to the husband's argument, the matter was one of discretion for the judge based on consideration of the factors laid out in G. L. c. 208, § 49(d )(1). See Duff-Kareores v. Kareores, 474 Mass. 528, 535 (2016). The judge's detailed findings regarding this issue show that she carefully considered the statutory factors, and the husband does not argue (let alone show) that they are clearly erroneous. We discern no abuse of discretion.

      Because the judge did not specifically identify the ratio of the division, we asked for postargument submissions from the parties. The husband's calculation, as stated in his brief, is that the division of assets resulted in a ninety-six percent to four percent split; the wife's calculation is a ninety-one percent to nine percent split. The difference between these figures is immaterial for our purposes; the important point is that the overall disposition is far outside the customary range.

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


text:
    D.R. v. D.A.
    17-P-339
    Appeals Court of Massachusetts.
    Entered: May 8, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The husband appeals from a permanent abuse prevention order, entered pursuant to G. L. c. 209A. He argues that (1) it was abuse of discretion for the judge to construe a Facebook "like" as a threat of imminent physical harm; (2) it was error for the judge to enter the order without evaluating whether it was reasonably necessary to protect the wife; and (3) it was error for the judge to enter the order without referencing the wife's burden of proof or making an explicit finding regarding the wife's credibility. We affirm.

The wife sought to make permanent an abuse prevention order she had obtained against the husband in 2015. In support, she supplied an affidavit that laid out the verbal, physical, and emotional abuse she had suffered at the hands of the husband during their marriage. The affidavit included details of a Facebook post the husband wrote in 2015, in which he described in dramatic narration how someone with the wife's birth date would die. In 2016, a few days prior to the abuse prevention order extension hearing, the husband posted that he "liked" a birthday greeting that someone else had left on the wife's Facebook timeline. In addition to her affidavit, the wife testified during the hearing that she was afraid of the husband and worried that the husband would try to kill her. The judge entered a permanent abuse prevention order.

A person seeking an extension of an abuse prevention order based on " 'fear of imminent serious physical harm' must always show that he or she is currently in fear of imminent serious physical harm, and that such fear is reasonable." Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014). Where abuse has already occurred, "a judge may reasonably conclude that there is a continued need for the order because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent." Ibid.

The husband argues that the judge abused her discretion when she construed a Facebook "like" as a threat of imminent physical harm. However, the husband ignores the fact that the judge was entitled to interpret the husband's "like" by reference to the totality of the circumstances. See Iamele v. Asselin, 444 Mass. 734, 740, 739 (2005) (Iamele ) (judge is to look at totality of circumstances when deciding whether extension of 209A order is necessary to protect plaintiff "from the likelihood of 'abuse[ ]' "). Those circumstances were such as to entitle the judge to interpret the husband's "like" as a threat. The wife stated, both in her affidavit and at the hearing, that she remained in fear not only that the husband would physically harm her, but also that he would kill her. When determining whether that fear was reasonable, the judge was entitled to consider the years of escalating emotional, verbal, and physical abuse the wife described. The judge was also entitled to consider the husband's Facebook post from the year before, which laid out in grim detail the death of a person with the wife's same birth date. The judge could find significance in the timing of the posts as well, and could reasonably infer that the timing of the "like" would stand as a reminder to the wife of the alarming Facebook post from the previous year.

The husband also argues that the judge was required to articulate the wife's burden of proof and to make an explicit finding regarding her credibility; we disagree. What must be clear from the record is that the judge knew the correct standard for deciding whether to extend an abuse prevention order. See Iamele, supra at 741 (remand necessary where unclear what burden of proof judge believed plaintiff had to meet). Moreover, the judge's "ultimate decision [to grant the order] make[s] it clear that she credited [the victim]," even if she did not explicitly say so. Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006).

Order entered May 17, 2016, affirmed.

      The plaintiff and the defendant were married when the plaintiff first sought an abuse prevention order. At the time the plaintiff sought the permanent abuse prevention order, the parties' divorce trial was completed but the judge (who was the same for both the divorce and the c. 209A proceedings) had not issued findings or entered a divorce judgment. For this reason, and for ease of reference, we refer to the defendant as "husband" and the plaintiff as "wife" although they are now divorced.

      "Abuse" is defined, in relevant part, as "attempting to cause or causing physical harm" or "placing another in fear of imminent serious physical harm." G. L. c. 209A, § 1, as appearing in St. 1990, c. 403, § 2.

      Because it is clear from the record that the judge took all of the circumstances into account, the husband's argument that the judge entered the order without evaluating whether it was reasonably necessary fails.

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