text:
    NATIONSTAR MORTGAGE LLC v. Oratai CULHANE.
    16-P-1723
    Appeals Court of Massachusetts.
    Entered: January 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, mortgagor, Oratai Culhane, appeals from a final decision of the Appellate Division of the District Court Department reversing a summary process judgment in her favor. She argues, among other things, that the Appellate Division lacked authority to enlarge the statutorily prescribed appeal period. We agree and reverse.

Procedural background. On July 15, 2013, the plaintiff, mortgagee Nationstar Mortgage LLC (Nationstar), brought a postforeclosure summary process complaint against the defendant and her son, Michael J. Culhane, a codefendant. The next day, Oratai and Michael, acting pro se, filed a joint answer and counterclaims. Thereafter Oratai obtained counsel, who filed an assented-to motion to strike Oratai's original answer and allow the filing of a new answer.

Following discovery, on September 3, 2013, Nationstar moved for summary judgment, asserting that it had superior right and title to the property and res judicata barred Oratai's counterclaims. Oratai opposed Nationstar's motion and also moved for summary judgment, asserting that Nationstar failed to provide her with proper notice of default. On September 24, 2013, Oratai's motion for summary judgment was allowed. Judgment entered on September 30, 2013. On October 4, 2013, Nationstar filed and served a motion for reconsideration; the order denying that motion was docketed on December 9, 2013. On December 17, 2013, Nationstar filed a notice of appeal with the Appellate Division.

The appeal was dismissed by the Appellate Division; it was deemed premature as counterclaims against Nationstar remained pending. Thereafter Nationstar filed an assented-to motion to reconsider dismissal of the appeal, asserting that Oratai's motion to strike the original answer and counterclaims had been allowed but not docketed. The motion was denied, without prejudice, as the counterclaims related to Michael remained open. Nationstar then moved for a default judgment against Michael, and that judgment entered on September 19, 2014.

About twenty days later, on October 10, 2014, Nationstar filed a second motion for reconsideration, which, on November 12, 2014, the Appellate Division denied. However, the decision and order allowed Nationstar leave to "file, within 10 days of this order, a new notice of appeal in the trial court, and thereafter perfect its appeal pursuant to Rule 8C."

On November 20, 2014, Nationstar filed a new notice of appeal. The subsequent decision and order of the Appellate Division vacated the judgment for possession for Oratai and entered judgment for possession for Nationstar. This appeal followed.

Discussion. Oratai claims, among other things, that the Appellate Division lacked the authority to enlarge the statutorily prescribed appeal period set forth in G. L. c. 239, § 5. We agree.

Notwithstanding the need for Nationstar to resolve multiple outstanding claims to avoid dismissal of its appeal as premature, all claims were resolved when a default judgment entered against Michael on September 19, 2014. By its plain language, G. L. c. 239, § 5(a ), sets a deadline for any litigant in a summary process action to claim an appeal, specifically, within ten days after entry of the judgment. See Jones v. Manns, 33 Mass. App. Ct. 485, 488-489 (1992). "The period is fixed by statute and is jurisdictional." Id. at 489. "We have required strict adherence to the short period for claiming an appeal prescribed by G. L. c. 239, § 5." Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492, 504-505 (1997). The Supreme Judicial Court and this court have consistently and strictly enforced this deadline, concluding that a jurisdictional defect is a serious misstep which requires dismissal. See Petrillo-Aufiero v. Petrillo, 436 Mass. 1002, 1002 n.3 (2002) ; Jones v. Manns, supra. Indeed, a motion judge also lacks the authority to provide additional time to file a notice of appeal. See Liberty Mobilehome Sales, Inc. v. Bernard, 6 Mass. App. Ct. 914, 914 (1978). While a timely motion to alter or amend the judgment tolls the clock pursuant to Dist./Mun. Cts. Appellate Division Appeal Rule 4(a) (2013), see Manzaro v. McCann, 401 Mass. 880, 881-882 (1988), the time frame cannot be enlarged.

Because Nationstar failed to timely claim an appeal within the prescribed statutory period, the Appellate Division had no authority to enlarge Nationstar's time to appeal and erred by granting it leave to do so following the denial of its second motion for reconsideration. Accordingly, the judgment entered by the Appellate Division is void for want of subject matter jurisdiction. See Harris v. Sannella, 400 Mass. 392, 395 (1987) (judgment is void where it issues from a court that "lacked jurisdiction over the subject matter").

Decision and order of the Appellate Division reversed.

      Nationstar is the holder of a quitclaim deed from the foreclosure sale. The original mortgagee was Aurora Services of Nebraska, LLC.

      Michael J. Culhane is not a party to this appeal, a default judgment having entered against him. As the parties share a surname, we will use first names to avoid confusion.

      The docket does not reflect action on the motion. However, both parties asserted below that the motion had been allowed.

      Oratai unsuccessfully challenged the validity of the foreclosure sale in June of 2011. See Culhane v. Aurora Loan Servs. of Neb., 826 F. Supp. 2d 352 (D. Mass. 2011), aff'd, 708 F.3d 282 (1st Cir. 2013).

      Nationstar argues that had it not been for clerical error, its first motion for reconsideration would have been allowed. Regardless, the Appellate Division could not exercise jurisdiction unless Nationstar sought leave to file an interlocutory appeal or until final judgment entered. See Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974). See also Long v. Wickett, 50 Mass. App. Ct. 380, 388 (2000). Nationstar did not file an interlocutory appeal, but chose the latter course.

      We need not reach Oratai's other claims on appeal as a result of the decision reached herein. We also decline Nationstar's invitation to exercise our discretion to decide the merits of this case.


source: Caselaw Access Project

license: Public Domain

text:
    Eileen E. CAIN-CLANCY v. Paul E. CLANCY, Jr.
    17-P-216
    Appeals Court of Massachusetts.
    Entered: January 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Paul E. Clancy, Jr. (father) appeals from a November 2, 2015, temporary order awarding child support payments of $180 per week to the mother; a March 23, 2016, order denying his motion to dismiss Eileen E. Cain-Clancy's (mother) amended complaint for contempt; and, a May 9, 2016, judgment denying the father's motion for reconsideration, finding the father guilty of civil contempt, and awarding attorney's fees to the mother. The father claims the judge erred in making each of these dispositions. We affirm.

1. Child support payments. The father alleges the judge erred on November 2, 2015, in reducing, without vacating, his child support obligation from him to the mother. We disagree.

The parties, in their 2003 separation agreement, agreed that the father would pay $360 per week to the mother in child support. The father was awarded temporary physical custody of the parties' minor child on September 15, 2015. On November 2, 2015, the judge issued temporary orders reducing the father's child support obligation to the mother to $180 per week and denying the father's request for child support payments. The father filed a motion for reconsideration on January 29, 2016, which was denied on May 9, 2016. In support of this denial, the judge found:

"It was this [c]ourt's belief, ... that the dispute between [m]other and [the child] was temporary in nature, and that [m]other would resume primary physical custody of the child once the matter was resolved. It would have been drastic and unfair to eliminate [f]ather's child support to [m]other altogether at the hearing on [f]ather's [m]otion for [t]emporary [o]rders, given the Court's uncertainty of the ultimate outcome in the case. Therefore, the Court entered a [t]emporary [o]rder reducing [f]ather's child support obligation from $360.00 per week to $180.00 per week. The matter was scheduled to be heard in February, 2016, after input from a [g]uardian ad [l]item." (Emphasis in original).

On May 9, 2016, the judge vacated the father's child support award but declined to enter the order retroactively. On May 10, 2016, the parties entered a stipulation on their cross complaints for modification that primary physical custody would remain with the father and the mother would pay the father child support of $258 per week.

Under the uncertain and potentially temporary conditions between November 2, 2015, and May 9, 2016, the judge did not abuse his discretion. Furthermore, temporarily obligating the father to continue paying child support despite shifting physical custody to him was reasonable in light of the judge allowing the mother to have "[p]arenting time with [the child] on Wednesdays and Sundays, at times agreed upon by the [p]arties" and "additional [p]arenting [t]ime as agreed upon between the [p]arties." The modification, therefore, did not "fall[ ] outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

2. Denial of the father's motion to dismiss. The father next claims the judge's March 23, 2016, denial of his oral motion to dismiss the mother's amended complaint for contempt was in error because the mother's complaint lacked specificity as to the dates the father allegedly missed child support payments. Upon review of the complaint on its face and the record, we are not persuaded an error occurred.

The complaint listed the child support orders the father allegedly violated: $360 per week as ordered September 9, 2003, and $180 per week as ordered November 2, 2015. As of the date of the amended complaint, the mother claimed the total amount unpaid was $19,800, which increased to $20,160 at the time of the hearing date. At the hearing, the mother testified that this figure included forty-nine missed payments of $360 from March, 2012, to August 31, 2015 ($14,400), and from September 4, 2015, to October 30, 2015 ($3,240), plus fourteen payments of $180 per week from November 2, 2015, to February 10, 2016, the date of the hearing ($2,520). This was sufficient specificity to raise a legitimate question of contempt, and, therefore, the motion to dismiss was properly denied.

3. Finding of civil contempt. The father also claims it was error for the judge, in the May 9, 2016, judgment, to find him in civil contempt for failing to pay the mother child support of $180 per week. We disagree. "[A] civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command." Rosen v. Rosen, 90 Mass. App. Ct. 677, 691-692 (2016), citing Birchall, petitioner, 454 Mass. 837, 853 (2009).

Although the father initiated modification proceedings-a proper form of seeking relief-he nevertheless unilaterally stopped making payments to the mother, choosing to flout a clear and unequivocal court order. See Barnes v. Devlin, 84 Mass. App. Ct. 159, 164-165 (2013). The judge properly found that the fact that the father gave the child support checks to his lawyer to place in escrow was immaterial because "[t]he [o]rder of November 2, 2015, was clear and unequivocal, and, by his own admission, the [f]ather had the ability to comply with the [o]rder. He simply chose to ignore it." The father was properly found in contempt.

4. Attorney's fees. Finally, the father claims it was error for the judge to award the mother $3,232 for attorney's fees and deny his request for $12,310.16 for the same. We disagree. The judge determined that the mother's legal fees were "fair and reasonable given the length of the trial," but awarded her only as much as was proportionate to the father's contempt finding. Considering this result, it was not an abuse of discretion for the judge to make such an award. Compare Cooper v. Cooper, 62 Mass. App. Ct. 130, 141-143 (2004).

Order dated November 2, 2015, is affirmed.

Order denying motion to dismiss dated March 23, 2016, is affirmed.

Judgment dated May 9, 2016, is affirmed.

      Although the temporary order would not have been immediately appealable, it is reviewable here upon the father's appeal from the May 9, 2016, final order. See Fazio v. Fazio, 91 Mass. App. Ct. 82, 87 n.13 (2017).

      This decision, issued in the November 2, 2015, temporary order, was later incorporated into the May 9, 2016, judgment when the judge found the father guilty of civil contempt for failing to pay the mother $180 per week in accordance with the temporary order.

      We note that the September 15, 2015, order was ambiguous in that it stated both that "Father shall have [t]emporary [p]hysical [c]ustody of the [m]inor [c]hild" and that "Mother has agreed that [the child] shall remain with [f]ather for '[e]xtended [p]arenting [t]ime.' "

      Although the Massachusetts Child Support Guidelines (2013) (Guidelines) were not expressly contemplated in the parties' separation agreement or in any of the judge's modification orders, the Guidelines presumptively applied here and would have conferred broad discretion upon the judge to make such a modification. See G. L. c. 208, § 28. See also Wasson v. Wasson, 81 Mass. App. Ct. 574, 576-577 (2012). The Guidelines include parenting time as one factor, among others, to be considered in setting the child support order. They further state: "If parenting time is less than one-third for the parent who is not the residential parent, the Court may consider an upward adjustment to the amount provided under the child support guidelines." Guidelines § II-D (emphasis added).

      The father additionally argues, without citation to authority, that his Motion to Reconsider should have been decided before the contempt hearing occurred. We deem this argument waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

      We have considered the remainder of the father's claims and find nothing that warrants further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

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


text:
    COMMONWEALTH v. Wilson ZAYAS.
    16-P-1460
    Appeals Court of Massachusetts.
    Entered: January 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The Commonwealth appeals from an order of the Superior Court allowing the defendant's motion to suppress. The defendant was arrested and indicted for trafficking in over two hundred grams of cocaine after a postal inspector discovered that a package addressed to, and procured by, the defendant contained cocaine. The judge suppressed the drugs discovered in the package reasoning that the State police and the Federal postal inspector lacked probable cause to arrest the defendant, and that the defendant's subsequent statements should be suppressed as fruit of the poisonous tree. See Commonwealth v. White, 475 Mass. 583, 596 (2016) ("Where an item is seized without probable cause, the item and its 'fruits' may not be introduced in evidence"). On appeal, the defendant advances multiple arguments including that the postal inspector lacked reasonable suspicion to remove the package from the stream of mail. We affirm.

Discussion. The parties agree that because a Federal law enforcement agent removed the package from the stream of mail during a Federal investigation, we apply Federal law to our assessment of the justification for that removal. See Commonwealth v. Pinto, 45 Mass. App. Ct. 790, 792 (1998).

A law enforcement agent may remove a package from the stream of mail only when he possesses reasonable suspicion to believe the package contains contraband. See ibid.; United States v. Allen, 990 F.2d 667, 671 (1st Cir. 1993). Such reasonable suspicion exists when an agent has "a particularized suspicion [of wrongdoing]... based upon all of the circumstances." United States v. Cortez, 449 U.S. 411, 418 (1981). This requires more than just one or two suspicious facts. See United States v. Awer, 770 F.3d 83, 91 (1st Cir. 2014), cert. denied, 135 S. Ct. 980 (2015) ("a person's nervousness and movement in a car parked in a high-crime area" alone are insufficient for reasonable suspicion). While reasonable suspicion may arise from seemingly innocent facts, see United States v. Arvizu, 534 U.S. 266, 277 (2002), a law enforcement officer must nevertheless "explain why the officer's knowledge of particular criminal practices gives special significance to apparently innocent facts." 4 LaFave, Search and Seizure § 9.5(a), at 650 (5th ed. 2012), quoting from United States v. Walker, 324 F.3d 1032, 1037 (8th Cir. 2003), cert. denied, 540 U.S. 898 (2003).

In the case before us, the postal inspector's suspicion was aroused to the content of this package because it (1) originated from Puerto Rico, a location known to him as a source for contraband; (2) had a handwritten address rather than a business label; (3) was sent via express mail (which in the inspector's experience is the manner in which drug dealers attempt to evade inspection); and (4) was excessively taped which, in the inspector's experience, indicated an attempt to secrete the package's contents. The Commonwealth asserts that these seemingly innocent factors, taken together, supply the particularized level of reasonable suspicion which permits the package's removal from the stream of mail. We are not persuaded.

None of the cases cited by the Commonwealth, nor any that we have found, support a finding of reasonable suspicion to remove a package from the stream of mail based on the factors present here. In each of the cases cited by the Commonwealth, there is a plus factor that is absent here. For example, in Allen, 990 F.2d at 671, in addition to the package originating from a drug-source location, a handwritten label, and express mail designation, the recipient had received multiple similar looking packages within a short time period, the handwriting on the return address was the same as the other packages but the return address was different, and the name on one of the packages came from a sender known to have previously mailed drugs. See ibid. By comparison, none of these additional factors are present here.

In United States v. Lakosey, 462 F.3d 965, 976 (8th Cir. 2006), cert. denied, 549 U.S. 1259 (2007), in addition to the factors present in this case, there were plus factors that included a fictitious return address and a tip that drugs were being delivered to the defendant via mail. Finally, in United States v. Lozano, 623 F.3d 1055, 1060 (9th Cir. 2010), in addition to a package having a handwritten label and being heavily taped, other plus factors included an incomplete return address, fictitious names, and the fact that the defendant had inquired of the postal employee whether mail could be searched for drugs. Accordingly, we conclude the inspector here lacked reasonable suspicion to remove the package from the stream of mail. In light of our ruling, we need not reach the defendant's arguments regarding probable cause to arrest and the admissibility of the defendant's statements. We agree with the judge's conclusion that other evidence obtained following the seizure of the package, including inculpatory statements made by the defendant during questioning, must be suppressed as "fruits of the poisonous tree." The order allowing the motion to suppress is affirmed.

So ordered.

      The judge did not appear convinced that the box had excessive tape, and neither are we. We are in the same position as the judge because the Commonwealth only offered a picture of the package as evidence. See Commonwealth v. Bean, 435 Mass. 708, 714 n.15 (2002) (appellate court owes motion judge no deference when evaluating "content and significance" of photographs). The Commonwealth has the burden of showing a warrantless seizure was supported by reasonable suspicion, see Commonwealth v. Comita, 441 Mass. 86, 91 (2004), and it has not met that burden with regard to the taping of the package.

      The judge ruled on the basis of these other grounds; however, we may affirm on any ground "supported by the record and the findings." Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).


text:
    COMMONWEALTH v. Mark S. TINSLEY.
    16-P-110
    Appeals Court of Massachusetts.
    Entered: January 5, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant, Mark S. Tinsley, was convicted of one count of assault and battery on a police officer (ABPO), resisting arrest, disorderly conduct, and carrying a dangerous weapon. On appeal, the defendant challenges evidentiary rulings, jury instructions, and orders denying his two motions to dismiss, a motion to suppress, and a motion for a new trial. We affirm.

Background. This case began with a traffic stop that escalated into a violent encounter between a motorist and the police. At 9:15 P.M. on May 27, 2012, Detective Joseph Godino and Officer Greg Reardon were on patrol in an unmarked sport utility vehicle (SUV). Traveling southbound on Hollis Street, the officers noticed a dark Nissan Maxima sedan turning onto Hollis Street. Detective Godino ran a license plate check of the Nissan, using the SUV's computer. The officers trailed behind the Nissan as it proceeded onto Winthrop Street; they lost sight of the car when it sped off. The officers estimated that the Nissan was traveling at a speed between forty-five and fifty miles per hour (mph) in a twenty-five mph zone.

Approaching the end of Winthrop Street, the officers again observed the Nissan. After it turned onto Waverly Street, Officer Reardon activated the SUV's blue lights to stop the Nissan, which promptly came to a halt at the side of the road without incident. Detective Godino exited the SUV and approached the Nissan on its passenger side. The defendant was the sole occupant of the Nissan. Officer Reardon first observed the defendant look back in the direction of the SUV. Detective Godino testified that he observed the defendant move his left hand down between the driver's door and seat area. Detective Godino warned Officer Reardon that the driver "was reaching for something." On at least one more occasion, Detective Godino observed the defendant moving his left hand down and toward the driver's door or seat, as if the defendant was "trying to either stuff something or grab" an item in that area. Detective Godino told Officer Reardon to get the defendant out of the vehicle. Officer Reardon spoke with the defendant, asking him to produce his license and registration, which he did without incident. Officer Reardon also asked the defendant to step out of the Nissan. The defendant asked why. Both officers repeatedly instructed the defendant to step out of the Nissan. The defendant refused. The defendant indicated that he did not want to get out because he had been arrested by Officer Reardon during a prior incident, when he was also asked to get out of the vehicle. Detective Godino called for back-up. Three officers responded. The officers asked the defendant repeatedly-some fifty to eighty times-to get out of the Nissan.

Ultimately, the five officers forcibly removed the defendant from his car. The defendant sustained injuries, including a broken nose and finger. No officer was injured. The police officers found a knife on the ground, close to the spot where the defendant was handcuffed. Later that same evening, during the booking process, an officer found a small amount of marijuana (less than one ounce in weight) on the defendant.

Discussion. 1. Motion to suppress. The defendant claims that the motion judge erred in denying his motion to suppress the knife and marijuana, as the police unlawfully stopped the defendant and asked him to exit the vehicle. We disagree.

As a general matter, in the context of a routine traffic stop, "once a stopped driver has produced the necessary papers and they are found to be in order, he and his passengers are to be promptly released." Commonwealth v. Gonsalves, 429 Mass. 658, 668 (1999). However, "[w]hen the police are justified in stopping an automobile for a routine traffic violation, they may, for their safety and the safety of the public, order the driver or the passengers to leave the automobile, but only if they have a reasonable belief that their safety, or the safety of others, is in danger." Commonwealth v. Torres, 433 Mass. 669, 673 (2001). An officer is justified in issuing an exit order to a driver or a passenger when "a reasonably prudent man in the policeman's position would be warranted in such a belief." Ibid. (quotation omitted).

Here, the motion judge correctly determined that the police had a valid reason for stopping the Nissan and that the exit order was valid. The Nissan was stopped for speeding. Thereafter, Detective Godino observed the defendant, more than once, using his left hand to reach down between the door and driver's seat, in a manner that was suggestive of retrieving or concealing an object. The act of retrieving or concealing heightened the safety concern inherent in every automobile stop and provided an objectively reasonable basis for the officers to take the protective measure of an exit order. See Commonwealth v. Stampley, 437 Mass. 323, 327 (2002), and cases cited.

2. Motions to dismiss. a. Speedy trial. The defendant argues that the motion judge erred in denying his motion to dismiss all charges on the grounds that the twenty-four month delay between his arraignment and retrial violated his speedy trial rights under the Sixth Amendment to the United States Constitution, art. 11 of the Massachusetts Declaration of Rights, and Mass.R.Crim.P. 36, as amended, 422 Mass. 1503 (1996). We review de novo the denial of the speedy trial motion to dismiss. Commonwealth v. Williams, 475 Mass. 705, 714 (2016).

The defendant simply asserts that the Commonwealth failed to meet its burden to justify the delay in bringing him to trial. We need not resolve this issue as upon retrial, the speedy trial clock is reset and the trial "shall commence within one year after the date the action occasioning the retrial becomes final." Mass.R.Crim.P. 36(b)(1)(D). The Supreme Judicial Court has explained that the word "final" as used in rule 36(b)(1)(D)"is intended to provide for a reasonable accommodation of [an accused's] speedy trial rights and the need for an orderly appellate process." Commonwealth v. Levin, 390 Mass. 857, 860-861 (1984). Neither the Commonwealth nor the defendant appealed from the judge's declaration of a mistrial and order for retrial. That order, thus, was final as of the date of issuance, January 28, 2014. Pursuant to rule 36(b)(1)(D), the Commonwealth was required to bring the defendant to trial no later than January 28, 2015. Here, a retrial commenced on October 27, 2014. The defendant's motion to dismiss, whether based on a speedy trial claim under constitutional provisions or under rule 36, was properly denied.

b. Double jeopardy. The defendant claims error in the denial of his motion to dismiss on double jeopardy grounds. In essence, he contends that the Commonwealth goaded him into moving for a mistrial and, therefore, that principles of double jeopardy barred a retrial. We agree with the motion judge that the Commonwealth's failure to produce a supplemental police report was due to its negligence or inadvertence, far short of the type of egregious prosecutorial misconduct designed to cause a mistrial for which dismissal is warranted. See Commonwealth v. Durand, 475 Mass. 657, 672-673 (2016).

3. Evidentiary rulings. a. Prior convictions. The defendant claims that it was error for the trial judge to admit evidence of his prior convictions, contending that they were not relevant and were extremely prejudicial. See Commonwealth v. Little, 453 Mass. 766, 773 (2009). A judge may allow use of evidence of a witness's past convictions for impeachment when inclusion of such evidence bears on a witness's credibility. Commonwealth v. Whitman, 416 Mass. 90, 93 (1993). Here, the prior convictions-for distribution of a class B drug, and possession with intent to distribute a class B drug (both felony convictions, G. L. c. 94C, § 32A, for which the defendant had been sentenced to committed time within the past ten years)-were dissimilar to the currently charged offenses. As the defendant's version of the events underlying the instant charges was at significant odds with the officers' accounts, his credibility was in issue at trial. The past convictions need not be of a character that bear directly upon truthfulness or honesty. See Commonwealth v. Smith, 450 Mass. 395, 407 (2008). The judge gave an appropriate limiting instruction to caution and guide the jury's consideration of this evidence for its limited purpose. See Commonwealth v. Shruhan, 89 Mass. App. Ct. 320, 325 (2016) ("The jury are presumed to follow the instructions given by the judge"). See also Commonwealth v. Roucoulet, 22 Mass. App. Ct. 603, 608 (1986). We discern no abuse of discretion.

b. Prior arrest. Over objection, Officer Reardon testified that he knew the defendant from a prior arrest. The defendant argues that he was unduly prejudiced by this evidence. It is uncontested that, at the scene, the defendant stated that he "knew" Officer Reardon because the officer had arrested him on a prior occasion. The defendant's admission was relevant to his state of mind when Officer Reardon asked him to step out of the Nissan. See Commonwealth v. Chalifoux, 362 Mass. 811, 816 (1973). The probative value of this material evidence was not substantially outweighed by the prejudice to the defendant. See Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007). The evidence added context to the officers' mounting safety concerns. See Commonwealth v. Cordle, 404 Mass. 733, 744 (1989).

c. Evidence of § 1983 action. Over an objection, the Commonwealth was permitted to introduce evidence that the defendant had filed a civil rights lawsuit pursuant to 42 U.S.C. § 1983 against the town and police officers. The defendant argues that this was an egregious error, which had the effect of infringing upon his right to a fair trial. The pendency of the civil action was an appropriate subject for the prosecutor to make inquiry upon during cross-examination, given its implicit materiality as to the defendant's possible bias. See Commonwealth v. Elliot, 393 Mass. 824, 826-830 (1985). The evidence may also have had a similar cross-effect as to the officers who testified. It was not an abuse of discretion to admit this evidence.

4. Jury charge. The defendant asserts it was error for the trial judge not to give certain requested jury instructions concerning the lawfulness of the traffic stop and exit orders. It has long been the law in this Commonwealth that these subjects involve legal issues for the court to decide in acting on a motion to suppress, and are not for a jury to revisit. See Commonwealth v. Brady, 357 Mass. 213, 214-215 (1970). The trial judge properly refused to give the proposed instructions.

5. Motion for new trial. Without a hearing, the trial judge denied the defendant's motion for a new trial. The defendant claims in part that there was no evidence that he used the knife in a dangerous manner and therefore he was entitled to a new trial. Prior to trial, the Commonwealth amended the complaint, without objection, to allege that the confiscated knife was spring assisted. The jury were instructed as to the carrying a dangerous weapon portion of the statute, and not the carrying a dangerous weapon while arrested portion of the statute. See G. L. c. 269, § 10(b ). There was no error. The evidence was sufficient to support the conviction and the defendant's motion for a new trial was properly denied.

Judgments affirmed.

Order denying motion for new trial affirmed.

      At an earlier trial, when the Commonwealth acknowledged its failure to provide counsel with certain mandatory discovery, the defendant moved for a mistrial. The judge allowed that motion, dismissed the jury, and ordered a retrial. Later, with his new counsel, the defendant filed two motions to dismiss and a motion to suppress, all of which were denied.

      The defendant was acquitted of one count of ABPO. He was also found not responsible for the civil infraction of speeding.

      It appears that there was no notice of appeal filed as to the order denying the motion for new trial. However, the issues have been fully briefed by the parties and we exercise our discretion to address the propriety of the order.

      So far as relevant to the issues in this appeal, there were no material differences between the evidence at trial and at the hearing on the motion to suppress.

      Detective Godino testified that the license plate query listed "Marquis Tinsley" as the registered owner.

      At this point, the Nissan's engine was still running. Detective Godino noticed the defendant reach for the gear shift in the center console. While the defendant's attention was focused on Officer Reardon, Detective Godino reached into the Nissan, shut the engine off, and took the key out of the ignition. Detective Godino then put the key on the roof, out of the reach of the defendant.

      After the defendant refused to exit the Nissan, three police officers tried to pull him out. When Detective Godino saw the defendant pushing back against one of the other police officers, he punched the defendant on the side of the face and in the chest. Before he could be handcuffed, the defendant had been punched two more times, kneed in the back while lying face down, and sprayed with pepper spray.

      The Commonwealth made a detailed showing, based on the trial court's docket sheets, that when time periods of justifiable delay were accounted for and excluded-due to reasons such as changes of counsel for the defendant, absence of an objection to trial continuances, and court congestion, no speedy trial violation had occurred.

      Though rule 36 is primarily a rule of case management, it was also designed to "quantify the time limits beyond which a defendant's speedy trial rights shall be deemed to have been denied," and to facilitate a defendant's constitutional right to a speedy trial. Commonwealth v. Taylor, 469 Mass. 516, 517 n.2 (2014) (citation omitted).

      The double jeopardy clause of the Fifth Amendment to the United States Constitution protects an accused from multiple prosecutions or punishments for the same offense. Commonwealth v. Selavka, 469 Mass. 502, 509 (2014). Such protections are also afforded an accused under the law of this Commonwealth. See G. L. c. 263, §§ 7, 8, 8A ; Lydon v. Commonwealth, 381 Mass. 356, 366 (1980).

      "The grant of a mistrial followed by a new trial is the relief typically granted where a defendant is prejudiced by a prosecutor's failure to disclose properly exculpatory, material evidence." Commonwealth v. Gallarelli, 399 Mass. 17, 24 (1987) (citation omitted).

      The defendant also argues that it was error to allow the Commonwealth to make reference to marijuana recovered from him upon his arrest. Possession of one ounce or less of marijuana was in May, 2012, a civil infraction under Massachusetts law. See G. L. c. 94C, § 32L, as appearing in St. 2008, c. 387, § 2. The harm, if any, from this evidence was inconsequential given the jury's verdict.

      On appeal, the defendant claims that the jury should have been advised that he was not under arrest when the police pulled him out of the car. The defendant did not request such an instruction at trial, and justice did not likely miscarry from the absence of such an instruction in the charge.

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


text:
    COMMONWEALTH v. Joshua VIERA.
    16-P-1484
    Appeals Court of Massachusetts.
    Entered: January 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from a probation detention order and a probation violation finding, arguing that it was an abuse of discretion to hold him in custody for five days before the violation hearing and that the Commonwealth failed to prove by a preponderance of the evidence that he violated the terms of his probation. We affirm.

The defendant argues that it was unfair to hold him in custody pending the probation violation hearing. Where a judge finds probable cause that a defendant has violated the terms of probation, "the court may order the probationer to be held in custody pending the conduct and completion of the violation hearing." Rule 5(c) of the District/Municipal Courts Rules for Probation Violation Proceedings, Mass. Rules of Court, at 643 (Thomson Reuters 2017). In exercising his discretion to place a defendant in custody, a judge is to consider, at a minimum:

"i. the probationer's criminal record;
"ii. the nature of the offense for which the probationer is on probation;
"iii. the nature of the offense or offenses with which the probationer is newly charged, if any;
"iv. the nature of any other pending alleged probation violations;
"v. the likelihood of probationer's appearance at the probation violation hearing if not held in custody; and
"vi. the likelihood of incarceration if a violation is found following the probation violation hearing."

Ibid. We review to determine whether the judge abused his discretion in ordering that the defendant be held.

The evidence at the detention hearing established that on April 17, 2015, the defendant pleaded guilty to breaking and entering in the daytime with the intent to commit a felony, multiple counts of larceny from a building, and possession of burglarious tools. The defendant was sentenced to two years in the house of correction, one year to serve, with the balance suspended for four years. He was also sentenced to probation to be served on and after the house of correction sentence until April 17, 2019. His conditions of probation included, among other things, that he be subject to GPS monitoring upon his release and that he "not leave Massachusetts unless [he] g[o]t the express permission of [his] probation officer and sign[ed] a waiver of rendition." In 2016, the defendant was found to have violated his probation by failing to satisfactorily complete his agreed-to Salvation Army program. A few months later, the defendant was alleged to have violated his probation by leaving Massachusetts without permission and by falsely stating otherwise to the probation department's electronic monitoring (ELMO) office. He was also alleged to have violated the conditions of his GPS monitoring on three occasions. In these circumstances, the judge did not abuse his discretion in ordering that the defendant be detained pending the probation violation hearing.

We are also not persuaded by the defendant's argument that the evidence was insufficient to establish that he violated the terms of his probation. As noted above, the defendant was not permitted to leave the State without the express permission of his probation officer and signing a waiver of rendition. The defendant acknowledged leaving the State to go to Rhode Island. He also acknowledged that he did not sign a waiver of rendition. On this basis alone, the judge was permitted to find the defendant violated his probation.

Probation detention order and finding of probation violation affirmed.

      Although the defendant at various points in his brief makes reference to two different probation violations, only the one based on the allegation that the defendant left Massachusetts without permission from his probation officer is properly before us. In a prior probation violation proceeding, the defendant was found to have violated his probation for failing to complete a Salvation Army program in which he had agreed to enroll. He did not appeal that determination, and accordingly, it is not open for review in this appeal. See Commonwealth v. Rodriguez, 443 Mass. 707, 709 (2005).

      It was established at the plea hearing that the defendant, together with a codefendant, had broken into a home during the daytime and stolen various electronic and computer devices as well as jewelry.

      His conditions of probation were then modified to require that he enroll in and complete a Level III community corrections program instead.


text:
    COMMONWEALTH v. Alisa G. SLAYMAN.
    17-P-242
    Appeals Court of Massachusetts.
    Entered: January 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of violating a harassment prevention order, G. L. c. 258E, § 9. On appeal, she argues that there was insufficient evidence to sustain the conviction and that any statement made did not constitute contact or harassment under G. L. c. 258E, § 9. We affirm.

1. Sufficiency of the evidence. In the light most favorable to the Commonwealth, the jury could have found the following facts based on evidence presented at trial. In 2015, the victim appeared in District Court for a hearing to extend a harassment prevention order against the defendant. The defendant was also present for the hearing. After the hearing, the judge granted the extension and the victim left the courtroom with her fiancé, the defendant's ex-husband. As the victim and her fiancé walked down the court house stairs, they heard the defendant yell, "Bombaclot mother fuckers are gonna get it." When the victim and her fiancé turned around in the direction of the statement, they saw the defendant about "one stairwell" behind them.

On appeal, the defendant contends that the judge erred in denying her motions for a required finding of not guilty because there was no direct testimony to the identity of the speaker nor the intended recipient of the statement. "When reviewing the denial of a motion for a required finding of not guilty, we inquire '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. Sepheus, 468 Mass. 160, 163 (2014), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "The Commonwealth's evidence 'may be entirely circumstantial, and ... the inferences a jury may draw from the evidence "need only be reasonable and possible and need not be necessary or inescapable." ' " Commonwealth v. Mejia, 461 Mass. 384, 392 (2012) (quotation omitted).

The Commonwealth evidenced the defendant's identification through a series of links that provided a sufficient basis for a jury to conclude that she was the speaker. See Commonwealth v. Mezzanotti, 26 Mass. App. Ct. 522, 527 (1988) ( "[A] voice identification may be considered by a jury as long as the witness expresses some basic familiarity with the voice he or she claims to identify"). Here, the fiancé testified to being the defendant's former husband and that he and the victim had just left a court room where the defendant was present. When both the victim and her fiancé turned in the immediate direction of the source of the statement, they saw the defendant standing only a short distance away. Furthermore, the jury could have found based on the witnesses' testimony that the defendant had directed her statement to the victim. See Commonwealth v. Consoli, 58 Mass. App. Ct. 734, 741 (2003) ("[O]ne cannot undermine a no contact order by the simple expedient of ricocheting prohibited comments off of third parties ... who are in the vicinity of those whom the order protects").

The defendant's challenge to the sufficiency of the evidence is directed more to the credibility of the witnesses and the weight of the evidence, which is beyond our review. See Commonwealth v. Ragland, 72 Mass. App. Ct. 815, 832 (2008) ("The task of assessing the cogency of evidence and resolving conflicting testimony, with rare exceptions not applicable here, is the exclusive province of the jury"). Accordingly, we conclude that the evidence sufficiently supports the defendant's identity as the speaker and that the statement was directed to the victim. The judge properly denied the required finding motions.

2. Sufficient contact. Under these circumstances, the defendant's statement constituted a prohibited "contact" under the statute. "Our cases generally interpret 'contact' broadly; there are many ways to achieve a communication." Commonwealth v. Basile, 47 Mass. App. Ct. 918, 919-920 (1999). Here, the evidence of contact is sufficient to constitute a violation of the harassment prevention order and, thus, we need not examine whether the statements may have also constituted "harassment" under the statute. See Consoli, supra. There was no error.

Judgment affirmed.

      "Bombaclot" is a Jamaican expletive.


text:
    Laura M. CREEDON v. William E. COMEAU.
    17-P-841
    Appeals Court of Massachusetts.
    Entered: January 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Laura Creedon (mother) appeals from an amended contempt judgment that, relevant here: (1) found William Comeau (father) not guilty of civil contempt for his failure to maintain a certain life insurance policy naming their child as a one-third beneficiary; and (2) ordered the father to name their child as a one-third beneficiary under a replacement policy having a reduced benefit (as compared to the father's original policy). "[I]n order to find a defendant in civil contempt there must be a clear and unequivocal command and an equally clear and undoubted disobedience." Larson v. Larson, 28 Mass. App. Ct. 338, 340 (1990). It is the complainant's burden to prove disobedience by clear and convincing evidence. Birchall, petitioner, 454 Mass. 837, 852-853 (2009). We review the judge's ultimate conclusion on the contempt finding for abuse of discretion. See K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014). We perceive no abuse in this case.

Although the mother argues that the 2006 contempt judgment constitutes a clear and unequivocal order, the judge properly could have found otherwise. We note, for example, that the death benefit provided under the father's original, employer-provided life insurance policy varied from time to time, apparently based on the father's actual earned income as a corrections officer. Moreover, nothing in the 2006 contempt judgment specifies that the father was to maintain a given death benefit level. Perhaps more importantly, the 2006 contempt judgment appears to have been superseded by the 2008 modification judgment, which increased the father's child support obligation but notably omits any mention of the father's obligation to maintain the employer-provided life insurance policy. Also notably, the parties stipulated, in the 2008 modification judgment, that they anticipated that the father would soon retire. It was shortly thereafter, in September, 2008, that the father's life insurance policy lapsed (or was reduced to minimum levels) and the mother, as trustee for the child, ceased to be named as a beneficiary under that policy.

Given such facts, the judge properly could have inferred that the parties, in their 2008 stipulation (incorporated into the 2008 modification judgment), intended, in light of the father's anticipated retirement, to relieve the father of his obligation to maintain the employer-provided life insurance policy and the child's status as a one-third beneficiary under that policy. More to the point for present purposes, such facts strongly suggest that the 2008 modification judgment was itself ambiguous and also rendered the 2006 contempt judgment ambiguous such that there existed no sufficiently "clear and unequivocal" order to permit a conclusion that the father's failure to maintain his original, employer-provided life insurance policy with the child as a one-third beneficiary constituted an "undoubted disobedience." Larson v. Larson, supra.

The mother does not challenge the judge's authority to order the father to name the child as a one-third beneficiary under his replacement life insurance policy. See G. L. c. 209C, § 9(a ) ; G. L. c. 209C, § 20 ; Taverna v. Pizzi, 430 Mass. 882, 884 (2000). Compare G. L. c. 208, § 36. Instead, liberally construed, the mother suggests that the replacement policy's death benefit should have been greater. Upon the record before us, we cannot say that the judge improperly concluded that the father's replacement life insurance policy adequately secured the father's future support obligations or that the judge otherwise abused his discretion. Compare Pare v. Pare, 409 Mass. 292, 300 (1991) (whether to enter an order requiring party to provide security, "as well as the specific form that any order or orders should take, are matters within the judge's broad discretion, to be exercised upon consideration of all relevant circumstances").

Amended judgment entered December 29, 2016, affirmed.

      We do not address the mother's claim, made below and addressed in the amended judgment, that the father failed to pay child support for a certain period, because the mother has not made any argument on appeal pertaining to that claim. See American Auto Sales, Inc. v. Massachusetts Port Authy., 2 Mass. App. Ct. 805, 806 (1974) ; Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).


text:
    COMMONWEALTH v. Peter B. ELDRIDGE.
    17-P-683
    Appeals Court of Massachusetts.
    Entered: January 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial, the defendant was convicted of indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B. On appeal, he argues that the motion judge, who also was the trial judge, abused her discretion in denying his motion for a new trial based on ineffective assistance of counsel because his trial counsel (i) had an actual conflict of interest, and (ii) failed to introduce evidence purportedly contradicting the victim's testimony. We affirm.

Background. The defendant has not provided a trial transcript and his appeal could be dismissed for that reason alone. See Commonwealth v. Woods, 419 Mass. 366, 371 (1995). Nevertheless, we proceed in our discretion to review his arguments, drawing on the facts, which neither party disputes on appeal, as set forth in the judge's decision.

In 1998, the defendant, who was dating the victim's mother, lived with the mother, the victim, and the victim's three brothers. The mother worked two jobs, and the defendant was regularly the only adult supervising the victim. The victim testified that one night when she was five years old, she walked into the defendant's bedroom while he was watching pornography and masturbating. The defendant told the victim to masturbate him, and she complied. Later that year, the defendant again told the victim to touch his penis.

Discussion. We review the denial of the defendant's motion for new trial for abuse of discretion. Commonwealth v. Cameron, 473 Mass. 100, 104 (2015).

a. Conflict of interest. The defendant argues that the judge abused her discretion in denying his motion because his trial counsel had a conflict of interest, stemming from his representation of the victim's father in a prior criminal proceeding. We find no such abuse. To begin, the defendant failed to show the existence of an actual conflict of interest adversely affecting his counsel's performance. He provided no indication of the nature of the prior representation or how it affected trial counsel's representation of him. See Commonwealth v. Leo, 11 Mass. App. Ct. 283, 285-286 (1981) (no genuine conflict of interest where trial counsel previously had represented sexual assault victim's father). See also Commonwealth v. Bonefont, 35 Mass. App. Ct. 54, 56 (1993) (no genuine conflict of interest where trial counsel represented victim's parents in separate proceeding during same time he represented defendant). Moreover, even if a potential conflict existed, the defendant's failure to show any material prejudice arising from the conflict is fatal. See ibid.

b. Ineffective assistance. Trial counsel failed timely to disclose greeting cards supposedly from the victim. The defendant argues that because the cards were sent after the abuse, they supported his defense at trial that the abuse allegations were fabricated. Because the cards were not timely disclosed by trial counsel to the prosecutor, they were excluded from evidence. On appeal, the defendant argues that trial counsel was ineffective.

We evaluate a claim of ineffective assistance by applying the familiar two-part test: (1) whether the defendant has demonstrated "serious incompetency, inefficiency, or inattention of counsel-behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," and if so, (2) whether counsel's poor performance "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where, as here, the motion does not include an affidavit of trial counsel, the claim of ineffective assistance of counsel is in its "weakest form ... because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).

To begin, the defendant did not show that the cards were otherwise admissible. See Commonwealth v. Bertrand, 385 Mass. 356, 367 (1982). Furthermore, assuming the cards could have been admitted, the judge did not abuse her discretion in concluding that the absence of the cards did not deprive the defendant of a substantial defense in view of the victim's age at the time the cards were written, the fact that she continued to live with her mother and the defendant after the abuse, and the likelihood that the cards were sent at the direction of the mother. In light of the special deference we give to a motion judge who also presided over the trial, Commonwealth v. Forte, 469 Mass. 469, 488 (2014), we decline to disturb her conclusion that the cards had insignificant evidentiary value. See Commonwealth v. Hudson, 446 Mass. 709, 725-726 (2006).

Order denying motion for new trial affirmed.

      The defendant also cites United States v. Foster, 469 F.2d 1, 4-5 (1st Cir. 1972), for the proposition that the burden is on the Commonwealth to prove that no prejudice resulted from the potential conflict. This argument has no merit because the Foster rule is now expressly limited to circumstances where an attorney is potentially conflicted by joint representation of two or more defendants. United States v. Newton, 326 F.3d 253, 264 n.10 (1st Cir. 2003).

      One of the cards was undated, and the other included discrepancies in the handwriting of the date.

      The defendant also argues that the cumulative effect of these supposed errors requires a new trial. Because we find that neither alleged error prejudiced the defendant, this argument lacks merit. See Commonwealth v. Walker, 421 Mass. 90, 104-105 (1995).


text:
    Mary Ann HICKEY v. Yaron Y. KIMELMAN & others.
    15-P-94
    Appeals Court of Massachusetts.
    Entered: January 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Julie R. Kimelman and Abraham Kimelman.

   The plaintiff appeals from the denial of her motion for relief from judgment pursuant to Mass.R.Civ.P. 60(b)(1), (3), 365 Mass. 828 (1974). We affirm.

Procedural history. The complaint alleges that the defendants negligently maintained a staircase on their property, causing the plaintiff to fall and suffer injuries. It was filed on April 17, 2012, three years after the alleged accident, on the day the statute of limitations would expire. In March, 2013, the defendants served plaintiff's counsel with discovery requests, and, after the plaintiff failed to respond, a motion to compel; nonetheless, discovery was not forthcoming. After the motion to compel was allowed, the plaintiff again failed to respond, and the defendants filed a motion to hold the plaintiff in contempt. Subsequently, a judge ordered that the case be dismissed for failure to prosecute and as a sanction under Mass.R.Civ.P. 37, as amended, 423 Mass. 1406 (1996), for failure to comply with the judge's discovery order. Judgment entered.

Nearly one year after discovering her case had been dismissed, the plaintiff, now acting pro se, moved for relief from the judgment. After a hearing, the motion was denied. This appeal ensued.

Discussion. A motion for relief from judgment "under rule 60(b) is directed to the sound discretion of the motion judge, and we review the judge's ruling for abuse of discretion." Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass. App. Ct. 764, 775 (2006). Here, we discern no such abuse.

With regard to rule 60(b)(1), the motion judge properly applied the Berube factors and determined that the plaintiff's motion failed to show (i) good reason for the nearly year-long delay in filing the motion, and (ii) that her claim had merit. The judge also found that the defendants had been prejudiced by the delay both in the filing of the action on the last day of the limitation period and in the filing of the motion for relief from judgment on nearly the last permissible day. With regard to rule 60(b)(3), the judge correctly ruled that the subsection did not apply because the plaintiff's arguments concerned her counsel's conduct, not that of an adverse party. See Mass.R.Civ.P. 60(b)(3) ("fraud ..., misrepresentation, or other misconduct of an adverse party").

The plaintiff's remaining arguments on appeal also lack merit. Notwithstanding her contention that she did not receive notice of the hearing on her motion for relief from judgment, she appeared, did not object to going forward, and argued at the hearing. Similarly, the plaintiff's argument that the defendants are precluded (by the denial of the motion to dismiss the complaint pursuant to Mass.R.Civ.P. 12 [b], 365 Mass. 754 [1974] ) from raising arguments in response to her motion for relief from judgment lacks merit. See Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005).

Order denying motion for relief from judgment affirmed.

      Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 430-431 (1979).

      The plaintiff's belated allegations against defense counsel are unsupported by the record and do not rise to the level of fraud or misrepresentation.


text:
    Christine A. POLEWARCZYK v. Walter B. HERBERT.
    17-P-344
    Appeals Court of Massachusetts.
    Entered: January 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant (father) appeals from the judgment of the Probate and Family Court in favor of the plaintiff (mother) on her complaint for authorization to remove the parties' minor child from the Commonwealth. We affirm.

Background. The parties married in 2006 in Arizona, and their only child was born in California in 2009. The family moved to Georgia after the child's birth, and in 2011, they moved to Massachusetts. In 2013, they divorced. Pursuant to a separation agreement, which was incorporated into the divorce judgment, the parties agreed, inter alia, that the mother would have sole legal and physical custody of the child, and the father would not contact or interact with the child and would stay away from her. The father has no ongoing relationship with the child.

In 2015, the mother filed a complaint, pursuant to G. L. c. 208, § 30, seeking authorization to remove the child from Massachusetts. At trial, the mother testified that she has no close familial relationships in Massachusetts. Although she works primarily from home, her job requires her to travel several times per year. When she does, she cannot rely on her family to take care of the child; instead, she has relied on a series of paid babysitters-a situation that she considers less than ideal.

The mother also testified that her closest friend lives in a small town in New York, where the mother desires to move with the child. She wants to be near her friend whom she considers family. They have been friends since high school, and despite the physical distance between their residences, they have managed to remain close and visit. The mother has visited the local schools in New York and was impressed by their science and math curriculum. At trial, the father's counsel cross-examined the mother on the accuracy of her financial disclosures and her petition for bankruptcy.

The mother's friend testified that she has visited with the mother and the child on at least seven occasions since 2013. Her children have established a bond with the child, who at the time of the trial was six years old and in first grade. The friend and her family have roots in their New York community and know the school district. The friend is willing and able to help with the child's care when the mother needs to travel for work.

Discussion. On appeal, the father argues that the trial judge erred in finding that the mother had a "good, sincere reason for wanting to remove to another jurisdiction," Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985), despite supposed discrepancies in her financial disclosures and her bankruptcy petition. "[F]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. We do not substitute our judgment of the evidence for the subsidiary findings of the judge absent clear error or a firm conviction that a mistake has been committed." Mason v. Coleman, 447 Mass. 177, 186 (2006) (quotations omitted). Here, the trial judge credited the testimony of the mother and of her friend that the move to New York would provide a real advantage to the mother because in New York she would have the emotional and physical support of her friend and her friend's family. In contrast, she has no close family or friends in Massachusetts. She cannot rely on the few family members in the area to provide care for the child. In addition, the father has no ongoing relationship with the child. The father's argument that the mother did not show, in addition, an economic benefit from the move in light of a pending bankruptcy fails to address the real advantages to the mother that the trial judge found. See Altomare v. Altomare, 77 Mass. App. Ct. 601, 606-608 (2010).

The father also argues that the trial judge abused her discretion in finding that the move was in the best interest of the child. We disagree. The trial judge found that, like the mother, the child will benefit from the move to New York, where the closest relationship she has to a family reside. See Woodside v. Woodside, 79 Mass. App. Ct. 713, 716 (2011). The child will also benefit from receiving care from the friend when the mother needs to travel for her work. In addition, while the child already has a good relationship with the friend and her children, she has no ongoing relationship with the father.

Judgment affirmed.

      At the time of the filing of the complaint, neither the mother nor child had resided in Massachusetts for five consecutive years. Because neither party argues that G. L. c. 208, § 30, does not govern our analysis, we assume, without deciding, that the statute applies.

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


text:
    Laura A. CEURVELS v. Jeffrey R. MURPHY, Jr.
    17-P-404
    Appeals Court of Massachusetts.
    Entered: January 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Laura A. Ceurvels (mother) appeals from a judgment of the Probate and Family Court determining that Jeffrey R. Murphy, Jr. (father) was not in contempt of court for failing to pay child support. The mother asserts that because the parties' subsequent agreement to reduce child support, which was not court-approved, was not enforceable and the father admitted to paying less than the court-ordered amount of child support, the judge erred in failing to find the father in contempt of court. Consequently, she requests that we reverse the judgment. Alternatively, the mother requests that we remand the case to the Probate and Family Court for a rehearing in which she would be afforded an opportunity to present further evidence of the father's nonpayment because, according to the mother, the judge erroneously deprived her of an opportunity to present this evidence. We affirm.

The mother correctly asserts that at the contempt hearing, the father admitted to not having paid his full child support obligation. The parties' divorce settlement required the father to pay $500 per week, and the father admitted to paying as little as $250 per week at times. The mother also correctly argues that "an agreement to reduce child support that has not been approved by the court cannot constitute a defense to a complaint for civil contempt." Rosen v. Rosen, 90 Mass. App. Ct. 677, 692 (2016). Nevertheless, a parent's failure to meet his financial obligations does not necessarily compel a finding of contempt.

In addition to establishing that the father was in "disobedience of a clear and unequivocal command," the mother also bore the burden of establishing that the father had a present ability to pay. Birchall, petitioner, 454 Mass. 837, 852-853 (2009), quoting from Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 1), 424 Mass. 430, 443 (1997). Although the judge did not include any comment about the mother's lack of proof on this element in the rationale for his judgment, the father testified that he was unemployed and unable to meet the financial obligations to which he agreed in the divorce settlement. This testimony is uncontroverted. Additionally, as conceded by the mother, she did not establish the extent of the father's unpaid child support, nor the time periods he had failed to pay the full amount. On this record, therefore, we cannot conclude the judge abused his discretion in finding that the mother had failed to establish that the father was in contempt. See K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014) (no finding of contempt for father's failure to pay mother her full portion of his liquidated deferred compensation account was not an abuse of discretion). See also Halpern v. Rabb, 75 Mass. App. Ct. 331, 336 (2009) (because of ambiguities in separation agreement, judge's implicit finding that father was not in contempt for failing to pay additional child support based on specific income was not an abuse of discretion).

In addition, the mother now faults the judge for failing to order an evidentiary hearing. At the time of the hearing, the mother did not raise an objection to the procedure employed by the judge. Accordingly, the issue is waived. Kraft v. Police Commr. of Boston, 417 Mass. 235, 241 (1994). See Davis v. Tabachnick, 425 Mass. 1010 (1997) (self-represented parties held to same standard as those represented by counsel). In any event, even if the issue was not waived, the mother's assertion that she is entitled to an evidentiary hearing lacks merit. See Mahoney v. Mahoney, 65 Mass. App. Ct. 537, 540-541 (2006). A judge need not hold an evidentiary hearing on a contempt complaint when there are no objections to the use of an informal procedure. Ibid.

Here, the record does not reflect that the mother requested an evidentiary hearing or objected to the procedure the judge employed. Moreover, the judge gave the mother ample opportunity to supplement the record, which resulted in the mother raising additional issues once the judge began winding down the hearing but did not result in the proffer of any other evidence regarding the father's finances or his nonpayment. Contrast id. at 539-540 (evidentiary hearing warranted on remand when judge cut off counsel's argument at hearing on contempt complaint, the parties disputed most facts, and counsel suggested holding an evidentiary hearing). Accordingly, we discern no abuse of discretion.

Judgment on December 23, 2015, complaint for contempt affirmed.

      The judgment from which this appeal is taken was on the December 23, 2015, complaint for contempt.

      A single justice of this court allowed the plaintiff's motion to file a late notice of appeal. The notice was filed on February 8, 2017.


text:
    COMMONWEALTH v. Scott COOPER.
    16-P-948
    Appeals Court of Massachusetts.
    Entered: January 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Scott Cooper, was convicted in 2002 of multiple counts of rape of a child by force, G. L. c. 265, § 22A, and indecent assault and battery on a child, G. L. c. 265, § 13B. We affirmed the convictions. Commonwealth v. Cooper, 69 Mass. App. Ct. 1110 (2007). The defendant now appeals from the denial of his motion for a new trial. We affirm.

"[W]e review the denial of a motion for a new trial for 'a significant error of law or other abuse of discretion.' " Commonwealth v. Duart, 477 Mass. 630, 634 (2017), quoting from Commonwealth v. Forte, 469 Mass. 469, 488 (2014). We "grant[ ] 'special deference' to the rulings of a motion judge who, like the judge here, also presided at trial." Commonwealth v. Thomas, 89 Mass. App. Ct. 422, 430 (2016), quoting from Commonwealth v. Bonnett, 472 Mass. 827, 833 (2015). "An evidentiary hearing is not required unless the defendant raises a 'substantial issue,' based on the seriousness of the claim and the adequacy of his showing." Commonwealth v. Bolton, 92 Mass. App. Ct. 469, 475 n.8 (2017), quoting from Commonwealth v. Chatman, 466 Mass. 327, 334 (2013).

The bulk of the defendant's argument is devoted to claims of ineffective assistance of counsel. To show ineffective assistance of counsel, the defendant "must demonstrate that (1) defense counsel's conduct fell 'measurably below that which might be expected from an ordinary fallible lawyer' ... and (2) he was prejudiced by counsel's conduct in that it 'likely deprived the defendant of an otherwise available, substantial ground of defence.' " Commonwealth v. Lys, 91 Mass. App. Ct. 718, 720 (2017), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In assessing whether the defendant was prejudiced, "a defendant is entitled to a new trial 'if we have a serious doubt whether the result of the trial might have been different had the error not been made.' " Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 439 (2016), quoting from Commonwealth v. Millien, 474 Mass. 417, 432 (2016).

The defendant lists numerous claims of ineffective assistance: (1) failure to investigate; (2) failure to examine witness bias; (3) failure to use prior inconsistent statements in cross-examination; (4) failure "to adequately consult with defendant"; (5) failure "to investigate potential grounds for a defense"; (6) failure to "reveal evidence at appeal that would exonerate the defendant"; (7) failure "to raise issue at appeal, such as prosecut[orial]/ selective prosecut[orial] misconduct"; and (8) failure "to raise issue that prosecutor altered evidence and introduced false evidence and perju[r]ed testimony at trial." With each claim, however, the defendant fails (and failed before the motion judge) to provide any explanation or support. For example, to raise a substantial issue as to failures in cross-examination, the defendant would need to identify what information should have been used to impeach which witness and either show where that information appears in the record or produce affidavits establishing that information. Similarly, to raise a substantial issue as to failure to raise prosecutorial misconduct, the defendant would need to identify the prosecutorial misconduct and either show where the evidence of that misconduct appears in the record or produce affidavits showing the misconduct. The same is true of all of the defendant's claims of ineffective assistance. To make out a substantial issue requiring an evidentiary hearing, the defendant needs to identify his claims and support them with either citations to the record or affidavits. See Commonwealth v. Brown, 378 Mass. 165, 171 (1979).

The same problem underlies the defendant's other claim or claims of error, the only one of which that appears with any clarity is a claim of newly discovered evidence. "Where the defendant moves for a new trial on the basis of newly discovered evidence, the defendant 'must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction.' " Commonwealth v. Drayton, 473 Mass. 23, 31 (2015), quoting from Commonwealth v. Grace, 397 Mass. 303, 305 (1986). To accomplish this, the defendant needs to identify the newly discovered evidence and support it with affidavits or other evidence. An unsupported assertion of newly discovered evidence is not adequate to make out a substantial issue. See Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004), quoting from Commonwealth v. Britto, 433 Mass. 596, 608 (2001) ("A defendant's submissions in support of a motion for a new trial need not prove the factual premise of that motion, but they must contain sufficient credible information to 'cast doubt' on the issue" [citation omitted] ). Accordingly, on the record provided by the defendant, the motion judge properly denied the motion for a new trial without conducting an evidentiary hearing.

Order denying motion for new trial affirmed.

      The defendant's appeal is properly before us. Cooper v. Commonwealth, 474 Mass. 1004, 1005 (2016).


text:
    COMMONWEALTH v. Ian HASKELL.
    16-P-506
    Appeals Court of Massachusetts.
    Entered: January 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), third offense. He now appeals, arguing that the judge erred in denying his motion to suppress, and in denying his motions for a required finding of not guilty. We affirm.

Motion to suppress. The defendant argues first that the judge erred in partially denying his motion to suppress. He contends that (1) the arresting officer's order to get out of his truck (exit order) was unlawful because there was no reasonable fear for the officer's safety, and (2) all of the statements he made after he got out of his truck in response to the exit order should have been suppressed because, at that time, he was "effectively arrested" without receiving proper Miranda warnings. We disagree.

The motion judge found that, at approximately 9:00 P.M. in the evening of September 7, 2013, Officer Nathan Ferbert of the Middleborough police department stopped the defendant for speeding. The judge found that the stop was justified, and the defendant does not challenge the stop itself. See Commonwealth v. Obiora, 83 Mass. App. Ct. 55, 57 (2013).

While Ferbert was speaking with the defendant through the driver's side window, the officer observed that the defendant had glassy and bloodshot eyes and slurred speech; the officer also detected an odor of alcohol. "Either immediately before or immediately after telling the defendant to get out of the truck, Ferbert asked the defendant where he was coming from. The defendant indicated that he had just met up with someone 'behind the prison' and that before that, he had been at a party." The defendant denied that he had been drinking.

Ferbert ordered the defendant to get out of the truck and then conducted a patfrisk. He then placed the defendant in handcuffs, to await the arrival of a second officer. The defendant was not under arrest at that time, and Ferbert did not question him while he was in handcuffs. The second officer arrived on the scene within three or four minutes, and the officers then removed the handcuffs so that they could conduct field sobriety tests. Before he began, and in response to Ferbert's question, the defendant informed the officer that he had "an old leg injury" that might affect his ability to perform the tests. Nonetheless, he agreed to take the tests. Ferbert instructed the defendant on the performance of the nine-step walk and turn, and the one-legged stand. While he was performing the tests, the defendant also asked the officer some questions about the test.

At the motion to suppress hearing, the judge found that the defendant was, in fact, in custody while handcuffed, although not under arrest. The judge also concluded that Ferbert had reasonable "ongoing safety concerns" justifying temporarily placing the defendant in handcuffs to await the arrival of another officer to assist.

In reviewing a ruling on a motion to suppress evidence, " 'we accept the judge's subsidiary findings of fact absent clear error,' but 'independently review the judge's ultimate findings and conclusions of law.' " Commonwealth v. Jewett, 471 Mass. 624, 628 (2015), quoting from Commonwealth v. Tyree, 455 Mass. 676, 682 (2010). Here, the defendant challenges specifically the judge's conclusion that Ferbert's safety concerns justified the exit order. This argument fails.

Ferbert's safety concerns included the time and location of the stop ("on an extremely dark, isolated, rural road"); the officer's familiarity with the defendant's reputation with local police (for "violence and drug involvement"); and the fact that the officer was alone at the scene, at least initially. The judge found Ferbert's testimony on these issues "entirely credible" and "objectively reasonable." We see no error. See Commonwealth v. Torres, 433 Mass. 669, 673 (2001), quoting from Commonwealth v. Gonsalves, 429 Mass. 658, 664 ("[It] does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns").

In addition, the exit order was justified by the officer's reasonable suspicion that the defendant was operating the vehicle while under the influence of alcohol. See Obiora, 83 Mass. App. Ct. at 58 ("[T]here are three bases upon which an exit order issued to a passenger in a validly stopped vehicle may be justified: (i) an objectively reasonable concern for safety of the officer, (ii) reasonable suspicion that the passenger is engaged in criminal activity, and (iii) 'pragmatic reasons' "). See also Commonwealth v. Feyenord, 445 Mass. 72, 75-76 (2005). We see no error in the judge's factual findings, or in denying the defendant's motion to suppress as it relates to the field sobriety tests and to the statements he made. See Jewett, supra.

The statements themselves fall into three groups. First are the defendant's answers to the officer's questions about where he was coming from and whether he had been drinking. At that point, "either immediately before or immediately after" the exit order, the defendant was not in custody. No Miranda warnings were required and the defendant does not contend otherwise; his argument for suppression of those statements rests solely on his contention that the exit order was unlawful and everything that followed was the fruit of that poisonous tree.

The second statement came in response to the officer's question about whether anything would prevent the defendant from taking field sobriety tests; the defendant responded that he had an old leg injury. That statement was not incriminating; in fact, the defendant offered medical records to corroborate that claim as the only evidence in his case. Assuming, arguendo, that the defendant could reasonably be considered to have been in custody at that time, any error in refusing to suppress his statement about his leg injury clearly was harmless beyond a reasonable doubt. Cf. Commonwealth v. Hoyt, 461 Mass. 143, 154-155 (2011). The remaining statements were volunteered, and we agree with the motion judge's conclusion that the "defendant's spontaneous statements in the course of taking the tests are obviously not subject to suppression on Miranda grounds." See Commonwealth v. Brown, 83 Mass. App. Ct. 772, 776-777 (2013).

Finally, the field sobriety tests themselves, that is, "[t]ests of physical coordination, such as walking a straight line, raising one leg for a specified number of seconds, and touching one's nose with one's index finger, are not testimonial because they do not 'reveal[ ] the subject's knowledge or thoughts concerning some fact.' Commonwealth v. Brennan, 386 Mass. 772, 778 (1982). The responses of a person impaired by alcohol to such tests are incriminating 'not because the tests [reveal the] defendant's thoughts, but because [the defendant's] body's responses [differ] from those of a sober person.' People v. Hager, 69 N.Y.2d 141, 142 (1987)." Brown, supra. The motion to suppress was properly denied.

Sufficiency of evidence. The defendant also argues that the judge erred in denying his motions for a required finding of not guilty. He contends that there was insufficient evidence to establish that he was under the influence of alcohol, or that he was operating his truck on a public way. We disagree.

When reviewing the denial of a motion for a required finding of not guilty, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017), citing Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable.' " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707, 713 (2014).

For the defendant to be found guilty of operating a motor vehicle while under the influence of alcohol, the Commonwealth must "prove that the defendant (1) operated a motor vehicle, (2) on a public way, (3) while under the influence of alcohol." Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017). See G. L. c. 90, § 24(1)(a )(1). Here, Ferbert testified that, while parked and "running radar" at the intersection of Murdock and Summer Streets, he captured on radar the defendant driving a small red pickup truck while speeding past him. Ferbert also identified the defendant, the only passenger, as the driver of the truck. Operation was not a live issue at trial.

Ferbert further testified that Summer Street is a paved road (until the shoulder, where it meets grass) with a dividing line, located in a rural area where the police monitor traffic flow. The evidence, therefore, was sufficient for the jury to infer that the defendant was driving his truck on a public way. See Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 438-439 (2002) (elements such as operation on a public way may be proved by circumstantial evidence).

After he got out of his truck, the defendant performed two field sobriety tests on an area in the road where "[t]he pavement's flat and smooth"; although, as noted, the area is dark (with no street lights). Ferbert used his flashlight to illuminate the ground while the defendant was performing the tests. There is no white fog line in this area of the road, but there is a clear delineation between the road and the grassy shoulder providing a straight line to follow. In performing the tests, the defendant exhibited two "clues" during the nine-step walk and turn, and three "clues" during the one-legged stand, indicating a failure of each of the tests. Based on these failure clues, Ferbert opined that the defendant was intoxicated. See Commonwealth v. Canty, 466 Mass. 535, 544 (2013) ("[A] lay witness in a case charging operation of a motor vehicle while under the influence of alcohol may offer his opinion regarding a defendant's level of sobriety or intoxication ...").

On this record, we are satisfied that the Commonwealth presented sufficient evidence, both direct and circumstantial, for the jury to conclude beyond a reasonable doubt that the defendant operated a motor vehicle on a public way while under the influence of intoxicating liquor. See Oberle, 476 Mass. at 547. See also G. L. c. 90, § 24(1)(a )(1).

Judgment affirmed.

      Prior to trial, the defendant pleaded guilty to an additional charge of possession of a class B substance; the judge allowed the Commonwealth's motion to dismiss a charge of negligent operation of a motor vehicle.

      In addition, the defendant failed to produce his license or a truck registration, stating that he was driving a friend's truck. He was not charged with those civil infractions.

      The patfrisk produced a bag of marijuana. The officer testified that, during the patfrisk, he felt "just a bulk, like a handful size of something that felt like packing peanuts." He asked the defendant what it was and the defendant said, "coke," which the officer understood to mean cocaine. Ferbert then seized the item and, when he saw it, believed it to be marijuana. A quantity of cocaine was later seized at the police station after the defendant was arrested.

      Specifically, the defendant asked at one point whether "he had to do a tenth step." At another point, "he asked, 'Five, right?' kind of like a rhetorical question."

      For that reason, the defendant's motion to suppress was allowed in part. Specifically, the judge suppressed the marijuana; she also suppressed the defendant's statement that the item was "coke," and any other statements he made about the marijuana at the roadside.

      That statement was the only statement the officer described in the hearing on the motion to suppress for that period of time. At trial, the officer also testified that the defendant told him "he wasn't taking any medication"; "he wore glasses, but he didn't ... need them"; and he worked "as a concrete worker." There was no objection to that testimony, except to the question about the defendant's occupation, on the grounds of relevance. The judge properly overruled that objection.

      The defendant's motion presented at the close of the Commonwealth's evidence was denied, as was the motion presented again at the close of all evidence.

      Specifically, during the "nine-step walk and turn test," after walking heel to toe for nine steps, the defendant then walked backwards rather than turning around to walk forward the nine steps back to where he began; he also walked back ten (instead of nine) steps before Ferbert stopped him. During his first attempt at the one-legged stand (requiring the defendant to stand on one leg, with hands by his side, for thirty seconds), the defendant put his leg down after five seconds; on his second attempt, he raised his arms from his sides almost immediately after lifting his leg and fell backwards, bracing himself on his truck; the third attempt was much the same as the second, the defendant fell backwards a few seconds after lifting his leg.


text:
    COMMONWEALTH v. Winston SANDERS.
    17-P-107
    Appeals Court of Massachusetts.
    Entered: January 10, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In this interlocutory appeal, the Commonwealth appeals from the portion of the order allowing the defendant's motion to suppress items obtained during a search of his residence, conducted pursuant to a warrant. We reverse.

The motion judge concluded, as the defendant argued, that the facts asserted in the affidavit did not provide a sufficient nexus with the defendant's residence to establish probable cause to search it. We disagree. "To establish probable cause to obtain a search warrant, the affidavit must 'contain enough information ... to determine that the items sought are related to the criminal activity under investigation, and that they may reasonably be expected to be located in the place to be searched.' " Commonwealth v. O'Day, 440 Mass. 296, 300 (2003), quoting from Commonwealth v. Cefalo, 381 Mass. 319, 328 (1980). The affidavit must show "a sufficient nexus between the defendant's drug-selling activity and his residence to establish probable cause to search the residence." Id. at 304. "[O]ur inquiry as to the sufficiency of the search warrant application always begins and ends with the 'four corners of the affidavit.' " Id. at 297, quoting from Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). "[T]he affidavit should be read as a whole, not parsed, severed, and subjected to hypercritical analysis." Id. at 301, quoting from Commonwealth v. Blake, 413 Mass. 823, 827 (1992).

Here, an experienced narcotics officer observed the defendant leave his residence on three separate occasions to drive directly to a prearranged location in order to sell drugs to a confidential informant. The contours of each controlled sale through completion were observed by law enforcement officers. On each occasion, the confidential informant stated that the defendant was the seller, and turned over the drugs to the officers. To be sure, the affidavit does not state whether the defendant returned to his residence on any of these three occasions. It is also true that we cannot exclude the possibility that the defendant may also have stored drugs in the car he used to drive to the transactions, rather than in his house. But "[n]o bright-line rule can establish whether there is a nexus between suspected drug dealing and a defendant's home," Commonwealth v. Escalera, 462 Mass. 636, 643 (2012), nor does the law require that every alternate possibility be excluded. See id. at 646 ("That evidence of the defendant's drug sales might also have been found in the defendant's vehicle does not detract from the conclusion that there was probable cause to search [his residence]").

The observations here were sufficient to establish a pattern of behavior connecting the defendant's residence to his drug business. See id. at 645-646 (nexus between the defendant's drug dealing activities and home was established where police observed the defendant drive from his home directly to drug transactions on three occasions and return each time); Commonwealth v. Tapia, 463 Mass. 721, 726-728 (2012) (nexus established where police, while effectuating three controlled buys, observed the defendant leaving her residence, arriving at the drug deal location immediately thereafter for each, and returning twice); Commonwealth v. Hardy, 63 Mass. App. Ct. 210, 212-213 (2005) (nexus established where the defendant drove directly from his residence to the drug transaction during two controlled buys and other transactions that appeared to be drug transactions); Commonwealth v. Colon, 80 Mass. App. Ct. 162, 167 (2011) (nexus established where police observed the defendant leave his residence twice prior to delivering drugs and return three times even though there was no evidence of the transactions taking place at the defendant's home).

So much of the order on the defendant's motion as allowed suppression of the evidence recovered in the defendant's home is accordingly reversed, and a new order shall enter denying the motion in its entirety.

So ordered.

Reversed in part.

      We have doubt that Commonwealth v. Smith, 57 Mass. App. Ct. 907, 908-909 (2003), upon which the motion judge heavily relied, has much vitality, if any, after the decision in Commonwealth v. Escalera, supra.


text:
    COMMONWEALTH v. Rachel M. LEE.
    17-P-257
    Appeals Court of Massachusetts.
    Entered: January 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant, Rachel M. Lee, of operating a motor vehicle on a public way while under the influence of alcohol, see G. L. c. 90, § 24(1)(a )(1) (OUI). In this direct appeal, the defendant contends that (1) the judge abused his discretion in admitting limited evidence of the defendant's performance on a horizontal gaze nystagmus (HGN) test; (2) the admission of such testimony interfered with the defendant's ability to cross-examine the arresting officer; and (3) the testimony misled the jury. We affirm.

1. Admission of HGN testimony. The defendant contends that the judge abused his discretion in allowing the arresting officer to testify about the defendant's performance on an HGN test without requiring the Commonwealth to lay the foundation for admission of scientific evidence. We review the defendant's claim for an error of law or abuse of discretion. Commonwealth v. Pytou Heang, 458 Mass. 827, 851 (2011).

The defendant correctly asserts that the Commonwealth must lay an evidentiary foundation for scientific testimony before introducing testimony on an HGN test because it "relies on an underlying scientific proposition" that is "not within the common experience of jurors." Commonwealth v. Sands, 424 Mass. 184, 188 (1997). This is different from ordinary field sobriety tests that measure a person's "balance, coordination, and mental acuity," because "[a] lay juror understands that intoxication leads to diminished" capacity for all three. Ibid. Without the proper foundation, any mention of the use of an HGN test is generally improper. Commonwealth v. Dumais, 60 Mass. App. Ct. 70, 73 (2003).

However, here, the judge confined the arresting officer's testimony to his observation of the defendant's physical performance and mental acuity during the HGN test. For example, the officer testified about the defendant's failure to touch his finger with her own from a distance of about one foot away, and her inability to comply with his direction that she follow his finger without moving her head from side to side. The officer made no mention of HGN or an involuntary eye movement. The testimony in fact did not refer to an HGN test, but instead merely related the officer's percipient observations of the defendant's ability to coordinate her movements in accordance with the officer's instructions. Accordingly, where the judge limited the testimony to admissible evidence pertaining to the defendant's motor skills and mental acuity, we see no error of law or abuse of discretion. See Sands, 424 Mass. at 188.

2. Interference with cross-examination. The defendant also asserts that the admission of the above-described testimony violated her confrontation rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights because she was unable to confront the arresting officer regarding the problems associated with the HGN test. This claim lacks any merit.

"[T]he judge has broad discretion to determine the scope and extent of cross-examination," Commonwealth v. Johnson, 431 Mass. 535, 538 (2000), and need not permit the defense to cross-examine regarding properly excluded evidence. See Commonwealth v. Syrafos, 38 Mass. App. Ct. 211, 219 (1995) (attempts to elicit inadmissible evidence on cross-examination properly curtailed).

Notably, trial counsel mounted a vigorous cross-examination of the witness, which included the witness's acknowledgement that the finger touch and head movement tests were not standardized field sobriety tests. However, the arresting officer was not an expert on HGN, the Commonwealth did not introduce HGN evidence, and the defendant wisely elected not to open the door to inculpatory evidence. In our view, there was no error, and the judge's ruling did not hamper proper cross-examination of a relevant trial issue. See ibid.

3. Misleading the jury. Finally, the defendant contends that the challenged testimony misled the jury. We disagree. Misleading or confusing evidence is inadmissible only if the potential for confusion substantially outweighs its relevance. Commonwealth v. Beausoleil, 397 Mass. 206, 217 (1986). The Commonwealth needed to prove the defendant's diminished capacity to operate a motor vehicle safely. Commonwealth v. AdonSoto, 475 Mass. 497, 509 (2016). Evidence of the defendant's physical coordination and mental acuity is competent proof of this element, and the Commonwealth did not present the evidence in a confusing manner. Lay jurors understand that intoxication decreases coordination and mental acuity, see Sands, supra, and the arresting officer, without mentioning HGN, only testified to his observations of the defendant's physical coordination and mental acuity during her performance of the test. We discern no error.

Judgment affirmed.

      The defendant was also charged with failure to stop for a police officer, see G. L. c. 90, § 25, but the judge dismissed that charge before trial upon the defendant's request. After the jury verdict, the defendant pleaded guilty to the subsequent offense portion of the charge.

      "Nystagmus is 'an abnormal and involuntary movement of the eyeballs from side to side or up and down, but usually from side to side.' " Commonwealth v. Sands, 424 Mass. 184, 186 (1997), quoting from State v. Merritt, 36 Conn. App. 76, 84 (1994). "The underlying theory is that there is a strong correlation between the degree of a person's intoxication and the angle at which the person's eyes begin to exhibit evidence of nystagmus." Sands, supra at 187.